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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 18, 1998
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
THE ALLSTATE CORPORATION ALLSTATE FINANCING III
(Exact name of registrant as specified in its charter) ALLSTATE FINANCING IV
ALLSTATE FINANCING V
ALLSTATE FINANCING VI
(Exact name of each registrant as specified in its
certificate of trust)
DELAWARE DELAWARE
(State or other jurisdiction of incorporation or (State or other jurisdiction of organization of the trusts)
organization) TO BE APPLIED FOR
(I.R.S. Employer Identification No.)
36-3871531 C/O THE ALLSTATE CORPORATION
(I.R.S. Employer Identification No.) 2775 SANDERS ROAD
NORTHBROOK, ILLINOIS 60062
2775 SANDERS ROAD (847) 402-5000
NORTHBROOK, ILLINOIS 60062 (Address, including zip code, and telephone number,
(847) 402-5000 including area
(Address, including zip code, and telephone number, code, of registrant's principal executive offices)
including area
code, of registrant's principal executive offices)
</TABLE>
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ROBERT W. PIKE
VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
THE ALLSTATE CORPORATION
2775 SANDERS ROAD
NORTHBROOK, ILLINOIS 60062
(847) 402-5000
(Name, address, including zip code, and telephone number, including area code,
of agent for service of each registrant)
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Copy to:
Willard G. Fraumann
Kirkland & Ellis
200 East Randolph Drive
Chicago, Illinois 60601
(312) 861-2000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement, as determined
in light of market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO BE AMOUNT TO BE AGGREGATE PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1) PER UNIT(2) OFFERING PRICE(1)(2) REGISTRATION FEE
<S> <C> <C> <C> <C>
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Debt Securities of The Allstate Corporation(3)........ NA
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Preferred Securities of Allstate Financing III, IV, V
and VI............................................... NA
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Preferred Stock, $1.00 par value, of The Allstate
Corporation(3)....................................... NA
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Guarantees of Preferred Securities of Allstate
Financing III, IV, V and VI by The Allstate
Corporation and certain backup undertakings(4)....... NA
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Warrants to Purchase Debt Securities(5)...............
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Total................................................ $2,000,000,000 100% $2,000,000,000 $590,000
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</TABLE>
(1) In United States dollars or the equivalent thereof, in any other currency,
currency unit or units, or composite currency or currencies. Such amount
represents the aggregate offering price of the Preferred Securities of
Allstate Financing III, IV, V and VI and the Debt Securities, Preferred
Stock and Warrants to Purchase Debt Securities of The Allstate Corporation
and the exercise price of any Securities issuable upon exercise of Warrants
of The Allstate Corporation. Subordinated Debt Securities of The Allstate
Corporation may be issued and sold to Allstate Financing III, IV, V and VI,
in which event such Subordinated Debt Securities may later be distributed to
the holders of Preferred Securities.
(2) Estimated for the sole purpose of computing the registration fee pursuant to
Rule 457(o) under the Securities Act of 1933.
(3) Also includes such indeterminate number of shares of Preferred Stock as may
be issued upon conversion of or exchange for any Debt Securities or
Preferred Stock that provide for conversion or exchange into other
securities. No separate consideration will be received for the Debt
Securities or Preferred Stock issuable upon conversion of or in exchange for
such other securities.
(4) No separate consideration will be received for any Guarantees. The
Guarantees include the rights of holders of the Preferred Securities under
the Guarantees and certain backup undertakings, comprised of obligations of
The Allstate Corporation under the Subordinated Indenture and the
Supplemental Indentures thereto and under the Declarations of Trust of each
of Allstate Financing III, IV, V and VI, each as described in the
Registration Statement.
(5) Warrants to Purchase Debt Securities may be offered and sold separately or
together with other Debt Securities.
---------------------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
SUBJECT TO COMPLETION, DATED AUGUST 18, 1998
PROSPECTUS
$2,000,000,000
THE ALLSTATE CORPORATION
DEBT SECURITIES, DEBT WARRANTS AND PREFERRED STOCK
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ALLSTATE FINANCING III ALLSTATE FINANCING V
ALLSTATE FINANCING IV ALLSTATE FINANCING VI
PREFERRED SECURITIES
FULLY AND UNCONDITIONALLY GUARANTEED BY
THE ALLSTATE CORPORATION
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The Allstate Corporation, a Delaware corporation (the "Company"), may offer,
from time to time, (i) its unsecured debt securities, which may be either senior
debt securities ("Senior Debt Securities") or subordinated debt securities
("Subordinated Debt Securities" and, together with the Senior Debt Securities,
the "Debt Securities"), consisting of debentures, notes and/or other unsecured
evidences of indebtedness, (ii) Warrants to purchase Debt Securities (the "Debt
Warrants") and (iii) shares of its Preferred Stock, par value $1.00 per share
(the "Preferred Stock"). Unless otherwise specified in a Prospectus Supplement,
the Senior Debt Securities, when issued, will be unsecured and will rank on a
parity with all other unsecured and unsubordinated indebtedness of the Company.
The Subordinated Debt Securities, when issued, will be subordinated in right of
payment to all Senior Indebtedness (as hereinafter defined) of the Company.
Allstate Financing III, Allstate Financing IV, Allstate Financing V and
Allstate Financing VI (each, an "Allstate Trust"), each a statutory business
trust formed under the laws of the State of Delaware, may offer, from time to
time, preferred securities, representing undivided beneficial interests in the
assets of the respective Allstate Trust ("Preferred Securities"). The Company
will be the owner of the Common Securities (as hereinafter defined and, together
with the Preferred Securities, the "Trust Securities") of each Allstate Trust.
The payment of periodic cash distributions ("distributions") with respect to
Preferred Securities of each of the Allstate Trusts out of moneys held by each
of the Allstate Trusts, and payment on liquidation, redemption or otherwise with
respect to such Preferred Securities, will be guaranteed by the Company to the
extent described herein (each a "Preferred Securities Guarantee"). See
"Description of Preferred Securities Guarantees." Unless otherwise specified in
a Prospectus Supplement, the Company's obligations under the Preferred
Securities Guarantees will be subordinate and junior in right of payment to all
other liabilities of the Company and rank pari passu with the most senior
preferred stock, if any, issued from time to time by the Company. Subordinated
Debt Securities may be issued and sold from time to time in one or more series
to an Allstate Trust, or a trustee of such Allstate Trust, in connection with
the investment of the proceeds from the offering of Trust Securities of such
Allstate Trust. The Subordinated Debt Securities purchased by an Allstate Trust
may be subsequently distributed pro rata to holders of Preferred Securities and
Common Securities in connection with the dissolution of such Allstate Trust as
may be described in an accompanying Prospectus Supplement. The Preferred
Securities Guarantees, when taken together with the Company's obligations under
the Subordinated Debt Securities, the Indenture related thereto and the
Declaration of Trust, including its obligations to pay costs, expenses, debts
and liabilities of the Allstate Trusts (other than with respect to the Trust
Securities), will provide a full and unconditional guarantee on a subordinated
basis by the Company of payments due on the Preferred Securities. The Debt
Securities, Debt Warrants, Preferred Stock and the Preferred Securities and the
related Preferred Securities Guarantees are collectively called the
"Securities."
The Securities may be offered as separate series or issuances at an
aggregate initial public offering price not to exceed $2,000,000,000 or, if
applicable, the equivalent thereof in one or more foreign currencies or currency
units, as shall be designated by the Company, in amounts, at prices and on terms
to be determined in light of sale conditions at the time of sale and as set
forth in the applicable Prospectus Supplement.
Certain specific terms of the particular Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement, including, where applicable (i) in the case of Debt Securities, the
title, aggregate principal amount, denominations (which may be in United States
dollars, in any other currency or in composite currencies), maturity,
subordination terms, if any, interest rate, if any (which may be fixed or
variable), and time of payment of any interest, any terms for redemption at the
option of the Company or the holder, any terms for sinking fund payments, any
listing on a securities exchange and the initial public offering price and any
other terms in connection with the offering and sale of such Debt Securities;
(ii) in the case of Debt Warrants, the Debt Securities for which each such Debt
Warrant is exercisable, the exercise price, duration, detachability, and call
provisions; (iii) in the case of Preferred Securities, the designation and
number, liquidation preference per Preferred Security, initial public offering
price, any listing on a securities exchange, distribution rate (or method of
calculation thereof), dates on which distributions shall be payable and dates
from which distributions shall accrue, any voting rights, any redemption,
exchange or sinking fund provisions, any other rights, preferences, privileges,
limitations or restrictions relating to the Preferred Securities and the terms
upon which the proceeds of the sale of the Preferred Securities shall be used to
purchase a specific series of Subordinated Debt Securities of the Company; and
(iv) in the case of Preferred Stock, the specific title, the aggregate amount,
any dividend, liquidation and other rights, any redemption provisions, any
listing on a securities exchange, any sinking fund provisions, the initial
public offering price and any other terms in connection with the offering and
sale of such Preferred Stock.
The Company and/or each of the Allstate Trusts may sell Securities to or
through underwriters or dealers, and also may sell Securities directly to other
purchasers or through agents. See "Plan of Distribution." The accompanying
Prospectus Supplement sets forth the names of any underwriters, dealers or
agents involved in the sale of the Securities in respect of which this
Prospectus is being delivered, the principal amounts, if any, to be purchased by
underwriters, dealers or agents and the compensation, if any, of such
underwriters, dealers or agents.
This Prospectus may not be used to consummate sales of Securities unless
accompanied by a Prospectus Supplement.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
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The date of this Prospectus is , 1998
<PAGE> 3
NO PERSON IS AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS
PROSPECTUS OR THE PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION
OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. THIS
PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A
SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
DESCRIBED IN THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT OR AN OFFER TO SELL
OR A SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY JURISDICTION TO ANY
PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH
JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS OR THE PROSPECTUS
SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR THAT THE INFORMATION
CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS CORRECT AS OF ANY
TIME SUBSEQUENT TO THE DATE HEREOF OR THEREOF.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports, proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information can be inspected and copied at the public reference facilities of
the Commission at 450 Fifth Street N.W., Washington, D.C. 20549, Room 1024;
Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661;
and 7 World Trade Center, New York, New York 10048, Suite 1300. Copies of such
materials can also be obtained from the public reference section of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Commission maintains a web site that contains reports, proxy and
information statements and other information. The web site address is
http://www.sec.gov. Reports, proxy statements and other information concerning
the Company can also be inspected at the offices of the New York Stock Exchange,
Inc., 20 Broad Street, New York, New York 10005, and the Chicago Stock Exchange
Incorporated, 440 South LaSalle Street, Chicago, Illinois 60605.
No separate financial statements of any of the Allstate Trusts have been
included herein. The Company does not consider that such financial statements
would be material to holders of the Preferred Securities because (i) all of the
voting securities of each of the Allstate Trusts will be owned, directly or
indirectly, by the Company, a reporting company under the Exchange Act, (ii)
each of the Allstate Trusts has no independent operations but exists for the
sole purpose of issuing securities representing undivided beneficial interests
in the assets of such Allstate Trust and investing the proceeds thereof in
Subordinated Debt Securities issued by the Company and (iii) the Company's
obligations described herein and in any accompanying Prospectus Supplement under
the Declarations of each Trust, the guarantee issued with respect to Preferred
Securities issued by that Trust, the Subordinated Debt Securities purchased by
that Trust and the related Indenture, taken together, constitute a full and
unconditional guarantee of payments due on the Preferred Securities. See
"Description of Debt Securities" and "Description of Preferred Securities
Guarantees."
The Allstate Trusts are not currently subject to the information reporting
requirements of the Exchange Act. The Allstate Trusts will become subject to
such requirements upon the effectiveness of the Registration Statement, although
they intend to seek and expect to receive exemptions therefrom.
Additional information regarding the Company and the Securities is contained
in the Registration Statement on Form S-3 (together with all amendments and
exhibits relating thereto, the "Registration Statement"), filed with the
Commission under the Securities Act of 1933, as amended (the "Act"). For further
information pertaining to the Company and the Securities, reference is made to
the Registration Statement, and the exhibits thereto, which may be inspected
without charge at the office of the Commission at 450 Fifth Street N.W.,
Washington, D.C. 20549, and copies thereof may be obtained from the Commission
at prescribed rates. Any statements contained herein concerning the provisions
of any document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission or incorporated by reference herein are not
necessarily complete, and, in each instance, reference is made to the copy of
such document so filed for a more complete description of the matter involved.
Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's Annual Report on Form 10-K for the year ended December 31,
1997, the Company's Quarterly Reports on Form 10-Q for the quarterly periods
ended March 31, 1998 and June 30, 1998, the Company's Proxy Statement dated
March 27, 1998 and the Company's Current Reports on Form 8-K dated January 27,
1998, May 19, 1998 and May 20, 1998 are hereby incorporated in and made a part
of this Prospectus by reference.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Securities shall be deemed to be
incorporated by reference in this Prospectus or in any Prospectus Supplement and
to be part hereof from the date of filing such documents. Any statement
contained in a document, all or a portion of which is incorporated or deemed to
be incorporated by reference herein, or contained in this Prospectus or any
Prospectus Supplement, shall be deemed to be modified or superseded for purposes
of this Prospectus or any Prospectus Supplement to the extent that a statement
contained herein or in any subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of the Registration
Statement, this Prospectus or any Prospectus Supplement.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the request of any such person, a copy of any
or all of the documents which are incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference into such documents). Requests should be directed to The Allstate
Corporation, Attention: Investor Relations Department, 3075 Sanders Road,
Northbrook, Illinois 60062, telephone number (847) 402-5000.
2
<PAGE> 4
THE ALLSTATE CORPORATION
The Company is a holding company for Allstate Insurance Company ("AIC") and
certain other subsidiaries. The Company, through AIC and its other subsidiaries
(collectively, "Allstate"), is engaged in the property-liability insurance and
life insurance businesses. Allstate is the country's second largest personal
property and casualty insurer on the basis of 1997 statutory premiums earned and
is a major life insurer.
The Company was incorporated under Delaware law on November 5, 1992. The
Company's executive offices are located at 2775 Sanders Road, Northbrook,
Illinois 60062, and at Corporation Trust Center, 1209 Orange Street, Wilmington,
Delaware 19801. Its telephone number in Northbrook, Illinois is (847) 402-5000.
As a holding company with no significant business operations of its own,
the Company relies on dividends from AIC, which is domiciled in Illinois, as the
principal source of cash to meet its obligations, including the payment of
principal of (and premium, if any) and any interest on debt obligations of the
Company, and to pay dividends to holders of its capital stock. An
Illinois-domiciled insurer may not pay a dividend without notifying the state
insurance department and providing certain information. In addition, the payment
of dividends by Illinois-domiciled insurers is limited under the insurance
holding company laws, which require notice to and approval by the state
insurance commissioner for the declaration or payment of any dividend, which,
together with other dividends or distributions made within the preceding twelve
months, exceeds the greater of (i) 10% of the insurer's statutory surplus as of
December 31 of the preceding year or (ii) the insurer's net income for the
twelve-month period ending December 31 of the preceding year. The insurance
holding company laws of the other jurisdictions in which AIC's insurance
subsidiaries are domiciled generally contain similar (although in certain
instances somewhat more restrictive) limitations on the payment of dividends.
THE TRUSTS
Each of Allstate Financing III, Allstate Financing IV, Allstate Financing V
and Allstate Financing VI is a statutory business trust formed under Delaware
law pursuant to (i) a separate declaration of trust (each a "Declaration")
executed by the Company, as sponsor for such trust (the "Sponsor") and the
Allstate Trustees (as defined herein) for such trust and (ii) the filing of a
certificate of trust with the Delaware Secretary of State on August 21, 1996 (in
the case of Allstate Financing III and Allstate Financing IV) and on August 14,
1998 (in the case of Allstate Financing V and Allstate Financing VI). Each
Allstate Trust exists for the exclusive purposes of (i) issuing the Preferred
Securities and common securities representing undivided beneficial interests in
the assets of such Trust (the "Common Securities" and, together with the
Preferred Securities, the "Trust Securities"), (ii) investing the gross proceeds
of the Trust Securities in a specific series of Subordinated Debt Securities and
(iii) engaging in only those other activities necessary or incidental thereto.
All of the Common Securities will be directly or indirectly owned by the
Company. The Common Securities will rank pari passu, and payments will be made
thereon pro rata, with the Preferred Securities except that upon an event of
default under the Restated Declaration (as hereinafter defined), the rights of
the holders of the Common Securities to payment in respect of distributions and
payments upon liquidation, redemption and otherwise will be subordinated to the
rights of the holders of the Preferred Securities. Unless otherwise specified in
the applicable Prospectus Supplement, the Company will, directly or indirectly,
acquire Common Securities in an aggregate liquidation amount equal to at least
3% of the total capital of each Allstate Trust. Unless otherwise specified in
the applicable Prospectus Supplement, each Allstate Trust has a term of
approximately 55 years, but may earlier terminate as provided in the Restated
Declaration. Unless otherwise specified in the applicable Prospectus Supplement,
each Allstate Trust's business and affairs will be conducted by the trustees
(the "Allstate Trustees") appointed by the Company, as the direct or indirect
holder of all the Common Securities. The holder of the Common Securities will be
entitled to appoint, remove or replace any of, or increase or reduce the number
of, the Allstate Trustees of an Allstate Trust. The duties and obligations of
the Allstate Trustees shall be governed by the Restated Declaration of such
Allstate Trust. Unless otherwise specified in the applicable Prospectus
Supplement, a majority of the Allstate Trustees (the "Regular Trustees") of each
Allstate Trust will be persons who are employees or officers of or affiliated
with the
3
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Company. One Allstate Trustee of each Allstate Trust will be a financial
institution which will be unaffiliated with the Company and which shall act as
property trustee and as indenture trustee for purposes of compliance with the
Trust Indenture Act of 1939 (the "Trust Indenture Act"), pursuant to the terms
set forth in a Prospectus Supplement (the "Property Trustee"). In addition,
unless the Property Trustee maintains a principal place of business in the State
of Delaware, and otherwise meets the requirements of applicable law, one
Allstate Trustee of each Allstate Trust will have its principal place of
business or reside in the State of Delaware (the "Delaware Trustee"). The
Company will pay all fees and expenses related to the Allstate Trusts and the
offering of Trust Securities, the payment of which will be guaranteed by the
Company.
The office of the Delaware Trustee for each Allstate Trust in the State of
Delaware is 1 Rodney Square, 920 King Street, Suite 102, Wilmington, Delaware
19801. The principal place of business of each Allstate Trust is 2775 Sanders
Road, Northbrook, Illinois 60062. The telephone number of each Trust in
Northbrook, Illinois is (847) 402-5000.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The following table sets forth the ratio of earnings to fixed charges and
the ratio of earnings to fixed charges and preferred stock dividends for the
Company and its subsidiaries for the periods indicated:
<TABLE>
<CAPTION>
SIX MONTHS
ENDED
JUNE 30, YEAR ENDED DECEMBER 31,
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1998 1997 1997 1996 1995 1994 1993
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges(1)(2)...... 22.3x 19.9x 19.3x 16.5x 15.5x 2.5x 8.8x
Ratio of Earnings to Fixed Charges, including
interest credited to contractholder
funds(1)(3)................................. 4.5x 3.8x 4.0x 2.9x 2.8x 1.2x 2.1x
</TABLE>
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(1) The Company has authority to issue up to 25,000,000 shares of preferred
stock, par value $1.00 per share; however, there are currently no shares of
preferred stock outstanding and the Company does not have a preferred stock
dividend obligation. Therefore, the Ratio of Earnings to Fixed Charges and
Preferred Stock Dividends is equal to the Ratio of Earnings to Fixed Charges
and is not disclosed separately.
(2) For purposes of this computation, earnings consist of income from continuing
operations before income taxes plus fixed charges. Fixed charges consist of
interest expense, amortization of financing costs, that portion of rental
expense that is representative of the interest factor and dividends on
redeemable preferred securities.
(3) For purposes of this computation, earnings consist of income from continuing
operations before income taxes plus fixed charges. Fixed charges consist of
interest expense (including interest credited to contractholder funds),
amortization of financing costs, that portion of rental expense that is
representative of the interest factor and dividends on redeemable preferred
securities.
USE OF PROCEEDS
Except as may be otherwise set forth in the Prospectus Supplement
accompanying this Prospectus, the net proceeds to the Company from the sale or
sales of the Securities will be used for general corporate purposes. Each
Allstate Trust will invest all proceeds received from the sale of its Trust
Securities in a particular series of Subordinated Debt Securities.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued from time to time in one or more series.
The particular terms of each series, or of Debt Securities forming a part of a
series, which are offered by a Prospectus Supplement will be described in such
Prospectus Supplement.
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<PAGE> 6
The Senior Debt Securities will be issued under an Indenture, entered into
between the Company and State Street Bank and Trust Company, as trustee, dated
December 16, 1997, as may be supplemented by one or more supplemental indentures
(as so supplemented, the "Senior Indenture"). The Subordinated Debt Securities
will be issued under a separate Indenture, entered into between the Company and
State Street Bank and Trust Company, as trustee, dated November 25, 1996, as may
be supplemented by one or more supplemental indentures (as so supplemented, the
"Subordinated Indenture"). The Senior Indenture and the Subordinated Indenture
are sometimes referred to collectively as the "Indentures." The trustees under
the Senior Indenture and under the Subordinated Indenture are referred to herein
as the "Trustees."
The following summaries of certain material provisions of the Senior Debt
Securities, the Subordinated Debt Securities and the Indentures are subject to,
and qualified in their entirety by reference to, all the provisions of the
Indenture applicable to a particular series of Debt Securities, including the
definitions therein of certain terms. Wherever particular Sections, Articles or
defined terms of the Indentures are referred to herein or in a Prospectus
Supplement, it is intended that such Sections, Articles or defined terms shall
be incorporated by reference herein or therein, as the case may be. Unless
otherwise indicated, Section and Article references used herein are applicable
to each Indenture. Capitalized terms not otherwise defined herein shall have the
meanings given to them in the applicable Indenture.
GENERAL
The Indentures provide that Debt Securities in separate series may be
issued thereunder from time to time without limitation as to aggregate principal
amount. The Company may specify a maximum aggregate principal amount for the
Debt Securities of any series. (Section 301) The Debt Securities are to have
such terms and provisions which are not inconsistent with the Indentures,
including as to maturity, principal and interest, as the Company may determine.
Unless otherwise indicated in a Prospectus Supplement, the Senior Debt
Securities will be unsecured obligations of the Company and will rank on a
parity with all other unsecured and unsubordinated indebtedness of the Company.
The Subordinated Debt Securities will be unsecured obligations of the Company,
subordinated in right of payment to the prior payment in full of all Senior Debt
(as defined in the Subordinated Indenture) of the Company as described in the
applicable Prospectus Supplement. The Company's assets consist primarily of the
common stock of AIC and other subsidiaries, and the Company conducts no
substantial business or operations itself. Accordingly, the right of the
Company, and hence the right of the creditors of the Company (including the
Holders of the Debt Securities), to participate in any distribution of assets of
any subsidiary of the Company upon its liquidation or reorganization will be
subject to the prior claims of creditors of such subsidiary, except to the
extent that claims of the Company itself as a creditor of such subsidiary may be
recognized.
In the event Subordinated Debt Securities are issued to an Allstate Trust
or a trustee of such trust in connection with the issuance of Trust Securities
by such Allstate Trust, such Subordinated Debt Securities subsequently may be
distributed pro rata to the holders of such Trust Securities in connection with
the dissolution of such Allstate Trust upon the occurrence of certain events
described in the Prospectus Supplement relating to such Trust Securities. Only
one series of Subordinated Debt Securities will be issued to an Allstate Trust
or a trustee of such trust in connection with the issuance of Trust Securities
by such Allstate Trust.
The applicable Prospectus Supplement will set forth the price or prices at
which the Debt Securities to be offered will be issued and will describe the
following terms of such Debt Securities: (1) the title of such Debt Securities;
(2) any limit on the aggregate principal amount of such Debt Securities or the
series of which they are a part; (3) the Person to whom any interest on any of
such Debt Securities will be payable, if other than the Person in whose name
that Debt Security (or one or more Predecessor Debt Securities) is registered at
the close of business on the Regular Record Date for such interest; (4) the date
or dates on which the principal of any of such Debt Securities will be payable;
(5) the rate or rates at which any of such Debt Securities will bear interest,
if any, the date or dates from which any such interest will accrue, the Interest
Payment Dates on which any such interest will be payable and the Regular Record
Date for any such interest payable on any Interest Payment Date; (6) the place
or places where the principal of and any premium and
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interest on any of such Debt Securities will be payable; (7) the period or
periods within which, the price or prices at which and the terms and conditions
on which any of such Debt Securities may be redeemed, in whole or in part, at
the option of the Company; (8) the obligation, if any, of the Company to redeem
or purchase any of such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of the Holder thereof, and the period or
periods within which, the price or prices at which and the terms and conditions
on which any of such Debt Securities will be redeemed or purchased, in whole or
in part, pursuant to any such obligation; (9) the denominations in which any of
such Debt Securities will be issuable, if other than denominations of $1,000 and
any integral multiple thereof; (10) if the amount of principal of or any premium
or interest on any of such Debt Securities may be determined with reference to
an index or pursuant to a formula, the manner in which such amounts will be
determined; (11) if other than the currency of the United States, the currency,
currencies or currency units in which the principal of or any premium or
interest on any of such Debt Securities will be payable (and the manner in which
the equivalent of the principal amount thereof in the currency of the United
States is to be determined for any purpose, including for the purpose of
determining the principal amount deemed to be Outstanding at any time); (12) if
the principal of or any premium or interest on any of such Debt Securities is to
be payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than those in which such Debt Securities are
stated to be payable, the currency, currencies or currency units in which
payment of the principal of and any premium and interest on such Debt Securities
as to which such election is made will be payable, the periods within which and
the terms and conditions upon which such election is to be made and the amount
so payable (or any manner in which such amount is to be determined); (13) if
other than the entire principal amount thereof, the portion of the principal
amount of any of such Debt Securities which will be payable upon declaration of
acceleration of the Maturity thereof; (14) if the principal amount payable at
the Stated Maturity of any of such Debt Securities is not determinable upon
original issuance, the amount which will be deemed to be the principal amount of
such Debt Securities for any other purpose thereunder or under the Indentures
including the principal amount thereof which will be due and payable upon any
Maturity other than the Stated Maturity or which will be deemed to be
Outstanding as of any date (or, in any such case, any manner in which such
principal amount is to be determined); (15) if applicable, that such Debt
Securities, in whole or any specified part, are defeasible pursuant to the
provisions of the Indentures described under "Defeasance and Covenant Defeasance
- -- Defeasance and Discharge" or "Defeasance and Covenant Defeasance -- Covenant
Defeasance," or under both such captions; (16) whether any of such Debt
Securities will be issuable in whole or in part in the form of one or more
Global Securities and, if so, the respective Depositaries for such Global
Securities and any circumstances under which any such Global Security may be
exchanged in whole or in part for Debt Securities registered, and any transfer
of such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or its
nominee; (17) any addition to or change in the Events of Default applicable to
any of such Debt Securities and any change in the right of the Trustee or the
Holders to declare the principal amount of any of such Debt Securities due and
payable; (18) any addition to or change in the covenants described under
"Certain Covenants" applicable to any of such Debt Securities; and (19) any
other terms of such Debt Securities not inconsistent with the provisions of the
Indentures but which may modify or delete any provision of the Indentures
insofar as it applies to such series; provided that no term thereof shall be
modified or deleted if imposed under the Trust Indenture Act of 1939, as
amended, and that any modification or deletion of the rights, duties or
immunities of the Trustee shall have been consented to in writing by the
Trustee. (Section 301)
Debt Securities, including Original Issue Discount Securities, may be sold
at a substantial discount below their principal amount. Special United States
federal income tax considerations applicable to Debt Securities sold at an
original issue discount will be set forth in the applicable Prospectus
Supplement under "United States Taxation -- United States Holders." Special
United States tax and other considerations applicable to any Debt Securities
which are denominated in a currency or currency unit other than United States
dollars will be set forth in the applicable Prospectus Supplement under such
caption and under "Foreign Currency Risks."
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FORM, EXCHANGE AND TRANSFER
The Debt Securities of a series may be issued solely as Registered
Securities, solely as Bearer Securities (with or without coupons attached) or as
both Registered Securities and Bearer Securities. Debt Securities of a series
may be issuable in whole or in part in the form of one or more global Debt
Securities, as described below under "Global Securities."
Registered Securities of any series will be exchangeable for other
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. In addition, if Debt Securities of
any series are issuable as both Registered Securities and as Bearer Securities,
at the option of the holder, subject to the terms of the Indentures, Bearer
Securities (accompanied by all unmatured coupons, except as provided below, and
all matured coupons in default) of such series will be exchangeable for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor. Unless otherwise indicated in the
applicable Prospectus Supplement, any Bearer Security surrendered in exchange
for a Registered Security between a record date or a special record date for
defaulted interest and the relevant date for payment of interest will be
surrendered without the coupon relating to such date for payment of interest and
interest will not be payable in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the holder of
such coupon when due in accordance with the terms of the Indenture. Bearer
Securities will not be issued in exchange for Registered Securities. No service
charge will be made for any registration of transfer or exchange of Debt
Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith. Such transfer
or exchange will be effected upon the Security Registrar or such transfer agent,
as the case may be, being satisfied with the documents of title and identity of
the person making the request. The Company has appointed the Trustee as Security
Registrar. Any transfer agent (in addition to the Security Registrar) initially
designated by the Company for any Debt Securities will be named in the
applicable Prospectus Supplement. (Section 305) The Company may at any time
designate additional transfer agents or rescind the designation of any transfer
agent or approve a change in the office through which any transfer agent acts,
except that the Company will be required to maintain a transfer agent in each
Place of Payment for the Debt Securities of each series. (Section 1002)
In the event of any redemption by the Company, in whole or in part, of Debt
Securities of any series (or of any series and specified terms), the Company
will not be required to (i) issue, register the transfer of or exchange any Debt
Security of that series (or of that series and specified terms, as the case may
be) during a period beginning at the opening of business 15 Business Days before
the day of mailing of a notice of redemption of any such Debt Security selected
for redemption and ending at the close of business on the day of such mailing,
(ii) register the transfer of or exchange any Debt Security so selected for
redemption, in whole or in part, except the unredeemed portion of any such Debt
Security being redeemed in part or (iii) exchange any Bearer Security called for
redemption, except to exchange such Bearer Security for a Registered Security of
that series and of like tenor and principal amount that is immediately
surrendered for redemption. (Section 305)
GLOBAL SECURITIES
Some or all of the Debt Securities of any series may be represented, in
whole or in part, by one or more Global Securities which will have an aggregate
principal amount equal to that of the Debt Securities represented thereby. Each
Global Security will be registered in the name of the Depository Trust Company
("DTC") as Depositary, or any other Depositary identified in the applicable
Prospectus Supplement, or a nominee thereof, will be deposited with DTC or such
other Depositary or a custodian therefor and will bear a legend regarding the
restrictions on exchanges and registration of transfer thereof referred to below
and any such other matters as may be provided for pursuant to the Indentures.
The Depositary shall at all times be a clearing agency registered under the
Exchange Act. (Section 101)
DTC has advised the Company as follows: DTC is a limited-purpose trust
company organized under the Banking Law of the State of New York, a member of
the Federal Reserve System, a "clearing corporation" within the meaning of the
New York Uniform Commercial Code, and a "clearing agency" registered pursuant
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to the provisions of Section 17A of the Exchange Act. DTC was created to hold
securities of its participants (defined below) and to facilitate the clearance
and settlement transactions among its participants in such securities through
electronic book-entry changes in accounts of the participants, thereby
eliminating the need for physical movement of securities certificates. DTC's
participants include securities brokers and dealers (including firms that might
be underwriters with respect to the Securities), banks, trust companies,
clearing corporations, and certain other organizations, some of whom (and/or
their representatives) own DTC. Access to DTC's book-entry system is also
available to others, such as banks, brokers, dealers and trust companies that
clear through or maintain a custodial relationship with a participant, either
directly or indirectly.
Notwithstanding any provision of the Indentures or any Debt Security
described herein, no Global Security may be exchanged in whole or in part for
Debt Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for
such Global Security or any nominee of such Depositary unless (i) the Depositary
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or has ceased to be qualified to act as such
as required by the Indentures, (ii) there shall have occurred and be continuing
an Event of Default with respect to the Debt Securities represented by such
Global Security or (iii) there shall exist such circumstances, if any, as may be
described in the applicable Prospectus Supplement. All Debt Securities issued in
exchange for a Global Security or any portion thereof will be registered in such
names as the Depositary may direct. (Section 305) The laws of some jurisdictions
require that certain purchasers of Debt Securities take physical delivery of
such Debt Securities in definitive form. Such laws may impair the ability to
transfer beneficial interests in a Global Security.
As long as the Depositary, or its nominee, is the registered Holder of a
Global Security, the Depositary or such nominee, as the case may be, will be
considered the sole owner and Holder of such Global Security and the Debt
Securities represented thereby for all purposes under the Debt Securities and
the Indentures. Except in the limited circumstances referred to above, owners of
beneficial interests in a Global Security will not be entitled to have such
Global Security or any Debt Securities represented thereby registered in their
names, will not receive or be entitled to receive physical delivery of
certificated Debt Securities in exchange therefor and will not be considered to
be the owners or Holders of such Global Security or any Debt Securities
represented thereby for any purpose under the Debt Securities or the Indentures.
All payments of principal of and any premium and interest on a Global Security
will be made to the Depositary or its nominee, as the case may be, as the Holder
thereof.
Ownership of beneficial interests in a Global Security will be limited to
participants or to persons that may hold beneficial interests through
institutions that have accounts with the Depositary or its nominee
("participants"). Ownership of beneficial interests in a Global Security will be
shown only on, and the transfer of those ownership interests will be effected
only through, records maintained by the Depositary (with respect to
participants' interests) or any such participant (with respect to interests of
persons held by such participants on their behalf). Payments, transfers,
exchanges and other matters relating to beneficial interests in a Global
Security may be subject to various policies and procedures adopted by the
Depositary from time to time. None of the Company, the Trustee or any agent of
the Company or the Trustee will have any responsibility or liability for any
aspect of the Depositary or any participant's records relating to, or for
payments made on account of, beneficial interests in a Global Security, or for
maintaining, supervising or reviewing any of the Depositary's records or any
participant's records relating to such beneficial ownership interests.
Secondary trading in notes and debentures of corporate issuers is generally
settled in clearing-house or next-day funds. In contrast, beneficial interests
in a Global Security, in some cases, may trade in the Depositary's same-day
funds settlement system, in which secondary market trading activity in those
beneficial interests would be required by the Depositary to settle in
immediately available funds. There is no assurance as to the effect, if any,
that settlement in immediately available funds would have on trading activity in
such beneficial interests. Also, settlement for purchases of beneficial
interests in a Global Security upon the original issuance thereof may be
required to be made in immediately available funds.
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PAYMENT AND PAYING AGENTS
Unless otherwise indicated in the applicable Prospectus Supplement, payment
of interest on a Security on any Interest Payment Date will be made to the
Person in whose name such Debt Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such
interest. (Section 307)
Unless otherwise indicated in the applicable Prospectus Supplement,
principal of and any premium and interest on the Debt Securities of a particular
series will be payable at the office of such Paying Agent or Paying Agents as
the Company may designate for such purpose from time to time, except that at the
option of the Company payment of any interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Security
Register. Unless otherwise indicated in the applicable Prospectus Supplement, a
Paying Agent designated by the Company and located in the Borough of Manhattan,
The City of New York will act as Paying Agent for payments with respect to Debt
Securities of each series. All Paying Agents initially designated by the Company
for the Debt Securities of a particular series will be named in the applicable
Prospectus Supplement. The Company may at any time designate additional Paying
Agents or rescind the designation of any Paying Agent or approve a change in the
office through which any Paying Agent acts, except that the Company will be
required to maintain a Paying Agent in each Place of Payment for the Debt
Securities of a particular series. (Section 1002)
All moneys paid by the Company to a Paying Agent for the payment of the
principal of or any premium or interest on any Debt Security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to the Company upon request, and the
Holder of such Debt Security thereafter may look only to the Company for payment
thereof. (Section 1003)
SUBORDINATION OF SUBORDINATED DEBT SECURITIES
Unless otherwise indicated in the Prospectus Supplement, the following
provisions will apply to the Subordinated Debt Securities.
The Subordinated Debt Securities will, to the extent set forth in the
Subordinated Indenture, be subordinate in right of payment to the prior payment
in full of all Senior Indebtedness. (Section 1401 of the Subordinated Indenture)
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding in
connection therewith, relative to the Company or to its creditors, as such, or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshaling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash, before
the Holders of Subordinated Debt Securities are entitled to receive any payment
on account of principal of or any premium or interest on Subordinated Debt
Securities, and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, including any
such payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company being subordinated to the
payment of Subordinated Debt Securities, which may be payable or deliverable in
respect of the Subordinated Debt Securities in any such case, proceeding,
dissolution, liquidation or other winding up event. (Section 1403 of the
Subordinated Indenture)
By reason of such subordination, in the event of liquidation or insolvency,
creditors of the Company may recover less, ratably, than Holders of Senior Debt
Securities and may recover more, ratably, than the Holders of the Subordinated
Debt Securities.
In the event of the acceleration of the maturity of any Subordinated Debt
Securities, the Holders of all Senior Debt Securities outstanding at the time of
such acceleration will first be entitled to receive payment in full of all
amounts due thereon before the Holders of the Subordinated Debt Securities will
be entitled to
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receive any payment upon the principal of or any premium or interest on the
Subordinated Debt Securities. (Section 1404 of the Subordinated Indenture)
No payment of principal (including redemption and sinking fund payments) of
or any premium or interest on the Subordinated Debt Securities may be made (i)
if any Senior Indebtedness of the Company is not paid when due and any
applicable grace period with respect to such default has ended and such default
has not been cured or waived or ceased to exist, or (ii) if the maturity of any
Senior Indebtedness of the Company has been accelerated because of a default.
(Section 1402 of the Subordinated Indenture)
The Subordinated Indenture does not limit or prohibit the incurrence of
additional Senior Debt Securities, which may include indebtedness that is senior
to the Subordinated Debt Securities, but subordinate to other obligations of the
Company. The Senior Debt Securities constitute Senior Debt Securities under the
Subordinated Indenture.
The term "Senior Indebtedness" means, with respect to the Company, (i) the
principal or any premium and interest in respect of (A) indebtedness of such
obligor for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments issued by such obligor, (ii) all
capital lease obligations of such obligor, (iii) all obligations of such obligor
issued or assumed as the deferred purchase price of property, all conditional
sale obligations of such obligor and all obligations of such obligor under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business), (iv) all obligations of such obligor for the
reimbursement on any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction, (v) all obligations of the types
referred to in clauses (i) through (iv) above of other persons for the payment
of which the Company is responsible or liable as obligor, guarantor or otherwise
and (vi) all obligations of the types referred to its clauses (i) through (v)
above of other persons secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by the Company), except for
(1) any such indebtedness that is by its terms subordinated to or pari passu
with the Subordinated Debt Securities and (2) any indebtedness between or among
the Company or its affiliates, including all other debt securities and
guarantees in respect of those debt securities, issued to (a) any other Allstate
Trust or a trustee of such trust and (b) any other trust, or a trustee of such
trust, partnership or other entity affiliated with the Company that is a
financing vehicle of the Company (a "financing entity") in connection with the
issuance by such financing entity of preferred securities unless otherwise
expressly provided in the terms of such debt securities. Such Senior
Indebtedness shall continue to be Senior Indebtedness and be entitled to the
benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any term of such Senior Indebtedness. (Sections 101
and 1408 of the Subordinated Indenture)
The Prospectus Supplement may further describe the provisions, if any,
applicable to the subordination of the Subordinated Debt Securities of a
particular series.
CERTAIN COVENANTS WITH RESPECT TO SENIOR DEBT SECURITIES
LIMITATION ON LIENS OF STOCK OF AIC
The Senior Indenture prohibits the Company and its Subsidiaries from
directly or indirectly creating, assuming, incurring or permitting to exist any
indebtedness secured by any lien on the capital stock of AIC unless the Senior
Debt Securities (and, if the Company so elects, any other Indebtedness of the
Company that is not subordinate to the Senior Debt Securities and with respect
to which the governing instruments require, or pursuant to which the Company is
otherwise obligated, to provide such security) shall be secured equally and
ratably with such Indebtedness for at least the time period such other
Indebtedness is so secured. (Section 1008)
"Indebtedness" is defined in the Senior Indenture as the principal of and
any premium and interest due on indebtedness of a Person, whether outstanding on
the date of such Indenture or thereafter created, incurred or assumed, which is
(a) indebtedness for money borrowed, and (b) any amendments, renewals,
extensions, modifications and refundings of any such indebtedness. For the
purposes of this definition, "indebtedness for money borrowed" means (i) any
obligation of, or any obligation guaranteed by, such Person for the repayment
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of borrowed money, whether or not evidenced by bonds, debentures, notes or other
written instruments, (ii) any obligation of, or any such obligation guaranteed
by, such Person evidenced by bonds, debentures, notes or similar written
instruments, including obligations assumed or incurred in connection with the
acquisition of property, assets or businesses (provided, however, that the
deferred purchase price of any other business or property or assets shall not be
considered Indebtedness if the purchase price thereof is payable in full within
90 days from the date on which such indebtedness was created), and (iii) any
obligations of such Person as lessee under leases required to be capitalized on
the balance sheet of the lessee under generally accepted accounting principles
and leases of property or assets made as part of any sale and lease-back
transaction to which such Person is a party. For purposes of this covenant only,
Indebtedness also includes any obligation of, or any obligation guaranteed by,
any Person for the payment of amounts due under a swap agreement or similar
instrument or agreement, or under a foreign currency hedge exchange or similar
instrument or agreement. (Sections 101 and 1008 of the Senior Indenture)
LIMITATIONS ON DISPOSITION OF STOCK OF AIC
The Senior Indenture also provides that so long as any Senior Debt
Securities are outstanding and except in a transaction otherwise governed by
such Indenture, the Company may not issue, sell, transfer or otherwise dispose
of any shares of, securities convertible into, or warrants, rights or options to
subscribe for or purchase shares of, capital stock (other than preferred stock
having no voting rights of any kind) of AIC, and will not permit AIC to issue
(other than to the Company) any shares (other than director's qualifying shares)
of, or securities convertible into, or warrants, rights or options to subscribe
for or purchase shares of, capital stock (other than preferred stock having no
voting rights of any kind) of AIC, if, after giving effect to any such
transaction and the issuances of the maximum number of shares issuable upon the
conversion or exercise of all such convertible securities, warrants, rights or
options, the Company would own, directly or indirectly, less than 80% of the
shares of AIC (other than preferred stock having no voting rights of any kind);
provided, however, that (i) any issuance, sale, transfer or other disposition
permitted by the Company may only be made for at least a fair market value
consideration as determined by the Board of Directors pursuant to a Board
Resolution adopted in good faith and (ii) the foregoing shall not prohibit any
such issuance or disposition of securities if required by any law or any
regulation or order of any governmental or insurance regulatory authority.
Notwithstanding the foregoing, (i) the Company may merge or consolidate AIC into
or with another direct wholly-owned Subsidiary of the Company and (ii) the
Company may, subject to the provisions set forth in "Consolidation, Merger and
Sale of Assets" below, sell, transfer or otherwise dispose of the entire capital
stock of AIC at one time for at least a fair market value consideration as
determined by the Board of Directors pursuant to a Board Resolution adopted in
good faith. (Section 1009 of the Senior Indenture)
CERTAIN COVENANTS WITH RESPECT TO SUBORDINATED DEBT SECURITIES
If Subordinated Debt Securities are issued to an Allstate Trust or a
trustee of such trust in connection with the issuance of Trust Securities by
such Allstate Trust and (i) there shall have occurred any event that would
constitute an Event of Default, (ii) the Company shall be in default with
respect to its payment of any obligations under the related Preferred Securities
Guarantee or Common Securities Guarantee, or (iii) the Company shall have given
notice of its election to defer payments of interest on such Subordinated Debt
Securities by extending the interest payment period as provided in the
Subordinated Indenture and such period, or any extension thereof, shall be
continuing, then (a) the Company shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock (other than (i) purchases or
acquisitions of shares of Common Stock in connection with the satisfaction by
the Company of its obligations under any employee benefit plans, (ii) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one class or series of the Company's capital stock for another
class or series of the Company's capital stock or (iii) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock of the Company or the
security being converted or exchanged) or make any guarantee payments with
respect to the foregoing, and (b) the Company shall not make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including
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guarantees) issued by the Company which rank pari passu with or junior to such
Subordinated Debt Securities. (Section 1008 of the Subordinated Indenture)
In the event Subordinated Debt Securities are issued to an Allstate Trust
or a trustee of such trust in connection with the issuance of Trust Securities
of such Allstate Trust, for so long as such Securities remain outstanding, the
Company will covenant (i) to directly or indirectly maintain 100% ownership of
the Common Securities of such Allstate Trust; provided, however, that any
permitted successor of the Company under the Indenture may succeed to the
Company's ownership of such Trust Common Securities, (ii) to use its reasonable
efforts to cause such Allstate Trust (a) to remain a statutory business trust,
except in connection with the distribution of Subordinated Debt Securities to
the holders of Trust Securities in liquidation of such Allstate Trust, the
redemption of all of the Trust Securities of such Allstate Trust, or certain
mergers, consolidations or amalgamations, each as permitted by the Declaration
of such Allstate Trust, and (b) to continue to be classified as a grantor trust
for United States federal income tax purposes and (iii) to use its reasonable
efforts to cause each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Subordinated Debt Securities. (Section 1009
of the Subordinated Indenture)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Debt Securities under the Indentures, may consolidate with or merge into, or
convey, transfer or lease its properties and assets substantially as an entirety
to, any Person or may permit any Person to consolidate with or merge into the
Company, provided that any successor Person must be a corporation, partnership,
or trust organized and validly existing under the laws of any domestic
jurisdiction and must assume the Company's obligations on the Debt Securities
and under the Indentures, that after giving effect to the transaction no Event
of Default, and no event which, after notice or lapse of time or both, would
become an Event of Default shall have happened and be continuing and that
certain other conditions are met; provided such provisions will not be
applicable to the direct or indirect transfer of the stock, assets or
liabilities of any Subsidiary of the Company to another direct or indirect
Subsidiary of the Company. (Section 801)
OUTSTANDING DEBT SECURITIES
"Outstanding," when used with respect to Debt Securities, means, as of the
date of determination, all Debt Securities theretofore authenticated and
delivered under the Indentures, except:
(1) Debt Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Debt Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Debt Securities; provided that, if such Debt
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to the Indentures or provision therefor satisfactory to the
Trustee has been made;
(3) Debt Securities as to which Defeasance has been effected pursuant
to Section 1302 of the Indentures; and
(4) Debt Securities which have been paid pursuant to the Indentures or
in exchange for or in lieu of which other Debt Securities have been
authenticated and delivered pursuant to the Indentures, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a
bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities have given, made or taken any request, demand,
authorization, direction, notice, consent, waiver or other action under the
Indentures (a) the principal amount of an Original Issue Discount Security that
shall be deemed to be Outstanding shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon
acceleration of the Maturity thereof to such date pursuant to the Indentures,
(b) the principal amount of a Debt Security denominated in one or more foreign
currencies or currency units which
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shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of the date of original issuance of such Debt Security in the
manner provided as contemplated by the Indentures, of the principal amount of
such Debt Security (or, in the case of an Original Issue Discount Security, of
the amount determined as provided in clause (a) above), (c) if the principal
amount payable at the Stated Maturity of any Debt Security is not determinable
upon original issuance, the principal amount of such Debt Security that shall be
deemed to be Outstanding shall be the amount as specified or determined as
contemplated by the Indentures, and (d) Debt Securities beneficially owned by
the Company or any other obligor upon the Debt Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debt Securities which a Responsible Officer of the
Trustee knows to be so owned shall be so disregarded. Debt Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
Pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to such Debt Securities and that the pledgee is not the Company
or any other obligor upon the Debt Securities or any Affiliate of the Company or
of such other obligor. (Section 101)
Except as provided above or as may otherwise be provided in the
accompanying Prospectus Supplement, there are no "event risk" or similar
provisions of the Indentures or the Debt Securities that are intended to afford
protection to Holders in the event of a merger or other significant corporate
event involving the Company.
EVENTS OF DEFAULT
Each of the following will constitute an Event of Default under the
applicable Indenture with respect to Debt Securities of any series: (a) failure
to pay principal of or any premium on any Debt Security of that series when due;
(b) failure to pay any interest on any Debt Securities of that series when due,
continued for 30 days; (c) failure to deposit any sinking fund payment, when
due, in respect of any Debt Security of that series; (d) failure to perform any
other covenant of the Company in the applicable Indenture (other than a covenant
included in the applicable Indenture solely for the benefit of a series other
than that series), continued for 60 days after written notice has been given by
the Trustee, or the Holders of at least 25% in principal amount of the
Outstanding Debt Securities of that series, as provided in the applicable
Indenture; (e) in the event Subordinated Debt Securities are issued to an
Allstate Trust or a trustee of such trust in connection with the issuance of
Trust Securities by such Allstate Trust, the voluntary or involuntary
dissolution, winding-up or termination of such Allstate Trust, except in
connection with the distribution of Subordinated Debt Securities to the holders
of Trust Securities in liquidation of such Allstate Trust, the redemption of all
of the Trust Securities of such Allstate Trust, or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration of such
Allstate Trust; and (f) certain events in bankruptcy, insolvency or
reorganization. (Section 501)
If an Event of Default with respect to the Debt Securities of any series at
the time Outstanding shall occur and be continuing, either the Trustee or the
Holders of at least 25% in aggregate principal amount of the Outstanding Debt
Securities of that series by notice as provided in the applicable Indenture may
declare the principal amount of the Debt Securities of that series (or, in the
case of any Debt Security that is an Original Issue Discount Security or the
principal amount of which is not determinable on original issuance thereof, such
portion of the principal amount of such Debt Security, or such other amount in
lieu of such principal amount, as may be specified in the terms of such Debt
Security) to be due and payable immediately; provided, however, that after such
acceleration, but before a judgment or decree based on acceleration, the Holders
of a majority in aggregate principal amount of the Outstanding Debt Securities
of that series may, under certain circumstances, rescind and annul such
acceleration if all Events of Default, other than the nonpayment of accelerated
principal, have been cured or waived as provided in the applicable Indenture.
(Section 502) For information as to waiver of defaults, see "Modification and
Waiver."
Subject to the provisions of the Indentures relating to the duties of the
Trustee in case an Event of Default shall occur and be continuing, the Trustee
will be under no obligation to exercise any of its rights or powers under the
applicable Indenture at the request or direction of any of the Holders, unless
such Holders
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shall have offered to the Trustee reasonable indemnity. (Section 603) Subject to
such provisions for the indemnification of the Trustee, the Holders of a
majority in aggregate principal amount of the Outstanding Debt Securities of any
series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Debt Securities of that
series. (Section 512)
No Holder of a Debt Security of any series will have any right to institute
any proceeding with respect to the applicable Indenture, or for the appointment
of a receiver or a trustee, or for any remedy thereunder, unless (i) such Holder
has previously given written notice to the Trustee of a continuing Event of
Default with respect to the Debt Securities of that series, (ii) the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of that
series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee under the
applicable Indenture, (iii) such Holder or Holders have offered to the Trustee
reasonable indemnity against costs, expenses and liabilities to be incurred in
compliance with such request, (iv) the Trustee for 60 days after receipt of such
notice, request and offer of indemnity has failed to institute such proceeding
and (v) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of the Outstanding Debt Securities of that series. (Section 507) However,
such limitations do not apply to a suit instituted by a Holder of a Debt
Security for the enforcement of payment of the principal of and any premium and
interest on such Debt Security on or after the applicable due dates expressed in
such Debt Security. (Section 508)
The Company will be required to furnish to each Trustee annually a
statement by certain of its officers as to whether or not the Company, to their
knowledge, is in default in the performance or observance of any of the terms,
provisions and conditions of the applicable Indenture and, if so, specifying all
such known defaults. (Section 1004)
MODIFICATION AND WAIVER
Modifications and amendments of the Indentures may be made by the Company
and the Trustee under the applicable Indenture with the consent of the Holders
of not less than a majority in principal amount of the Outstanding Debt
Securities of each series affected by such modification or amendment; provided,
however, that no such modification or amendment may, without the consent of the
Holder of each Outstanding Debt Security affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of principal of or interest on,
any Debt Security (except to the extent provided in a Prospectus Supplement),
(b) reduce the principal amount of or any premium or interest on any Debt
Security, (c) reduce the amount of principal of an Original Issue Discount
Security or any other Debt Security payable upon acceleration of the Maturity
thereof, (d) change the currency of payment of principal of or any premium or
interest on any Debt Security, (e) impair the right to institute suit for the
enforcement of any payment on or with respect to any Debt Security, (f) reduce
the percentage in principal amount of Outstanding Debt Securities of any series,
the consent of whose Holders is required for modification or amendment of the
Indentures, (g) reduce the percentage in principal amount of Outstanding Debt
Securities of any series necessary for waiver of compliance with certain
provisions of the Indentures or for waiver of certain defaults or (h) modify
such provisions with respect to modification and waivers. (Section 902)
The Holders of a majority in principal amount of the Outstanding Debt
Securities of any series may waive compliance by the Company with certain
restrictive provisions of the applicable Indenture. (Section 1010) The Holders
of a majority in principal amount of the Outstanding Debt Securities of any
series may waive any past default under the applicable Indenture, except a
default in the payment of principal, premium or interest and certain covenants
and provisions of the applicable Indenture which cannot be amended without the
consent of the Holder of each Outstanding Debt Security of such series affected.
(Section 513)
Except in certain limited circumstances, the Company will be entitled to
set any day as a record date for the purpose of determining the Holders of
Outstanding Debt Securities of any series entitled to give, make or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or
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permitted by the applicable Indenture to be given, made or taken by Holders of
Debt Securities of such series, in the manner and subject to the limitations
provided in the applicable Indenture. To be effective, any such action for which
the Company has set a record date must be taken by Holders of the requisite
principal amount of Debt Securities of the relevant series Outstanding on such
record date within 180 days after the record date, or within such shorter period
as the Company may specify from time to time. (Section 104)
DEFEASANCE AND COVENANT DEFEASANCE
If and to the extent indicated in the applicable Prospectus Supplement, the
Company may elect at its option at any time to have the provisions of Section
1302, relating to defeasance and discharge of indebtedness, or Section 1303,
relating to defeasance of certain covenants in the Indentures, applied to the
Debt Securities of any series, or to any specified part of a series. (Section
1301)
Defeasance and Discharge. The Indentures provide that, upon the Company's
exercise of its option (if any) to have Section 1302 applied to any Debt
Securities, the Company will be discharged from all its obligations with respect
to such Debt Securities (except for certain obligations to exchange or register
the transfer of Debt Securities, to replace stolen, lost or mutilated Debt
Securities, to maintain paying agencies and to hold moneys for payment in trust)
upon the deposit in trust for the benefit of the Holders of such Debt Securities
of money or U.S. Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such Debt Securities on the respective Stated Maturities in
accordance with the terms of the applicable Indenture and such Debt Securities.
Such defeasance or discharge may occur only if, among other things, the Company
has delivered to the Trustee an Opinion of Counsel stating that the Company has
received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case
to the effect that Holders of such Debt Securities will not recognize gain or
loss for federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to federal income tax on the same amount, in the
same manner and at the same times as would have been the case if such deposit,
defeasance and discharge were not to occur. (Sections 1302 and 1304)
Defeasance of Certain Covenants. The Indentures provide that, upon the
Company's exercise of its option (if any) to have Section 1303 applied to any
Debt Securities, the Company may omit to comply with certain covenants as
described in the applicable Prospectus Supplement, and the occurrence of certain
Events of Default, which are described herein under clause (d) (with respect to
such covenants) under "Events of Default" as described in the applicable
Prospectus Supplement, will be deemed not to be or result in an Event of
Default, in each case with respect to such Debt Securities. The Company, in
order to exercise such option, will be required to deposit, in trust for the
benefit of the Holders of such Debt Securities, money or U.S. Government
Obligations, or both, which, through the payment of principal and interest in
respect thereof in accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities on the respective Stated Maturities in accordance with the terms of
the applicable Indenture and such Debt Securities. The Company will also be
required, among other things, to deliver to the Trustee an Opinion of Counsel to
the effect that Holders of such Debt Securities will not recognize gain or loss
for federal income tax purposes as a result of such deposit and defeasance of
certain obligations and will be subject to federal income tax on the same
amount, in the same manner and at the same times as would have been the case if
such deposit and defeasance were not to occur. In the event the Company
exercised this option with respect to any Debt Securities and such Debt
Securities are declared due and payable because of the occurrence of any Event
of Default, the amount of money and U.S. Government Obligations so deposited in
trust will be sufficient to pay amounts due on such Debt Securities at the time
of their Stated Maturities but may not be sufficient to pay amounts due on such
Debt Securities upon any acceleration resulting from such Event of Default. In
such case, the Company will remain liable for such payments. (Sections 1303 and
1304)
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NOTICES
Notices to Holders of Debt Securities will be given by mail to the
addresses of such Holders as they may appear in the Security Register. (Sections
101 and 106)
TITLE
The Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name a Debt Security is registered as the absolute
owner thereof (whether or not such Debt Security may be overdue) for the purpose
of making payment and for all other purposes. (Section 308)
GOVERNING LAW
The Indentures and the Debt Securities will be governed by, and construed
in accordance with, the internal laws of the State of New York. (Section 112)
REGARDING THE TRUSTEE
State Street Bank and Trust Company, which is the Trustee under the
Indentures described herein, performs other services for the Company and its
affiliates.
DESCRIPTION OF DEBT WARRANTS
The Company may issue, together with other Securities or separately, Debt
Warrants for the purchase of Debt Securities. The Debt Warrants are to be issued
under Debt Warrant Agreements (each a "Debt Warrant Agreement") to be entered
into between the Company and a bank or trust company, as Debt Warrant Agent (the
"Debt Warrant Agent"), all as set forth in the Prospectus Supplement relating to
Debt Warrants in respect of which this Prospectus is being delivered. A copy of
the form of Debt Warrant Agreement, including the form of Warrant Certificates
representing the Debt Warrants (the "Debt Warrant Certificates"), reflecting the
alternative provisions to be included in the Debt Warrant Agreements that will
be entered into with respect to particular offerings of Debt Warrants, is filed
as an exhibit to the Registration Statement. The following summaries of certain
provisions of the Debt Warrant Agreement and the Debt Warrant Certificates do
not purport to be complete and are subject to, and are qualified in their
entirety by reference to, all the provisions of the Debt Warrant Agreement and
the Debt Warrant Certificates, respectively, including the definitions therein
of capitalized terms.
GENERAL
Reference is made to the Prospectus Supplement for the terms of Debt
Warrants in respect of which this Prospectus is being delivered, the Debt
Warrant Agreement relating to such Debt Warrants and the Debt Warrant
Certificates representing such Debt Warrants, including the following: (1) the
designation, aggregate principal amount and terms of the Debt Securities
purchasable upon exercise of such Debt Warrants and the procedures and
conditions relating to the exercise of such Debt Warrants; (2) the designation
and terms of any related Debt Securities with which such Debt Warrants are
issued and the number of such Debt Warrants issued with each such Debt Security;
(3) the date, if any, on and after which such Debt Warrants and the related Debt
Securities will be separately transferable; (4) the principal amount of Debt
Securities purchasable upon exercise of each Debt Warrant and the price at which
such principal amount of Debt Securities may be purchased upon such exercise;
(5) the Date on which the right to exercise such Debt Warrants shall commence
and the date on which such right shall expire (the "Expiration Date"); (6) if
the Debt Securities purchasable upon exercise of such Debt Warrants are original
issue discount Debt Securities, a discussion of federal income tax
considerations applicable thereto; and (7) whether the Debt Warrants represented
by the Debt Warrant Certificate will be issued in registered or bearer form,
and, if registered, where they may be transferred and registered.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations and Debt Warrants may be exercised at
the corporate trust office of the Debt Warrant Agent or
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any other office indicated in the Prospectus Supplement. Prior to the exercise
of their Debt Warrants, holders of Debt Warrants will not have any of the rights
of holders of the Debt Securities purchasable upon such exercise and will not be
entitled to payments of principal of (and premium, if any) or interest, if any,
on the Debt Securities purchasable upon such exercise.
EXERCISE OF DEBT WARRANTS
Each Debt Warrant will entitle the holder to purchase for cash such
principal amount of Debt Securities at such exercise price as shall in each case
be set forth in, or be determinable as set forth in, the Prospectus Supplement
relating to the Debt Warrants offered thereby. Debt Warrants may be exercised at
any time up to the close of business on the Expiration Date set forth in the
applicable Prospectus Supplement. After the close of business of the Expiration
Date, unexercised Debt Warrants will become void.
Debt Warrants may be exercised as set forth in the Prospectus Supplement
relating to the Debt Warrants in respect of which this Prospectus is being
delivered. Upon receipt of payment and the Debt Warrant Certificate properly
completed and duly executed at the corporate trust office of the Debt Warrant
Agent or any other office indicated in the Prospectus Supplement, the Company
will, as soon as practicable, forward the Debt Securities purchasable upon such
exercise. If less than all of the Debt Warrants represented by such Debt Warrant
Certificate are exercised, a new Debt Warrant Certificate will be issued for the
remaining amount of Debt Warrants.
DESCRIPTION OF PREFERRED STOCK
The Company is authorized to issue up to 25,000,000 shares of preferred
stock, par value $1.00 per share, none of which is currently issued and
outstanding. The Board of Directors of the Company is authorized to provide for
the issuance of the preferred stock in series, to establish or change the number
of shares to be included in each such series and to fix the designation,
relative rights, preferences and limitations of each such series, subject to
such limitations as may be prescribed by law. In particular, the Board of
Directors of the Company is authorized, without limitation, to determine with
respect to each series of preferred stock the number of shares, the designation
of the series, the dividend rate, voting rights, conversion rights, redemption
provisions, liquidation rights and sinking fund provisions, all without further
action by the Company's stockholders.
The Preferred Stock will be fully paid and nonassessable. Unless otherwise
indicated in a Prospectus Supplement, the Preferred Stock will have preference
over the Company's common stock with respect to the payment of dividends and the
distribution of assets in the event of a liquidation, winding up or dissolution
of the Company. Unless otherwise indicated in a Prospectus Supplement, each
series of Preferred Stock will rank on a parity with each other series.
The following summaries of certain provisions of the Preferred Stock do not
purport to be complete and are subject, and are qualified in their entirety by
reference, with respect to any particular series of Preferred Stock, to the
description of the terms thereof included in the applicable Prospectus
Supplement and to the applicable provisions of the Company's Certificate of
Incorporation and Bylaws.
DIVIDENDS
Holders of shares of the Preferred Stock of each series shall be entitled
to receive, when, as and if declared by the Board of Directors of the Company,
out of assets of the Company legally available for payment, cash or other
dividends at such rates and on such dates as will be set forth in the applicable
Prospectus Supplement. Each such dividend shall be payable to holders of record
as they appear on the stock books of the Company on such record dates as shall
be fixed by the Board of Directors of the Company.
Dividends on any series of the Preferred Stock may be cumulative or
noncumulative, as provided in the applicable Prospectus Supplement. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of the Preferred Stock for which dividends are
noncumulative, then the holders of such series of the Preferred Stock will have
no right to receive a dividend
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in respect of the dividend period ending on such dividend payment date, and the
Company will have no obligation to pay the dividend accrued for such period,
whether or not dividends on such series are declared payable on any future
dividend payment date.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of Preferred Stock will be entitled to
receive out of assets of the Company available for distribution to stockholders,
before any distribution of assets is made to holders of common stock,
liquidating distributions in the amount of the liquidation price per share (as
set forth in the applicable Prospectus Supplement) plus all accrued and unpaid
dividends. If, upon any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the amounts payable with respect to the Preferred
Stock and any other shares of stock of the Company ranking as to any such
distribution on a parity with the Preferred Stock are not paid in full, the
holders of the Preferred Stock and of such other shares will share ratably in
any such distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment of the
full amount of the liquidating distribution to which they are entitled, the
holders of Preferred Stock will not be entitled to any further participation in
any distribution of assets by the Company. A consolidation or merger of the
Company with or into any other corporation or corporations or a sale of all or
substantially all of the assets of the Company shall not be deemed to be a
liquidation, dissolution or winding up of the Company.
REDEMPTION
The Preferred Stock will be redeemable in whole or in part, at the times
and at the redemption prices set forth in the applicable Prospectus Supplement.
Unless otherwise indicated in a Prospectus Supplement, the Company may not
purchase or redeem any of the outstanding shares of any series of Preferred
Stock unless full cumulative dividends, if any, have been paid or declared and
set apart for payment upon all outstanding shares of any series of preferred
stock for all past dividend periods, and unless all matured obligations of the
Company with respect to all sinking funds, retirement funds or purchase funds
for all series of preferred stock then outstanding have been met.
VOTING RIGHTS
Unless otherwise indicated in a Prospectus Supplement, the holders of the
Preferred Stock will not be entitled to vote under any circumstances.
DESCRIPTION OF PREFERRED SECURITIES
Each Allstate Trust may issue, from time to time, only one series of
Preferred Securities having terms described in the Prospectus Supplement
relating thereto. The Amended and Restated Declaration of Trust (the "Restated
Declaration") of each Allstate Trust will authorize the Regular Trustees of such
Allstate Trust to issue on behalf of such Allstate Trust one series of Preferred
Securities. Each Restated Declaration will be qualified as an indenture under
the Trust Indenture Act. The Preferred Securities will have such terms,
including distributions, redemption, voting, liquidation and such other
preferred, deferred or other special rights or such restrictions as shall be set
forth in the Restated Declaration or made part of the Restated Declaration by
the Trust Indenture Act, and which will mirror the terms of the Subordinated
Debt Securities held by the Allstate Trust and described in the Prospectus
Supplement related thereto. The following summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the form of Restated Declaration, which is
filed as an exhibit to the Registration Statement of which this Prospectus forms
a part, and the Trust Indenture Act. Reference is made to the Prospectus
Supplement relating to the Preferred Securities of any Allstate Trust for
specific terms, including (i) the distinctive designation of such Preferred
Securities; (ii) the number of Preferred Securities issued by such Allstate
Trust; (iii) the annual distribution rate (or method of determining such rate)
for Preferred Securities issued by such Allstate Trust and the date or dates
upon which such distributions shall be payable;
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provided, however, that distributions on such Preferred Securities shall be
payable on a quarterly basis to holders of such Preferred Securities as of a
record date in each quarter during which such Preferred Securities are
outstanding; (iv) whether distributions on Preferred Securities issued by such
Allstate Trust shall be cumulative, and, in the case of Preferred Securities
having such cumulative distribution rights, the date or dates or method of
determining the date or dates from which distributions on Preferred Securities
issued by such Allstate Trust shall be cumulative; (v) the amount or amounts
which shall be paid out of the assets of such Allstate Trust to the holders of
Preferred Securities of such Allstate Trust upon voluntary or involuntary
dissolution, winding-up or termination of such Allstate Trust; (vi) the
obligation or the option, if any, of such Allstate Trust to purchase or redeem
Preferred Securities issued by such Allstate Trust and the price or prices at
which, the period or periods within which, and the terms and conditions upon
which, Preferred Securities issued by such Allstate Trust shall be purchased or
redeemed, in whole or in part, pursuant to such obligation; (vii) the voting
rights, if any, of Preferred Securities issued by such Allstate Trust in
addition to those required by law, including the number of votes per Preferred
Security and any requirement for the approval by the holders of Preferred
Securities, or of Preferred Securities issued by one or more Allstate Trusts, or
of both, as a condition to specified action or amendments to the Declaration of
such Allstate Trust; (viii) the terms and conditions, if any, upon which the
Subordinated Debt Securities may be distributed to holders of Preferred
Securities; (ix) if applicable, any securities exchange upon which the Preferred
Securities shall be listed; and (x) any other relevant rights, preferences,
privileges, limitations or restrictions of Preferred Securities issued by such
Allstate Trust not inconsistent with the Restated Declaration of such Allstate
Trust or with applicable law. All Preferred Securities offered hereby will be
guaranteed by the Company to the extent set forth below under "Description of
Preferred Securities Guarantees." Certain United States federal income tax
considerations applicable to any offering of Preferred Securities will be
described in the Prospectus Supplement relating thereto.
In connection with the issuance of Preferred Securities, each Allstate
Trust will issue one series of Common Securities. The Restated Declaration of
each Allstate Trust will authorize the Regular Trustees of such trust to issue
on behalf of such Allstate Trust one series of Common Securities having such
terms including distributions, redemption, voting and liquidation rights or such
restrictions as shall be set forth therein. The terms of the Common Securities
issued by an Allstate Trust will be substantially identical to the terms of the
Preferred Securities issued by such trust and the Common Securities will rank
pari passu, and payments will be made thereon pro rata, with the Preferred
Securities except that, upon an event of default under the Restated Declaration,
the rights of the holders of the Common Securities to payment in respect of
distributions and payments upon liquidation, redemption and otherwise will be
subordinated to the rights of the holders of the Preferred Securities. Except in
certain limited circumstances, the Common Securities will also carry the right
to vote to appoint, remove or replace any of the Allstate Trustees of an
Allstate Trust. All of the Common Securities of each Allstate Trust will be
directly or indirectly owned by the Company.
ENFORCEMENT OF CERTAIN RIGHTS BY HOLDERS OF PREFERRED SECURITIES
If an Event of Default under the Restated Declaration of an Allstate Trust
occurs and is continuing, then the holders of Preferred Securities of such
Allstate Trust would rely on the enforcement by the Property Trustee of its
rights as a holder of the applicable series of Subordinated Debt Securities
against the Company. In addition, the holders of a majority in liquidation
amount of the Preferred Securities of such Allstate Trust will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Property Trustee or to direct the exercise of any trust or
power conferred upon the Property Trustee under the applicable Restated
Declaration, including the right to direct the Property Trustee to exercise the
remedies available to it as a holder of the Subordinated Debt Securities. If the
Property Trustee fails to enforce its rights under the applicable series of
Subordinated Debt Securities, a holder of Preferred Securities of such Allstate
Trust may institute a legal proceeding directly against the Company to enforce
the Property Trustee's rights under the applicable series of Subordinated Debt
Securities without first instituting any legal proceeding against the Property
Trustee or any other person or entity. Notwithstanding the foregoing, if an
Event of Default under the applicable Restated Declaration has occurred and is
continuing and such event is attributable to the failure of the Company to pay
interest or principal on the applicable series of Subordinated Debt Securities
on the date such interest or principal is otherwise payable (or in the case of
redemption, on the
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redemption date), then a holder of Preferred Securities of such Allstate Trust
may directly institute a proceeding for enforcement of payment to such holder of
the principal of or interest on the applicable series of Subordinated Debt
Securities having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such holder (a "Direct Action") on or after the
respective due date specified in the applicable series of Subordinated Debt
Securities. In connection with such Direct Action, the Company will be
subrogated to the rights of such holder of Preferred Securities under the
applicable Restated Declaration to the extent of any payment made by the Company
to such holder of Preferred Securities in such Direct Action.
DESCRIPTION OF PREFERRED SECURITIES GUARANTEES
Set forth below is a summary of information concerning the Preferred
Securities Guarantees which will be executed and delivered by the Company for
the benefit of the holders from time to time of Preferred Securities. Each
Preferred Securities Guarantee will be qualified as an indenture under the Trust
Indenture Act. State Street Bank and Trust Company will act as the independent
trustee under each Preferred Securities Guarantee (the "Preferred Guarantee
Trustee") for purposes of compliance with the Trust Indenture Act. The terms of
each Preferred Securities Guarantee will be those set forth in such Preferred
Securities Guarantee and those made part of such Preferred Securities Guarantee
by the Trust Indenture Act. The following summary does not purport to be
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the form of Preferred Securities Guarantee,
which is filed as an exhibit to the Registration Statement of which this
Prospectus forms a part, and the Trust Indenture Act. Each Preferred Securities
Guarantee will be held by the Preferred Guarantee Trustee for the benefit of the
holders of the Preferred Securities of the applicable Allstate Trust.
GENERAL
Pursuant to each Preferred Securities Guarantee, the Company will agree, to
the extent set forth therein, to pay in full, to the holders of the Preferred
Securities issued by an Allstate Trust, the Guarantee Payments (as defined
herein) (except to the extent paid by such Allstate Trust), as and when due,
regardless of any defense, right of set-off or counterclaim which such Allstate
Trust may have or assert. The following payments with respect to Preferred
Securities issued by an Allstate Trust to the extent not paid by such Allstate
Trust (the "Guarantee Payments") will be subject to the Preferred Securities
Guarantee thereon (without duplication): (i) any accrued and unpaid
distributions which are required to be paid on such Preferred Securities, to the
extent such Allstate Trust shall have funds available therefor; (ii) the
redemption price set forth in the applicable Prospectus Supplement (the
"Redemption Price"), which will not be lower than the liquidation amount, and
all accrued and unpaid distributions, to the extent such Allstate Trust has
funds available therefor with respect to any Preferred Securities called for
redemption by such Allstate Trust; and (iii) upon a voluntary or involuntary
dissolution, winding-up or termination of such Allstate Trust (other than in
connection with the distribution of Subordinated Debt Securities to the holders
of Preferred Securities or the redemption of all of the Preferred Securities),
the lesser of (a) the aggregate of the liquidation amount and all accrued and
unpaid distributions on such Preferred Securities to the date of payment, to the
extent such Allstate Trust has funds available therefor and (b) the amount of
assets of such Allstate Trust remaining available for distribution to holders of
such Preferred Securities in liquidation of such Allstate Trust. The Company's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by the Company to the holders of Preferred Securities or by
causing the applicable Allstate Trust to pay such amounts to such holders.
Each Preferred Securities Guarantee will not apply to any payment of
distributions on the Preferred Securities except to the extent such Allstate
Trust shall have funds available therefor. If the Company does not make interest
payments on the Subordinated Debt Securities purchased by an Allstate Trust,
such Allstate Trust will not pay distributions on the Preferred Securities
issued by such Allstate Trust and will not have funds available therefor. See
"Description of Debt Securities -- Certain Covenants of the Company." The
Preferred Securities Guarantee, when taken together with the Company's
obligations under the Subordinated Debt Securities, the Subordinated Indenture
and the Declaration, including its obligations to pay costs, expenses, debts and
liabilities of such Allstate Trust (other than with respect to the Trust
Securities), will
20
<PAGE> 22
provide a full and unconditional guarantee on a subordinated basis by the
Company of payments due on the Preferred Securities.
The Company has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Allstate Trusts with respect to the Common
Securities (the "Common Securities Guarantees") to the same extent as the
Preferred Securities Guarantee, except that upon an event of default under the
Subordinated Indenture, holders of Preferred Securities shall have priority over
holders of Common Securities with respect to distributions and payments on
liquidation, redemption or otherwise.
CERTAIN COVENANTS OF THE COMPANY
In each Preferred Securities Guarantee, the Company will covenant that, so
long as any Preferred Securities issued by the applicable Allstate Trust remain
outstanding, if there shall have occurred any event that would constitute an
event of default under such Preferred Securities Guarantee or the Declaration of
such Allstate Trust, then, unless otherwise set forth in a Prospectus Supplement
(a) the Company shall not declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase or make a liquidation payment with respect
to, any of its capital stock (other than (i) purchases or acquisitions of shares
of Common Stock in connection with the satisfaction by the Company of its
obligations under any employee benefit plans, (ii) as a result of a
reclassification of the Company's capital stock or the exchange or conversion of
one class or series of the Company's capital stock for another class or series
of the Company's capital stock or (iii) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or exchange
provisions of such capital stock of the Company or the security being converted
or exchanged) or make any guarantee payments with respect to the foregoing and
(b) the Company shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Company which rank pari passu with or junior to such
Subordinated Debt Securities.
MODIFICATION OF THE PREFERRED SECURITIES GUARANTEES; ASSIGNMENT
Except with respect to any changes which do not adversely affect the rights
of holders of Preferred Securities (in which case no vote will be required),
each Preferred Securities Guarantee may be amended only with the prior approval
of the holders of not less than a majority in liquidation amount of the
outstanding Preferred Securities issued by the applicable Allstate Trust. The
manner of obtaining any such approval of holders of such Preferred Securities
will be as set forth in an accompanying Prospectus Supplement. All guarantees
and agreements contained in a Preferred Securities Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of the Company and
shall inure to the benefit of the holders of the Preferred Securities of the
applicable Allstate Trust then outstanding.
TERMINATION
Each Preferred Securities Guarantee will terminate as to the Preferred
Securities issued by the applicable Allstate Trust (a) upon full payment of the
Redemption Price of all Preferred Securities of such Allstate Trust, (b) upon
distribution of the Subordinated Debt Securities held by such Allstate Trust to
the holders of the Preferred Securities of such Allstate Trust or (c) upon full
payment of the amounts payable in accordance with the Declaration of such
Allstate Trust upon liquidation of such Allstate Trust. Each Preferred
Securities Guarantee will continue to be effective or will be reinstated, as the
case may be, if at any time any holder of Preferred Securities issued by the
applicable Allstate Trust must restore payment of any sums paid under such
Preferred Securities or such Preferred Securities Guarantee. The subordination
provisions of the Subordinated Debt Securities provide that in the event payment
is made on the Subordinated Debt Securities or the Preferred Securities
Guarantee in contravention of such provisions, such payments shall be paid over
to the holders of Senior Indebtedness.
21
<PAGE> 23
EVENTS OF DEFAULT
An event of default under a Preferred Securities Guarantee will occur upon
the failure of the Company to perform any of its payment or other obligations
thereunder.
The holders of a majority in liquidation amount of the Preferred Securities
relating to such Preferred Securities Guarantee have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Preferred Guarantee Trustee in respect of the Preferred Securities Guarantee
or to direct the exercise of any trust or power conferred upon the Preferred
Guarantee Trustee under such Preferred Securities. If the Preferred Guarantee
Trustee fails to enforce such Preferred Securities Guarantee, any holder of
Preferred Securities relating to such Preferred Securities Guarantee may
institute a legal proceeding directly against the Company to enforce the
Preferred Guarantee Trustee's rights under such Preferred Securities Guarantee,
without first instituting a legal proceeding against the relevant Allstate
Trust, the Preferred Guarantee Trustee or any other person or entity.
Notwithstanding the foregoing, if the Company has failed to make a guarantee
payment, a holder of Preferred Securities may directly institute a proceeding
against the Company for enforcement of the Preferred Securities Guarantee for
such payment. The Company waives any right or remedy to require that any action
be brought first against such Allstate Trust or any other person or entity
before proceeding directly against the Company.
STATUS OF THE PREFERRED SECURITIES GUARANTEES
Unless otherwise indicated in a Prospectus Supplement, the Preferred
Securities Guarantees will constitute unsecured obligations of the Company and
will rank (i) subordinate and junior in right of payment to all other
liabilities of the Company, (ii) pari passu with the most senior preferred or
preference stock now or hereafter issued by the Company and with any guarantee
now or hereafter entered into by the Company in respect of any preferred or
preference stock of any affiliate of the Company, and (iii) senior to Common
Stock. The terms of the Preferred Securities provide that each holder of
Preferred Securities issued by the applicable Allstate Trust by acceptance
thereof agrees to the subordination provisions and other terms of the Preferred
Securities Guarantee relating thereto.
The Preferred Securities Guarantees will constitute a guarantee of payment
and not of collection (that is, the guaranteed party may institute a legal
proceeding directly against the guarantor to enforce its rights under the
guarantee without instituting a legal proceeding against any other person or
entity).
INFORMATION CONCERNING THE PREFERRED GUARANTEE TRUSTEE
The Preferred Guarantee Trustee, prior to the occurrence of a default with
respect to a Preferred Securities Guarantee, undertakes to perform only such
duties as are specifically set forth in such Preferred Securities Guarantee and,
after default, shall exercise the same degree of care as a prudent individual
would exercise in the conduct of his or her own affairs. Subject to such
provisions, the Preferred Guarantee Trustee is under no obligation to exercise
any of the powers vested in it by a Preferred Securities Guarantee at the
request of any holder of Preferred Securities, unless offered reasonable
indemnity against the costs, expenses and liabilities which might be incurred
thereby.
GOVERNING LAW
The Preferred Securities Guarantees will be governed by and construed in
accordance with the internal laws of the State of New York.
PLAN OF DISTRIBUTION
The Company may sell any series of Debt Securities, Debt Warrants and
Preferred Stock and the Allstate Trusts may sell the Preferred Securities being
offered hereby (i) directly to one or more purchasers; (ii) through agents;
(iii) to or through underwriters or dealers; or (iv) through a combination of
any such methods of sale. The distribution of the Securities may be effected
from time to time in one or more transactions at a fixed price or prices, which
may be changed, or at market prices prevailing at the time of sale,
22
<PAGE> 24
at prices related to such prevailing market prices or at negotiated prices. The
Prospectus Supplement will set forth the terms of the offering of the offered
Securities, including the name or names of any underwriters, dealers or agents;
the purchase price of such Securities and the proceeds to the Company and/or an
Allstate Trust from such sale; any underwriting discounts and commissions or
agency fees and other items constituting underwriters' or agents' compensation;
any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers or any securities exchange on which such Securities
may be listed. Any initial public offering price, discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
Any discounts, concessions or commissions received by underwriters or
agents and any profits on the resale of Securities by them may be deemed to be
underwriting discounts and commissions under the Act. Unless otherwise set forth
in the Prospectus Supplement, the obligations of underwriters to purchase the
offered Securities will be subject to certain conditions precedent, and such
underwriters will be obligated to purchase all such Securities, if any are
purchased. Unless otherwise indicated in the Prospectus Supplement, any agent
will be acting on a best efforts basis for the period of its appointment.
Under certain circumstances, the Company may repurchase offered Securities
and reoffer them to the public as set forth above. The Company may also arrange
for repurchase and resale of such offered Securities by dealers.
If so indicated in the Prospectus Supplement, the Company may authorize
underwriters, dealers or other persons acting as the Company's agents to solicit
offers by certain institutions to purchase Securities from the Company, pursuant
to contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others (but in all cases such institutions must be
approved by the Company). The obligations of any purchaser under any such
contract will be subject to the conditions that the purchase of the offered
Securities shall not at the time of delivery be prohibited under the laws of the
jurisdiction to which such purchaser is subject. The underwriters and such other
agents will not have any responsibility in respect of the validity or
performance of such contracts.
In connection with the offering of Securities, the Company and/or, if
applicable, any Allstate Trust, may grant to the underwriters an option to
purchase additional Securities to cover over-allotments, if any, at the initial
public offering price (with an additional underwriting commission), as may be
set forth in the accompanying Prospectus Supplement. If the Company and/or, if
applicable, any Allstate Trust, grants any over-allotment option, the terms of
such over-allotment option will be set forth in the Prospectus Supplement for
such Securities.
The Securities may be a new issue of securities that have no established
trading market. Any underwriters to whom Securities are sold for public offering
and sale may make a market in such Securities, but such underwriters will not be
obligated to do so and may discontinue any market making at any time without
notice. Such Securities may or may not be listed on a national securities
exchange. No assurance can be given as to the liquidity of or the existence of
trading markets for any Securities.
Under agreements which may be entered into by the Company and/or, if
applicable, any Allstate Trust, underwriters and agents who participate in the
distribution of Securities may be entitled to indemnification by the Company
against certain liabilities, including liabilities under the Act, or to
contribution with respect to payments which the underwriters or agents may be
required to make in respect thereof. Such underwriters and agents may be
customers of, engaged in transactions with, or perform services for the Company
in the ordinary course of business.
LEGAL OPINION
The validity of the Securities offered hereby will be passed upon for the
Company by Kirkland & Ellis, Chicago, Illinois, counsel for the Company and
Morris, James, Hitchens & Williams, Wilmington, Delaware, counsel for the
Allstate Trusts.
23
<PAGE> 25
EXPERTS
The consolidated financial statements and the related financial statement
schedules incorporated in this Prospectus by reference from the Company's Annual
Report on Form 10-K for the year ended December 31, 1997 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their reports, which
are incorporated herein by reference, and have been so incorporated in reliance
upon the reports of such firm given upon their authority as experts in
accounting and auditing.
24
<PAGE> 26
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses (other than underwriting
discounts and commissions) expected to be incurred with the Offerings described
in this Registration Statement. All amounts are estimated except the SEC
registration fee.
<TABLE>
<S> <C>
Registration Fee........................................... $590,000
*Printing Costs for Registration Statement, prospectus and
related documents......................................... 40,000
*Accounting Fees and Expenses............................... 10,000
*Legal Fees and Expenses.................................... 75,000
*Trustees' Fees............................................. 10,000
*Miscellaneous.............................................. 255,000
--------
*Total................................................ $980,000
========
</TABLE>
- -------------------------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law, inter alia, empowers a
Delaware corporation to indemnify any persons who were, are or are threatened to
be made parties to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other than
an action by or in the right of such corporation), by reason of the fact that
such person is or was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually reasonably incurred by such person in
connection with such action, suit or proceeding, provided such person acted in
good faith and in a manner he reasonably believed to be in or not opposed to the
corporation's best interests and, with respect to any criminal action or
proceeding, had no reasonable cause to believe that his conduct was illegal. A
Delaware corporation may indemnify any persons who were, are or are threatened
to be made parties to any threatened, pending or completed action or suit by or
in the right of the corporation by reason of the fact that such person was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action or suit, provided such person
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the corporation's best interests, provided that no indemnification is
permitted without judicial approval if the officer, director, employee or agent
is adjudged to be liable to the corporation. Where an officer, director,
employee or agent is successful on the merits or otherwise in the defense of any
action referred to above, the corporation must indemnify him against the
expenses which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or enterprise,
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would otherwise have the power to indemnify him under Section 145. The Company
maintains policies insuring its and its subsidiaries' officers and directors
against certain liabilities for actions taken in such capacities, including
liabilities under the Securities Act of 1933.
Article IV of the Bylaws of the Company provides for indemnification of the
directors and officers of the Company to the full extent permitted by law, as
now in effect or later amended. In addition, the Bylaws provide for
indemnification against expenses incurred by a director or officer to be paid by
the Company in
II-1
<PAGE> 27
advance of the final disposition of such action, suit or proceedings; provided,
however, that if required by the Delaware General Corporation Law, an
advancement of expenses will be made only upon receipt of an undertaking by or
on behalf of the director or officer to repay such amount if it shall be
ultimately determined that he is not entitled to be indemnified by the Company.
The Bylaws further provide for a contractual cause of action on the part of
directors and officers of the Company with respect to indemnification claims
which have not been paid by the Company.
Article Eighth of the Company's Restated Certificate of Incorporation
limits to the fullest extent permitted by the Delaware General Corporation Law
as the same exists or may have been amended, the personal liability of the
Company's directors to the Company or its stockholders for monetary damages for
a breach of their fiduciary duty as directors. Section 102(b)(7) of the Delaware
General Corporation Law currently provides that such provisions do not eliminate
the liability of a director (i) for a breach of the director's duty of loyalty
to the Company or its stockholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law, (iii)
under Section 174 of the Delaware General Corporation Law (relating to the
declaration of dividends and purchase or redemption of shares in violation of
the Delaware General Corporation Law), or (iv) for any transaction from which
the director derived an improper personal benefit.
Reference is made to the forms of Underwriting Agreement filed as Exhibits
1.1 and 1.2 to the Registration Statement for the Company's and the
Underwriters' respective agreements to indemnify each other, and to provide
contribution in circumstances where indemnification is unavailable.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
1.1 Form of Underwriting Agreement relating to Debt Securities,
Debt Warrants and Preferred Stock
1.2 Form of Underwriting Agreement relating to Preferred
Securities and the related Preferred Securities Guarantees
4.1 Certificate of Incorporation of The Allstate Corporation
incorporated by reference to Exhibit 3 of the Company's Form
10-Q for the quarter ended June 30, 1998 (File No. 1-11840)
4.2 Bylaws of The Allstate Corporation incorporated by reference
to Exhibit 3(b) of the Company's Form 10-Q for the quarter
ended June 30, 1995 (File No. 1-11840)
4.3 Indenture for Senior Debt Securities, dated as of December
16, 1997, between the Company and State Street Bank and
Trust Company, as Trustee incorporated by reference to
Exhibit 4.2 of the Company's Form 8-K, dated December 16,
1997 (File No. 1-11840)
4.4 Indenture for Subordinated Debt Securities, dated as of
November 25, 1996, between the Company and State Street Bank
and Trust Company, as Trustee incorporated by reference to
Exhibit 4.1 of the Company's Form 8-K, dated November 25,
1996 (File No. 1-11840)
4.4A Form of Supplemental Indenture between the Company and State
Street Bank and Trust Company, as Trustee
4.5 Certificate of Trust of Allstate Financing III
4.6 Declaration of Trust of Allstate Financing III
4.7 Certificate of Trust of Allstate Financing IV
4.8 Declaration of Trust of Allstate Financing IV
4.9 Certificate of Trust of Allstate Financing V
4.10 Declaration of Trust of Allstate Financing V
4.11 Certificate of Trust of Allstate Financing VI
4.12 Declaration of Trust of Allstate Financing VI
4.13 Form of Amended and Restated Declaration of Trust
(substantially identical, except for names and dates, for
Allstate Financing III, Allstate Financing IV, Allstate
Financing V and Allstate Financing VI)
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<PAGE> 28
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
4.14 Form of Preferred Securities Guarantee (substantially
identical, except for names and dates, for Allstate
Financing III, Allstate Financing IV, Allstate Financing V
and Allstate Financing VI)
4.15 Form of Debt Warrant Agreement
4.16 Form of Debt Warrant Certificates (included as Exhibit A of
Exhibit 4.15)
5.1 Opinion of Kirkland & Ellis
5.2 Opinion of Morris, James, Hitchens & Williams with respect
to Allstate Financing III
5.3 Opinion of Morris, James, Hitchens & Williams with respect
to Allstate Financing IV
5.4 Opinion of Morris, James, Hitchens & Williams with respect
to Allstate Financing V
5.5 Opinion of Morris, James, Hitchens & Williams with respect
to Allstate Financing VI
12 Computation of Ratio of Earnings to Fixed Charges
15 Acknowledgment of Deloitte & Touche LLP
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Kirkland & Ellis (included in Exhibit 5.1)
23.3 Consents of Morris, James, Hitchens & Williams (included in
Exhibits 5.2, 5.3, 5.4 and 5.5)
24 Powers of Attorney (included in the signature page hereto)
25.1 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company, as Trustee for
the Senior Indenture for the Senior Debt Securities
25.2 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company, as Trustee for
the Subordinated Indenture for the Subordinated Debt
Securities
25.3 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company, as Property
Trustee for the Amended and Restated Declaration of Trust of
Allstate Financing III
25.4 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company, as Property
Trustee for the Amended and Restated Declaration of Trust of
Allstate Financing IV
25.5 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company, as Property
Trustee for the Amended and Restated Declaration of Trust of
Allstate Financing V
25.6 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company, as Property
Trustee for the Amended and Restated Declaration of Trust of
Allstate Financing VI
25.7 Statement of Eligibility under the Trust Indenture Act of
1939 of State Street Bank and Trust Company, as Preferred
Guarantee Trustee for the Preferred Securities Guarantees
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate
II-3
<PAGE> 29
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement; and
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of each
registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrants pursuant to the foregoing provisions, or otherwise, the
registrants have been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrants will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question of whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(e) The undersigned registrants hereby undertake to provide to the
underwriters at the closing specified in the underwriting agreements,
certificate in such denominations and registered in such names as required by
the underwriter to permit prompt delivery to each purchaser.
(f) The undersigned registrants hereby undertake to file an application for
the purpose of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under Section 305 (b)(2) of
the Act.
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<PAGE> 30
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Allstate
Corporation certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Northbrook, State of Illinois, on this 18th day
of July, 1998.
THE ALLSTATE CORPORATION
By /s/ ROBERT W. PIKE
--------------------------------------
Name: Robert W. Pike
Title: Vice President, Secretary and
General Counsel
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Jerry D. Choate, Edward M. Liddy, Thomas J. Wilson II, Robert W. Pike and James
P. Zils as true and lawful attorneys-in-fact, each acting alone, with full
powers of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any or all amendments, including any
post-effective amendments, to this Registration Statement, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and confirming all that
said attorneys-in-fact or their substitutes, each acting alone, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JERRY D. CHOATE Chairman of the Board and Chief July 18, 1998
- ------------------------------------------------ Executive Officer, Director
Jerry D. Choate (Principal Executive Officer)
/s/ THOMAS J. WILSON II Vice President and Chief Financial July 18, 1998
- ------------------------------------------------ Officer
Thomas J. Wilson II (Principal Financial Officer)
/s/ SAMUEL H. PILCH Controller July 23, 1998
- ------------------------------------------------ (Principal Accounting Officer)
Samuel H. Pilch
/s/ JAMES G. ANDRESS Director July 18, 1998
- ------------------------------------------------
James G. Andress
/s/ WARREN L. BATTS Director July 18, 1998
- ------------------------------------------------
Warren L. Batts
/s/ EDWARD A. BRENNAN Director July 18, 1998
- ------------------------------------------------
Edward A. Brennan
</TABLE>
II-5
<PAGE> 31
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ JAMES M. DENNY Director July 18, 1998
- ------------------------------------------------
James M. Denny
/s/ MICHAEL A. MILES Director July 18, 1998
- ------------------------------------------------
Michael A. Miles
/s/ JOSHUA I. SMITH Director July 18, 1998
- ------------------------------------------------
Joshua I. Smith
</TABLE>
II-6
<PAGE> 32
Pursuant to the requirements of the Securities Act of 1933, Allstate
Financing III, Allstate Financing IV, Allstate Financing V and Allstate
Financing VI certify that they have reasonable grounds to believe that they meet
all of the requirements for filing on Form S-3 and have duly caused this
Registration Statement to be signed on their behalf by the undersigned,
thereunto duly authorized, in the City of Northbrook, State of Illinois on this
17th day of August, 1998.
ALLSTATE FINANCING III
(Registrant)
By: The Allstate Corporation, as
Depositor
By: /s/ ROBERT W. PIKE
--------------------------------------
Name: Robert W. Pike
Title: Vice President, Secretary and
General Counsel
ALLSTATE FINANCING IV
(Registrant)
By: The Allstate Corporation, as
Depositor
By: /s/ ROBERT W. PIKE
--------------------------------------
Name: Robert W. Pike
Title: Vice President, Secretary and
General Counsel
ALLSTATE FINANCING V
(Registrant)
By: The Allstate Corporation, as
Depositor
By: /s/ ROBERT W. PIKE
--------------------------------------
Name: Robert W. Pike
Title: Vice President, Secretary and
General Counsel
ALLSTATE FINANCING VI
(Registrant)
By: The Allstate Corporation, as
Depositor
By: /s/ ROBERT W. PIKE
--------------------------------------
Name: Robert W. Pike
Title: Vice President, Secretary and
General Counsel
II-7
<PAGE> 1
EXHIBIT 1.1
[FORM OF UNDERWRITING AGREEMENT]
THE ALLSTATE CORPORATION
DEBT SECURITIES, DEBT WARRANTS
AND PREFERRED STOCK
______________________
UNDERWRITING AGREEMENT
______________________
_______, ____
[Underwriters]
c/o [ ]
Ladies and Gentlemen:
From time to time The Allstate Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell certain of its debt securities, debt
warrants and preferred stock registered under the Registration Statement
referred to in Section 2(a) (the "Securities"). The Company intends to enter
into one or more Pricing Agreements (each a "Pricing Agreement") in the form of
Annex I hereto, with such additions and deletions as the parties thereto may
determine, and, subject to the terms and conditions stated herein and therein,
to issue and sell to the firms named in Schedule I of the applicable Pricing
Agreement (such firms constituting the "Underwriters" with respect to such
Pricing Agreement and the Securities specified therein) the principal amount of
its Securities specified in Schedule II to the applicable Pricing Agreement
(with respect to such Pricing Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the Senior Indenture, Subordinated Indenture, Debt Warrant
Agreement or Certificate of Incorporation of the Company (including the
applicable Certificate of Designation), as applicable and in substantially the
form filed
<PAGE> 2
as an exhibit to the Registration Statement (the "Securities Agreement") and
identified in such Pricing Agreement.
1.(a) Sales; Representatives. Particular sales of Designated Securities
may be made from time to time to the Underwriters of such Securities, for whom
the firms designated as representatives of the Underwriters of such Securities
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as the sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of the Company
to sell any of the Securities or as an obligation of any of the Underwriters to
purchase any of the Securities.
(b) Pricing Agreements. The obligation of the Company to issue and sell
any of the Securities and the obligation of any of the Underwriters to purchase
any of the Securities shall be evidenced by the Pricing Agreement with respect
to the Designated Securities specified therein. Such Pricing Agreement shall
specify the number or aggregate principal amount of such Designated Securities,
the initial public offering price of such Designated Securities, the purchase
price to the Underwriters of such Designated Securities, the names of the
Underwriters of such Designated Securities, the names of the Representatives of
such Underwriters and the number or principal amount of such Designated
Securities to be purchased by each Underwriter. In addition, such Pricing
Agreement shall set forth the date, time and manner of delivery of such
Designated Securities and payment therefor. Such Pricing Agreement shall also
specify (in a manner consistent with the applicable Securities Agreement and
the Registration Statement and prospectus with respect thereto), the principal
terms of such Designated Securities. A Pricing Agreement shall be in the form
of an executed writing (which may be in counterparts), and may be evidenced by
an exchange of telegraphic communications or any other rapid transmission
device designed to produce a written record of communications transmitted. The
obligations of the Underwriters under this Agreement and each Pricing Agreement
shall be several and not joint.
2
<PAGE> 3
2. 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 under the Securities
Act of 1933, as amended (the "Act") (the file number of which is set forth in
Schedule II to the applicable Pricing Agreement), 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;
3
<PAGE> 4
(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, in the case of
Securities issued pursuant to an Indenture, 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-1s") 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.
(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 Securities have been duly authorized and, when the Securities are
issued and delivered pursuant to this Agreement and the Pricing Agreement with
respect to such Securities, such Securities will have been duly executed,
authenticated, issued and delivered (and, in the case of Securities
representing capital
4
<PAGE> 5
stock of the Company, will be fully paid and nonassessable) and will constitute
valid and legally binding obligations of the Company entitled to the benefits
provided by the applicable Securities Agreement; such Securities Agreement has
been duly authorized and, in the case of Securities issued pursuant to an
Indenture, such Indenture has been duly qualified under the Trust Indenture Act
and, at the Time of Delivery for any Securities, each Securities Agreement will
constitute a valid and legally binding agreement of the Company, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, fraudulent transfer, moratorium and other similar laws relating to
or affecting creditors' rights generally and to general principles of equity;
and
(e) The issue and sale of the Securities pursuant to any Pricing
Agreement, and compliance by the Company with all of the provisions of the
Securities, the applicable Securities Agreement, this Agreement and any Pricing
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 of the subsidiaries listed in Annex
III hereto (each, a "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 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, regis-
5
<PAGE> 6
trations 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 considered as a whole.
3. Terms of Sale. Upon the execution of the Pricing Agreement applicable
to any Designated Securities and authorization by the Representatives of the
release of such Designated Securities, the several Underwriters propose to
offer such Designated Securities for sale upon the terms and conditions set
forth in the Final Prospectus as amended or supplemented.
4. Delivery of Designated Securities. Designated Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement relating
thereto, in definitive form to the extent practicable, and in such authorized
denominations and registered in such names as the Representatives may request
upon at least forty-eight hours' prior notice to the Company, shall be
delivered by or on behalf of the Company to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of
the purchase price therefor in the funds specified in such Pricing Agreement,
all at the place and time and date specified in such Pricing Agreement or at
such other place and time and date as the Representatives and the Company may
agree upon in writing, such time and date being herein called the "Time of
Delivery" for such Securities.
5. Company Covenants. The Company agrees with each of the Underwriters
of any Designated Securities:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the applicable Designated 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 of the Pricing Agreement relating to such Designated Securities and
prior to the Time of Delivery for such Designated Securities unless the
Representatives for such
6
<PAGE> 7
Designated Securities 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 such
Designated 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 such Designated 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 such 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 such Designated 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
7
<PAGE> 8
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 such Designated 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 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 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 later filed of the Registration Statements (as defined in
Rule 158(c)), 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 (including, at the option of the Company, Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for any Designated Securities and continuing to and including the latter of (i)
the termination of trading restrictions for Designated Securities, as notified
to the Company by the Representatives or their counsel and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any securities of the Company which are substantially
similar to such Designated Securities, without the prior written consent of the
Representatives, which consent shall not be unreasonably withheld.
8
<PAGE> 9
6. 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, any Pricing Agreement, any Securities
Agreement, 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 5(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,
Debt Warrant Agent, Paying Agent or Transfer Agent and the fees and
disbursements of counsel for any such Trustee, Debt Warrant Agent, Paying Agent
or Transfer Agent in connection with a Securities Agreement and the Securities
issued pursuant to any Securities Agreement; 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 8 and Section 11 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.
7. Conditions to Underwriters' Obligations. The obligations of the
Underwriters of any Designated Securities under the Pricing Agreement relating
to such Designated Securities shall be subject to the condition
9
<PAGE> 10
that all representations and warranties of the Company herein are, at and as of
the Time of Delivery for such Designated Securities, true and correct, the
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
applicable Designated 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
5(c) 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) [ ], counsel for the Company, shall have furnished to you their
written opinion, dated each Time of Delivery for such Designated Securities, in
form and substance reasonably satisfactory to you, to the effect that:
(i) The Company 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) The issue and sale of the Designated Securities and the
performance by the Company of its obligations under the applicable
Securities Agreement and the consummation
10
<PAGE> 11
by the Company of the transactions contemplated therein 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 agreement or instrument relating to the
Company or any of its subsidiaries set forth on Schedule A attached
hereto [Schedule A to be a list of material agreements]; nor will any
such action result in any violation of the provisions of the
Certificate or the By-Laws or any applicable law or statute or any
order, rule or regulation of any 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 our opinion, are normally applicable to transactions of the
type contemplated by this Agreement, and provided further, that no
opinion need be given with respect to (i) the Act, the Exchange Act, the
Trust Indenture Act, the rules and regulations issued pursuant to each
such act, or any order, rule or regulation made or established by any
insurance official or regulatory authority or the National Association
of Securities Dealers, Inc., (ii) any state securities or Blue Sky laws
in connection with the purchase and distribution of the Designated
Securities by the Underwriters or (iii) conflicts, breaches or
violations which individually and 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 Designated
Securities.
(iii) 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 Designated Securities
by
11
<PAGE> 12
the Company or the consummation by the Company of the transactions
contemplated by this Agreement, except that we express no opinion with
respect to such consents, approvals, authorizations, orders,
registrations or qualifications (i) as may be required under the Act, the
Exchange Act, the Trust Indenture Act, the rules and regulations issued
pursuant to each such act, or any order, rule or regulation made or
established by any insurance official or regulatory authority or the
National Association of Securities Dealers, Inc., (ii) as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Designated Securities by the Underwriters, (iii)
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
Designated Securities or (iv) as may be required under foreign laws in
connection with the purchase and distribution of the Designated
Securities by any international managers; provided, that the foregoing
opinion is limited to those consents, approvals, authorizations, orders,
registrations and qualifications under laws of the United States of
America, the State of Delaware and the State of Illinois which, in our
experience, are normally applicable to transactions of the type
contemplated by this Agreement;
(iv) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered
by the Company;
(v) The Designated Securities have been duly authorized, and
(assuming their due authentication by the Trustee, if applicable) have
been duly executed, issued and delivered and constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the applicable Securities Agreement; and the Designated
Securities and the applicable Securities Agreement conform in all
material respects to the descriptions
12
<PAGE> 13
thereof in the Final Prospectus as amended or supplemented;
(vi) The applicable Securities Agreement has been duly authorized,
executed and delivered by the Company, and, in the case of the
Certificate of Designation, has been filed with the Secretary of State
of the State of Delaware, 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; and, in the case of the Senior Indenture or
the Subordinated Indenture, has been duly qualified under the Trust
Indenture Act; and
(vii) 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
13
<PAGE> 14
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 (v) hereof), 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 such Time of Delivery (other than the financial
statements and the financial, accounting and statistical data and
related schedules incorporated by reference or included therein or
excluded therefrom, or the exhibits to the Registration Statement
including the Form T-1s, 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, 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, accounting and
statistical data and related schedules incorporated by reference or
included therein or excluded therefrom, or the exhibits to the
Registration Statement including the Form T-1s, 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.
14
<PAGE> 15
(c) Robert W. Pike, Vice President, Secretary and General Counsel of the
Company, shall have furnished to you his written opinion, dated each Time of
Delivery for such Designated Securities, in form and substance reasonably
satisfactory to you, to the effect that:
(i) Each Principal Subsidiary has been duly incorporated and is
validly existing as an insurance corporation under the laws of its
jurisdiction of incorporation;
(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;
(iii) Each Principal Subsidiary is duly licensed or authorized as
an insurer or reinsurer in each 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;
(iv) 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
15
<PAGE> 16
whole;
(v) 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;
(vi) 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 jurisdiction which are appli-
16
<PAGE> 17
cable to such Principal Subsidiary, except for such failures which do
not have a material adverse effect on the financial condition, business
or properties of the Company and its subsidiaries taken as a whole;
(vii) 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 its subsidiaries considered as a whole;
(viii) The issue and sale of the Designated Securities by the
Company, the compliance by the Company with all of the provisions of the
Designated Securities, the applicable Securities Agreement, this
Agreement and the Pricing Agreement with respect to the Designated
Securities will not result in any violation of any order, rule or
regulation known to such counsel of any insurance regulatory authority
having jurisdiction over the Company or any of its subsidiaries or any
of their properties which are normally applicable to transactions of the
type contemplated by this Agreement, other than such breaches,
conflicts, violations or defaults which, individually or in the
aggregate, would not have a material ad-
17
<PAGE> 18
verse effect on the financial condition, business or properties of the
Company and its subsidiaries considered as a whole;
(ix) 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 Designated Securities, 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
18
<PAGE> 19
the Company and its subsidiaries considered as a whole; and
(x) As general counsel to the Company, such counsel reviewed the
Registration Statement and Final Prospectus as amended or supplemented,
and 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 in the first
sentence of this clause (x), such counsel confirms
(A) 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), appeared 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,
(B) that 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 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 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; notwithstanding the foregoing
such counsel need express no opinion or belief with respect to 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 in the descriptions of
Designat-
19
<PAGE> 20
ed Securities and underwriting matters contained in the Final Prospectus
as amended or supplemented.
20
<PAGE> 21
Such counsel shall be entitled to rely in respect of the above opinions
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.
(d) At or before the Time of Delivery of such Designated Securities,
Deloitte & Touche LLP shall have furnished to the Representatives a letter to
the effect set forth in Annex II hereto.
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus as amended or supplemented any
material adverse change in the financial condition, business or properties of
the Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Final Prospectus as amended or supplemented (and
other than a catastrophe not meeting the threshold contemplated by (w) below),
and (ii) since the respective dates as of which information is given in the
Final Prospectus as amended or supplemented there shall not have been (w) any
catastrophe or any impending catastrophe which, in the Company's judgment, is
highly probable to result in gross
21
<PAGE> 22
underwriting losses in excess of $[500 million] pursuant to insurance coverage
written by the Company's subsidiaries, (x) any material addition, or any
development involving a prospective material addition, to either the Company's
consolidated reserve for property-liability insurance claims and claims expense
or the Company's consolidated reserve for life insurance policy benefits or (y)
any material increase in the consolidated long-term debt of the Company.
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities (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 Moody's 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 pubic offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the Final
Prospectus as amended or supplemented;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities 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 material 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 Designated Securities on the terms and
in the manner contemplated by the Final Prospectus as amended or supplemented;
and
22
<PAGE> 23
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities
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 such Time of Delivery, as to the performance by the
Company of all of its obligations hereunder to be performed at or prior to such
Time of Delivery, as to the matters set forth in subsections (a) and (e) of
this Section and as to such other matters as the Representatives may reasonably
request.
8.(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 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
of Designated Securities through the Representatives expressly for use in the
Final Prospectus as amended or supplemented relating to such Securities and,
provided, further, that the Company
23
<PAGE> 24
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 Designated 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, 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 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, 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
24
<PAGE> 25
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 failure to promptly notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party except to the extent it is prejudiced thereby. In case any such action
shall be brought against any indemnified party, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly,
with any other indemnifying party similar 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. Without the
prior written consent of the Indemnifying Party (not to be unreasonably
withheld), no Indemnified Party shall settle or compromise any action as to
which it has sought, or will seek, indemnification hereunder. Without the prior
written consent of each Indemnified Party (not to be unreasonably withheld), no
Indemnifying Party shall settle or compromise any action as to which such
Indemnified Party has sought indemnification hereunder.
25
<PAGE> 26
(d) If the indemnification provided for in this Section 8 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 of the Designated Securities
on the other from the offering of the Designated Securities to which any such
loss, claim, damage or liability (or action in respect thereof) relates. 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 fault of the Company on the one hand and the Underwriters of the
Designated Securities 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 such 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 Prospectus relating to such Designated Securities. 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 such 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 such 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 Pre-
26
<PAGE> 27
liminary Final Prospectus result from the fact that such Underwriter sold
Designated 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 Designated 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 of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Company under this Section 8 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 8 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
27
<PAGE> 28
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.
9.(a) Defaulting Underwriters. If any Underwriter shall default in its
obligation to purchase the Designated Securities which it has agreed to purchase
under the Pricing Agreement relating to such Designated Securities, the
Representatives may in their discretion arrange for themselves or another party
or other parties to purchase such Designated Securities on the terms contained
herein. If within thirty-six hours after such default by any Underwriter the
Representatives do not arrange for the purchase of such Designated Securities,
then the Company shall be entitled to a further period of thirty-six hours
within which to procure another party or other parties satisfactory to the
Representatives to purchase such Designated Securities on such terms. In the
event that, within the respective prescribed periods, the Representatives notify
the Company that the Representatives have so arranged for the purchase of such
Designated Securities, or the Company notifies the Representatives that it has
so arranged for the purchase of such Designated Securities, the Representatives
or the Company shall have the right to postpone the Time of Delivery for such
Designated Securities for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Final Prospectus as amended or supplemented, or in any other
documents or arrangements, and the Company agrees to file promptly any
amendments to the Registration Statement or the Final Prospectus which in the
opinion of the Representatives may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to the Pricing Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of any defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
28
<PAGE> 29
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
related to such Designated Securities and, in addition, to require each
nondefaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement;) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any nondefaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
10. 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.
29
<PAGE> 30
11. Effect of Termination of Pricing Agreement or Nondelivery of
Securities. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason, Designated 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 Designated Securities, but the Company shall then be under no
further liability to any Underwriter in respect of such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. Reliance Upon Representatives. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters of Designated
Securities 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 in the Pricing Agreement.
13. 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 transmission to the address of the Representatives as
set forth in the Pricing Agreement; 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 8(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, which address will be supplied to the Company
by the Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
30
<PAGE> 31
14. Successors and Assigns. This Agreement and each Pricing Agreement
shall be binding upon, and inure solely to the benefit of, the Underwriters,
the Company, and, to the extent provided in Sections 8 and 10 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 or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time; "Business Day." Time shall be of the essence of each Pricing
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
16. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
17. Counterparts. This Agreement and each Pricing 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.
31
<PAGE> 32
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: ____________________________________
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
32
<PAGE> 33
ANNEX I TO
UNDERWRITING
AGREEMENT
PRICING AGREEMENT
_________, ____
[ ]
As representatives of the
several Underwriters
named in Schedule I hereto
c/o [ ]
Ladies and Gentlemen:
The Allstate Corporation, a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated ___________, ____ (the "Underwriting Agreement"),
between the Company on the one hand and
_________________________________________________________ on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the "Designated
Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation or warranty as of the date of the Underwriting Agreement in
relation to the Final Prospectus (as therein defined) and also a representation
and warranty as of the date of this Pricing Agreement in relation to the Final
Prospectus as amended or supplemented relating to the Designated Securities
which are the subject of this Pricing Agreement. Each reference to the
Representatives herein and in the provisions of the Underwriting Agreement so
incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms
33
<PAGE> 34
defined in the Underwriting Agreement are used herein as therein defined. The
Representatives designated to act on behalf of the Representatives and on behalf
of each of the Underwriters of the Designated Securities pursuant to Section ___
of the Underwriting Agreement and the address of the Representatives referred to
in such Section ___ are set forth at the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Final
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Company agrees to
issue and sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company, at the time
and place and at the purchase price to the Underwriters set forth in Schedule
II hereto, the principal amount of Designated Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement between each of the
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination
34
<PAGE> 35
upon request, but without warranty on the part of the Representatives as to the
authority of the signers thereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
[ ]
On behalf of each of the Underwriters
35
<PAGE> 36
SCHEDULE I TO ANNEX I
Principal
Amount of
Designated
Securities to
Underwriters be Purchased
- ------------ -------------
_________________________________ . . . . . . . . .
_________________________________ . . . . . . . . .
_________________________________ . . . . . . . . .
_________________________________ . . . . . . . . .
[Names of Underwriters]
Total . . . . . . . . . ----------
$
==========
36
<PAGE> 37
SCHEDULE II TO ANNEX I
UNDERWRITING AGREEMENT DATED ______________, ____
REGISTRATION STATEMENT NO. __________
TITLE, PURCHASE PRICE AND DESCRIPTION OF DESIGNATED SECURITIES
Title:
Number or Aggregate Principal Amount:
Price to Public:
Purchase Price by Underwriters (include accrued interest or
amortization, if any):
Sinking Fund Provisions:
Redemption Provisions:
Other Provisions:
APPLICABLE SECURITIES AGREEMENT:
MATURITY:
INTEREST RATE:
37
<PAGE> 38
INTEREST PAYMENT DATES:
TIME OF DELIVERY AND LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
UNDERWRITERS:
[OTHER TERMS]:
38
<PAGE> 39
ANNEX II TO
UNDERWRITING
AGREEMENT
Pursuant to Section 7(d) 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 and financial
statement schedules, 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
performed a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements included or incorporated by
reference in the Final Prospectus, as amended or supplemented or the
Registration Statement, 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
II-1
<PAGE> 40
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 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 and generally accepted accounting principles;
(B) any other income statement data and balance sheet items
annotated by the Representatives included or incorporated by
reference in the Final Prospectus as amended or supplemented do
not agree with the corresponding items in the audited consolidated
financial statements, notes thereto or financial statement
schedules, or other accounting information from which such data
and items were derived;
II-2
<PAGE> 41
(C) the unaudited financial statements which were not
included or incorporated by reference in the Final Prospectus as
amended or supplemented 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 in-
II-3
<PAGE> 42
come securities available for sale, consolidated equity
securities, consolidated investments or shareholder equity, or any
decrease in AIC's or ALIC's 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
II-4
<PAGE> 43
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.
II-5
<PAGE> 44
ANNEX III TO
UNDERWRITING
AGREEMENT
<TABLE>
<CAPTION>
PRINCIPAL SUBSIDIARIES JURISDICTION OF INCORPORATION
- ---------------------- -----------------------------
<S> <C>
Allstate Insurance Company Illinois
Allstate Life Insurance Company Illinois
</TABLE>
III-1
<PAGE> 1
EXHIBIT 1.2
[FORM OF UNDERWRITING AGREEMENT]
ALLSTATE FINANCING [III]
PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH IN THE
PREFERRED SECURITIES GUARANTEE BY
THE ALLSTATE CORPORATION
______________________
UNDERWRITING AGREEMENT
______________________
__________, ____
[Underwriters]
c/o [ ]
Ladies and Gentlemen:
From time to time Allstate Financing [III], a statutory business trust
formed under the laws of the State of Delaware (the "Trust"), and The Allstate
Corporation, a Delaware corporation (the "Guarantor" and, together with the
Trust, the "Offerors"), as Depositor of the Trust and as Guarantor, propose to
issue and sell certain of the Trust's preferred securities registered under the
Registration Statement referred to in Section 2(a). The Trust and the
Guarantor intend to enter into one or more Pricing Agreements (each a "Pricing
Agreement") in the form of Annex I hereto, with such additions and deletions as
the parties thereto may determine, and, subject to the terms and conditions
stated herein and therein, to issue and sell to the firms named in Schedule I
of the Pricing Agreement (such firms constituting the "Underwriters" with
respect to such Pricing Agreement and the Securities specified therein) the
numbers of _____% _______________ Preferred Securities (liquidation amount of
$_____ per preferred security) of the Trust ("Pre-
<PAGE> 2
ferred Securities") specified in Schedule II to the Pricing Agreement.
The Preferred Securities will be guaranteed by the Guarantor with respect
to distributions and payments upon liquidation, redemption and otherwise (the
"Preferred Securities Guarantee") pursuant to the Preferred Securities
Guarantee Agreement (the "Preferred Securities Guarantee Agreement"), dated as
of __________ ___, ____, between the Guarantor and State Street Bank and Trust
Company, as trustee (the "Guarantee Trustee"), and entitled to the benefits of
certain backup undertakings described in the Prospectus with respect to the
Company's agreement pursuant to the Supplemental Indenture (as defined herein)
to pay all expenses relating to administration of the Trust (the
"Undertakings"). The Preferred Securities and the related Preferred Securities
Guarantees are referred to herein as the "Securities."
The Offerors understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representatives (as defined herein)
deem advisable after the Pricing Agreement has been executed and delivered, and
the Declaration (as defined herein), the Indenture (as defined herein), and the
Preferred Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The entire
proceeds from the sale of the Securities will be combined with the entire
proceeds from the sale by the Trust to the Guarantor of its common securities
(the "Common Securities")[, as guaranteed by the Guarantor, to the extent set
forth in the Prospectus, with respect to distributions and payments upon
liquidation and redemption (the "Common Securities Guarantee" and together with
the Preferred Securities Guarantee, the "Guarantees") pursuant to the Common
Securities Guarantee Agreement (the "Common Securities Guarantee Agreement"
and, together with the Preferred Securities Guarantee Agreement, the "Guarantee
Agreements"), dated as of __________ ___, ____, by the Guarantor,] and will be
used by the Trust to purchase the $__________ of ____% subordinated debt
securities (the "Subordinated Debt Securities") issued by the Guarantor. The
Preferred Securities and the Common Securities will be issued pursuant to the
amended and restated declaration of trust of the Trust, dated as of __________
___, ____ (the "Declaration"), among the Guarantor, as Depositor, __________,
__________
2
<PAGE> 3
and __________, as regular trustees (the "Regular Trustees"), State Street Bank
and Trust Company, a Massachusetts trust company, as property trustee (the
"Property Trustee") and Delaware Trust Capital Management, Inc., as Delaware
trustee (the "Delaware Trustee" and, together with the Regular Trustees and the
Property Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Subordinated
Debt Securities will be issued pursuant to an indenture, dated as of __________
___, ____ (the "Base Indenture"), between the Guarantor and State Street Bank
and Trust Company, as trustee (the "Debt Trustee"), and a supplement to the Base
Indenture, dated as of __________ ___, ____ (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Guarantor and the Debt Trustee.
1.(a) Sales; Representatives. Particular sales of Securities may be made
from time to time to the Underwriters of such Securities, for whom the firms
designated as representatives of the Underwriters of such Securities in the
Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as the sole representative of the Underwriters and to Underwriters who
act without any firm being designated as their representative. This
Underwriting Agreement shall not be construed as an obligation of the Trust or
the Guarantor to sell any of the Securities or as an obligation of any of the
Underwriters to purchase any of the Securities.
(b) Pricing Agreements. The obligation of the Trust or the Guarantor to
issue and sell any of the Securities and the obligation of any of the
Underwriters to purchase any of the Securities shall be evidenced by the
Pricing Agreement with respect to the Securities specified therein. Such
Pricing Agreement shall specify the number of Preferred Securities, the initial
public offering price of such Preferred Securities, the purchase price to the
Underwriters of such Preferred Securities, the names of the Underwriters of
such Preferred Securities, the names of the Representatives of such
Underwriters and the number of such Preferred Securities to be purchased by
each Underwriter. In addition, such Pricing Agreement shall set forth the
3
<PAGE> 4
date, time and manner of delivery of such Preferred Securities and payment
therefor. Such Pricing Agreement shall also specify (in a manner consistent
with the Declaration and the Registration Statement and prospectus
with respect thereto), the principal terms of such Preferred Securities,
including the terms on which, and the terms of the securities into which, the
Preferred Securities will be exchangeable. A Pricing Agreement shall be in the
form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid
transmission device designed to produce a written record of communications
transmitted. The obligations of the Underwriters under this Agreement and each
Pricing Agreement shall be several and not joint.
2. Representations and Warranties. The Offerors jointly and severally
represent and warrant to, and agree with, each of the Underwriters that:
(a) The Offerors have filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 under the Securities
Act of 1933, as amended (the "Act") (the file number of which is set forth in
Schedule II to the Pricing Agreement), which has become effective, for the
registration under the Act of, inter alia, the Securities. The Offerors
propose 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
4
<PAGE> 5
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,
the Declaration and the Guarantee Agreements 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 Offerors make no representations or warranties as to (i) that
part of the Registration Statement which shall constitute the Statements of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the
Trustees (the "Form T-1s") 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
5
<PAGE> 6
by any Underwriter specifically for use in the Registration Statement and the
Final Prospectus.
(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 Common Securities have been duly authorized by the Declaration
and, when issued and delivered by the Trust to [the Guarantor] against payment
therefor as described in the Registration Statement and the Final Prospectus,
will be validly issued and (subject to the terms of the Declaration) fully paid
and non-assessable undivided beneficial interests in the assets of the Trust;
the issuance of the Common Securities is not subject to preemptive or other
similar rights; and at the Closing Time all of the issued and outstanding
Common Securities of the Trust will be directly owned by [the Guarantor] free
and clear of any security interest, mortgage, pledge, lien, encumbrance, claim
or equity.
(e) The Declaration has been duly authorized by the Guarantor and, at the
Closing Time, will have been duly executed and delivered by the Guarantor and
the Regular Trustees, and assuming due authorization, execution and delivery of
the Declaration by the Property Trustee and the Delaware Trustee, the
Declaration will, at the Closing Time, be a valid and binding obligation of the
Guarantor and the Regular Trustees, enforceable against the Guarantor and the
Regular Trustees in accordance with its terms, except to the extent that
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors rights generally or by
general principles of equity (the "Bankruptcy Exceptions"); and at the Closing
Time, the Declaration will have been duly qualified under the Trust Indenture
Act.
(f) Each of the Guarantee Agreements has been duly authorized by the
Guarantor and, when validly executed and delivered by the Guarantor, and, in
the case of the Preferred Securities Guarantee Agreement, assuming due
authorization, execution and delivery of the Preferred Securities Guarantee
Agreement by the Guarantee Trustee, will constitute a valid and binding
obligation
6
<PAGE> 7
of the Guarantor, enforceable against the Guarantor in accordance with its terms
except to the extent that enforcement thereof may be limited by the Bankruptcy
Exceptions; and the Preferred Securities Guarantee Agreement, at the Closing
Time, will have been duly qualified under the Trust Indenture Act.
(g) The Preferred Securities have been duly authorized by the Declaration
and, when issued and delivered pursuant to this Agreement against payment of
the consideration set forth in the Pricing Agreement, will be validly issued
and (subject to the terms of the Declaration) fully paid and non-assessable
undivided beneficial interests in the Trust and will be entitled to the
benefits of the Declaration; the issuance of the Preferred Securities is not
subject to preemptive or other similar rights; and (subject to the terms of the
Declaration) holders of Preferred Securities will be entitled to the same
limitation of personal liability under Delaware law as extended to stockholders
of private corporations for profit.
(h) The Indenture has been duly authorized by the Guarantor and, when
validly executed and delivered by the Guarantor, will constitute a valid and
binding agreement of the Guarantor, enforceable against the Guarantor in
accordance with its terms except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions; and at the Closing Time, the Indenture
will have been duly qualified under the Trust Indenture Act.
(i) The Subordinated Debt Securities have been duly authorized by the
Guarantor and, at the Closing Time, will have been duly executed by the
Guarantor and, when authenticated in the manner provided for in the Indenture
and delivered against payment therefor as described in the Final Prospectus,
will constitute valid and binding obligations of the Guarantor, enforceable
against the Guarantor in accordance with their terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions, and will be in
the form contemplated by, and entitled to the benefits of, the Indenture.
(j) Each of the Regular Trustees of the Trust is an employee of the
Guarantor and has been duly
7
<PAGE> 8
authorized by the Guarantor to execute and deliver the Declaration; the
Declaration has been duly executed and delivered by the Regular Trustees and is
a valid and binding obligation of each Regular Trustee, enforceable against such
Regular Trustee in accordance with its terms except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions.
(k) The issue and sale of the Preferred Securities pursuant to the Pricing
Agreement, and compliance by the Offerors with all of the provisions of the
Securities, this Agreement and the Pricing Agreement, the Declaration, the
Indenture, the Subordinated Debt Securities, the Guarantee Agreements and the
Guarantees, 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 Trust, the Guarantor or any of the subsidiaries
listed in Annex III hereto (each, a "Principal Subsidiary") is a party or by
which the Trust, the Guarantor or any of the Principal Subsidiaries is bound or
to which any of the property or assets of the Trust, the Guarantor or any of the
Principal Subsidiaries is subject, nor will such action result in any violation
of the provisions of the Declaration or Certificate of Trust of the Trust or the
Certificate of Incorporation or By-laws of the Guarantor or any of the 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 Trust, the Guarantor or any of the 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 a
material adverse effect on the Trust or the Guarantor 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
8
<PAGE> 9
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 Trust or
the Guarantor and its subsidiaries considered as a whole.
3. Terms of Sale. Upon the execution of the Pricing Agreement and
authorization by the Representatives of the release of the Preferred
Securities, the several Underwriters propose to offer such Preferred Securities
for sale upon the terms and conditions set forth in the Final Prospectus as
amended or supplemented.
4. Delivery of Preferred Securities. Preferred Securities to be
purchased by each Underwriter pursuant to the Pricing Agreement, in definitive
form to the extent practicable, and in such authorized denominations and
registered in such names as the Representatives may request upon at least
forty-eight hours' prior notice to the Trust and the Guarantor, shall be
delivered by or on behalf of the Trust to the Representatives for the account
of such Underwriter, against payment by such Underwriter or on its behalf of
the purchase price therefor in the funds specified in the Pricing Agreement,
all at the place and time and date specified in the Pricing Agreement or at
such other place and time and date as the Representatives and the Trust and the
Guarantor may agree upon in writing, such time and date being herein called the
"Time of Delivery" for such Securities.
5. Offeror Covenants. The Offerors jointly and severally agree with each
of the Underwriters as follows:
(a) (i) To prepare the Final Prospectus as amended and supplemented in
relation to the Preferred 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 of the
Pricing Agreement and prior to the Time of Delivery for such Preferred
Securities unless the Representatives for such Preferred Securities shall have
had a reasonable opportunity to review and comment upon any such amendment or
supplement prior to any filing thereof; (iii) to
9
<PAGE> 10
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 Guarantor 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 such Preferred
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 such Preferred 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 such Preferred Securities (and the Preferred
Securities Guarantee) and the Subordinated Debt 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 such Preferred Securities,
provided that in connection therewith none of the Offerors shall 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
10
<PAGE> 11
prospectus is required at any time in connection with the offering or sale of
such Preferred 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 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 which will correct such
statement or omission or effect such compliance;
(d) The Trust will 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 later filed of the Registration Statements (as defined in
Rule 158(c)), an earnings statement of the Guarantor and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations thereunder (including, at the option of the Guarantor,
Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for any Preferred Securities and continuing to and including the latter of (i)
the termination of trading restrictions for Preferred Securities, as notified
to the Guarantor by the Representatives or their counsel and (ii) the Time of
Delivery for such Preferred Securities, not to offer, sell, contract to sell or
otherwise dispose of any Preferred Securities, any security convertible into or
exchangeable into or exercisable for Preferred Securities or the Subordinated
Debt Securities or any debt securities substantially similar to the
Subordinated Debt Securities or equity securities substantially similar to the
Preferred Securities (except for the Subordinated Debt Securities and the
Preferred Securities issued pursuant
11
<PAGE> 12
to this Agreement), without the prior written consent of the Representatives,
which consent shall not be unreasonably withheld.
6. Fees and Expenses. The Guarantor covenants and agrees with the
several Underwriters that the Guarantor will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Guarantor's counsel
and accountants in connection with the registration of the Preferred
Securities, the Preferred Securities Guarantee and the Subordinated Debt
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 Pricing Agreement, any Blue Sky Survey and any Legal
Investment Memoranda; (iii) all reasonable expenses in connection with the
qualification of the Preferred Securities, the Preferred Securities Guarantee
and the Subordinated Debt Securities for offering and sale under state
securities and insurance securities laws as provided in Section 5(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.; (v)
any fees charged by securities rating services for rating the Preferred
Securities and Subordinated Debt Securities; (vi) the cost of preparing the
Preferred Securities; (vii) the fees and expenses of the Debt Trustee,
including the fees and disbursements of counsel for the Debt Trustee in
connection with the Indenture and the Subordinated Debt Securities; (viii) the
fees and expenses of the Property Trustee, and the Guarantee Trustee, including
the fees and disbursements of counsel for the Property Trustee in connection
with the Declaration and the Certificate of Trust; and (ix) 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 8 and Section 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
of their counsel, transfer taxes on resale
12
<PAGE> 13
of any of the Preferred Securities by them, and any advertising expenses
connected with any offers they may make.
7. Conditions to Underwriters' Obligations. The obligations of the
Underwriters hereunder and under the Pricing Agreement shall be subject to the
condition that all representations and warranties of the Offerors herein are,
at and as of the Time of Delivery, true and correct, the condition that the
Offerors shall have performed all of their respective 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
Preferred 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 5(c) 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) [ ], counsel for the Guarantor, shall have furnished to you
their written opinion, dated as of Time of Delivery, in form and substance
reasonably satisfactory to you, to the effect that:
(i) The Guarantor 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;
13
<PAGE> 14
business as described in the Final Prospectus as amended or supplemented;
(ii) The issue and sale of the Preferred Securities and
the performance by the Offerors of their respective obligations
under this Agreement, the Pricing Agreement, the Declaration,
the Preferred Securities, the Common Securities, the Indenture,
the Subordinated Debt Securities, the Guarantee Agreements and
the Guarantees, and the consummation of the transactions
contemplated herein and therein 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 agreement or instrument relating to the
Trust or the Guarantor or any of its subsidiaries set forth on
Schedule A attached hereto [Schedule A to be a list of material
agreements]; nor will any such action result in any violation of
the provisions of the Certificate of Incorporation or the By-Laws
of the Guarantor or the Declaration or the Certificate of Trust of
the Trust or any applicable law or statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Guarantor, 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 such counsel's opinion, are
normally applicable to transactions of the type contemplated by
this Agreement, and provided further, that no opinion need be
given with respect to (i) the Act, the Exchange Act, the Trust
Indenture Act, the rules and regulations issued pursuant to each
such act, or any order, rule or regulation made or established by
any insurance official or regulatory authority or the National
Association of Securities Dealers, Inc., (ii) any state securities
or Blue Sky laws in connection with the purchase and distribution
of the Preferred
14
<PAGE> 15
Securities by the Underwriters or (iii) conflicts, breaches or violations
which individually and in the aggregate both are not material to the
Trust or the Guarantor and its subsidiaries taken as a whole and would
not have a material adverse effect on the sale or ownership of the
Preferred Securities.
(iii) No consent, approval, authorization, order, registration or
qualification of or with any United Sates court or governmental agency or
body is required for the issuance and sale of the Common Securities or
the offering of the Preferred Securities, the Subordinated Debt
Securities or the Guarantees or the consummation by the Company of the
transactions contemplated by this Agreement, except that we express no
opinion with respect to such consents, approvals, authorizations, orders,
registrations or qualifications (i) 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 (ii) as may be
required under state securities or Blue Sky laws, (iii) the absence of
which individually or in the aggregate both are not material to the
Guarantor and its subsidiaries taken as a whole and would not have a
material adverse effect on the sale or ownership of the Preferred
Securities or (iv) as may be required under foreign laws in connection
with the purchase and distribution of the Preferred Securities by any
international managers; provided, that the foregoing opinion is limited
to those consents, approvals, authorizations, orders, registrations and
qualifications under laws of the United States of America, the State of
Delaware and the State of Illinois which, in our experience, are normally
applicable to transactions of the type contemplated by this Agreement;
(iv) This Agreement and the Pricing Agreement have been
duly authorized,
15
<PAGE> 16
executed and delivered by each of the Trust and the Guarantor;
(v) The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware
Act; all filings required under the laws of the State of
Delaware with respect to the formation and valid existence of
the Trust as a business trust have been made; the Trust has all
necessary trust power and authority to own property and to conduct
its business as described in the Registration Statement and the
Final Prospectus and to enter into and perform its obligations
under this Agreement, the Pricing Agreement, the Preferred
Securities and the Common Securities;
(vi) The Common Securities have been duly authorized for
issuance and, when issued, delivered and paid for in accordance
with the Declaration and as described in the Prospectus,
will be validly issued and fully paid and non-assessable
undivided beneficial interests in the assets of the Trust, and
the issuance of the Common Securities is not subject to
preemptive or other similar rights;
(vii) The Preferred Securities have been duly authorized
for issuance and, when issued, delivered and paid for in
accordance with the Declaration and this Agreement, will be
validly issued, fully paid and non-assessable undivided
beneficial interests in the assets of the Trust; the holders of
the Preferred Securities will be entitled to the same limitation
of personal liability under Delaware law as is extended to
stockholders of private corporations for profit; and the issu-
16
<PAGE> 17
ance of the Preferred Securities is not subject to preemptive or other
similar rights. We bring to your attention that the Preferred Securities
holders may be obligated, pursuant to the Declaration, to (a) provide
indemnity and/or security in connection with and pay taxes or
governmental charges arising from transfers of Preferred Securities and
the issuance of replacement Preferred Securities, and (b) provide
security and indemnity in connection with requests of or directions to
the Property Trustee to exercise its rights and powers under the
Declaration; and the Declaration has been duly qualified under the Trust
Indenture Act; and
(viii) 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 Guarantor and its accountants at
which contents of the Registration Statement and Final
Prospectus as amended or supplemented and related matters
17
<PAGE> 18
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, 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
Guarantor prior to such Time of Delivery (other than the financial
statements and the financial, accounting and statistical data and related
schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement including the
Form T-1s, 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, the Final Prospectus as amended
or supplemented or any further amendment or supplement thereto made by
the Guarantor prior to the Time of Delivery (other than the financial
statements and financial, accounting and statistical data and related
schedules incorporated by reference or included therein or excluded
therefrom, or the exhibits to the Registration Statement including the
Form T-1s, 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.
(c) Robert W. Pike, Vice President, Secretary and General Counsel of the
Guarantor, shall have furnished to you his written opinion, dated each
18
<PAGE> 19
Time of Delivery, in form and substance reasonably satisfactory to you, to the
effect that:
(i) Each Principal Subsidiary has been duly incorporated
and is validly existing as an insurance corporation under the
laws of its jurisdiction of incorporation;
(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 Guarantor;
(iii) Each Principal Subsidiary is duly licensed or
authorized as an insurer or reinsurer in each 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 Guarantor and its subsidiaries
considered as a whole;
(iv) The Guarantor 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
Guarantor and its subsidiaries considered as a whole;
19
<PAGE> 20
(v) None of the Guarantor 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 Guarantor or
any Principal Subsidiary in any case where it could be reasonably
expected that (x) the Guarantor 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
Guarantor and its subsidiaries, considered as a whole;
(vi) 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 jurisdiction which are applicable to such Principal
Subsidiary,
20
<PAGE> 21
except for such failures which do not have a material adverse effect on
the financial condition, business or properties of the Guarantor and its
subsidiaries taken as a whole;
(vii) 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 Guarantor or any of its subsidiaries is a party or to which
any property of the Guarantor or any of its subsidiaries is the
subject which, if determined adversely to the Guarantor 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 Guarantor and
its subsidiaries considered as a whole;
(viii) The issue and sale of the Preferred Securities, and the
performance by the Offerors of their respective obligations under the
Preferred Securities, this Agreement, the Pricing Agreement, the
Declaration, the Common Securities, the Indenture, the Subordinated Debt
Securities, the Guarantee Agreements and the Guarantees, and the
consummation of the transactions contemplated herein and therein will not
result in any violation of any order, rule or regulation known to such
counsel of any insurance regulatory authority having jurisdiction over
the Guarantor or any of its subsidiaries or any of their properties which
are normally applicable to transactions of the type contemplated by this
Agreement, other than such breaches, conflicts, violations or defaults
which, individually or in the aggregate, would not have a material
adverse effect on the financial condition, business or properties of
21
<PAGE> 22
the Guarantor and its subsidiaries considered as a whole;
(ix) To the best of such counsel's knowledge, the Trust
and the Guarantor 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 of the Preferred Securities, 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 Guarantor and its
subsidiaries considered as a whole;
22
<PAGE> 23
(x) Each of the Guarantee Agreements has been duly
authorized, executed and delivered by the Guarantor; the
Preferred Securities Guarantee Agreement, assuming it is duly
authorized, executed, and delivered by the Guarantee Trustee,
constitutes a valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms,
except to the extent that enforcement thereof may be limited by
Bankruptcy Exceptions; and the Preferred Securities Guarantee
Agreement has been duly qualified under the Trust Indenture Act;
(xi) The Indenture has been duly executed and delivered by
the Guarantor and, assuming due authorization, execution, and
delivery thereof by the Debt Trustee, is a valid and binding
obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions,
and the Indenture has been duly qualified under the Trust
Indenture Act;
(xii) The Subordinated Debt Securities are in the form
contemplated by the Indenture, have been duly authorized,
executed and delivered by the Guarantor and, when authenticated
by the Debt Trustee in the manner provided for in the Indenture
and delivered against payment therefor, will constitute valid
and binding obligations of the Guarantor enforceable against the
Guarantor in accordance with their terms, except to the extent
that enforcement thereof may be limited by the Bankruptcy
Exceptions;
(xiii) The Declaration has been duly authorized, executed
and delivered by the Guarantor and each of the Regular Trustees
and constitutes a valid and binding obligation of the Guarantor
and each of the Regular Trustees, enforceable against the
Guarantor and each of the Regular Trustees in accordance with
its terms, except to the extent that the enforce-
23
<PAGE> 24
ment thereof may be limited by the Bankruptcy Exceptions;
(xiv) As general counsel to the Guarantor, such counsel
reviewed the Registration Statement and Final Prospectus as
amended or supplemented and participated in various discussions
with representatives of the Underwriters and of the Guarantor
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 in the first
sentence of this clause (xiv), such counsel confirms
(A) 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), appeared 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,
(B) that 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 Offerors 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 in the descriptions of Preferred
24
<PAGE> 25
Securities, Preferred Securities Guarantees, Subordinated Debt Securities
and underwriting matters 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;
Such counsel shall be entitled to rely in respect of the above opinions
upon opinions of local or in-house counsel and in respect of matters of
fact upon certificates of officers of the Guarantor 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).
25
<PAGE> 26
(d) [ ], counsel of State Street Bank and Trust Company, as
Property Trustee under the Declaration, and Guarantee Trustee under the
Preferred Securities Guarantee Agreements, shall have furnished to you their
written opinion, dated as of the Time of Delivery, in form and substance
reasonably satisfactory to you, to the effect that:
(i) State Street Bank and Trust Company is a Massachusetts
trust company with trust powers, duly organized, validly
existing and in good standing under the laws of the Commonwealth
of Massachusetts with all necessary power and authority to
execute and deliver, and to carry out and perform its
obligations under the terms of the Declaration and the Preferred
Securities Guarantee Agreement;
(ii) The execution, delivery and performance by the
Property Trustee of the Declaration and the execution, delivery
and performance by the Guarantee Trustee of the Preferred
Securities Guarantee Agreement have been duly authorized by all
necessary corporate
26
<PAGE> 27
action on the part of the Property Trustee, in the case of the
Declaration, and the Guarantee Trustee, in the case of the Preferred
Securities Guarantee Agreement. The Declaration and the Preferred
Securities Guarantee Agreement have been duly executed and delivered by
the Property Trustee, in the case of the Declaration, and the Guarantee
Trustee, in the case of the Preferred Securities Guarantee Agreement, and
constitute the legal, valid and binding obligations of the Property
Trustee, in the case of the Declaration, and the Guarantee Trustee, in
the case of the Preferred Securities Guarantee Agreement, enforceable
against the Property Trustee, in the case of the Declaration, and the
Guarantee Trustee, in the case of the Preferred Securities Guarantee
Agreement, in accordance with their terms, except as enforcement thereof
may be limited by the Bankruptcy Exceptions;
(iii) The execution, delivery and performance of the
Declaration and the Preferred Securities Guarantee Agreement by
the Property Trustee, in the case of the Declaration, and the
Guarantee Trustee, in the case of the Preferred Securities
Guarantee Agreement, does not conflict with or constitute a
breach of the Articles of Organization or Bylaws of the Property
Trustee, in the case of the Declaration, or the Guarantee
Trustee, in the case of the Preferred Securities Guarantee
Agreement; and
(iv) No consent, approval or authorization of, or
registration with or notice to, any Massachusetts or federal
banking authority is required for the execution, delivery or
performance by the Property Trustee of the Declaration or by the
Guarantee Trustee of the Preferred Securities Guarantee
Agreement.
(e) [ ], counsel of Delaware Trust Capital Management, Inc., as
Delaware Trustee under the Declaration, shall have furnished to you their
written opinion, dated as of the Time of Delivery, in form
27
<PAGE> 28
and substance reasonably satisfactory to you, to the effect that:
(i) Delaware Trust Capital Management, Inc. is a Delaware
banking corporation with trust powers, duly organized, validly
existing and in good standing under the laws of the State of
Delaware with all necessary power and authority to execute and
deliver, and to carry out and perform its obligations under the
terms and the Declaration;
(ii) The execution, delivery and performance by the
Delaware Trustee of the Declaration has been duly authorized by
all necessary corporate action on the part of the Delaware
Trustee. The Declaration has been duly executed and delivered
by the Delaware Trustee and constitutes the legal, valid and
binding obligations of the Delaware Trustee, enforceable against
the Delaware Trustee, in accordance with its terms, except as
enforcement thereof may be limited by the Bankruptcy Exceptions;
(iii) The execution, delivery and performance of the
Declaration by the Delaware Trustee does not conflict with or
constitute a breach of the Articles of Organization or Bylaws of
the Delaware Trustee; and
(iv) No consent, approval or authorization of, or
registration with or notice to, any banking or trust authority
of the State of Delaware or federal banking authority governing
the banking and trust powers of the Delaware Trustee is required
for the execution, delivery or performance by the Delaware
Trustee of the Declaration.
(f) The opinion of [ ], special tax counsel to the Guarantor
and the Trust, generally to the effect that:
(i) Under current law, the Trust will be classified for
United States federal income tax purposes as a grantor trust
28
<PAGE> 29
and not as an association taxable as a corporation; accordingly,
for United States federal income tax purposes, each holder of
Preferred Securities generally will be considered the owner of
an undivided interest in the Subordinated Debt Securities, and
each holder will be required to include in its gross income any
original issue discount accrued with respect to its allocable
share of the Subordinated Debt Securities;
(ii) Under current law the Subordinated Debt Securities will be
classified for United States federal income tax purposes as indebtedness
of the Guarantor; and
(iii) The discussion set forth in the Final Prospectus under the
heading "United States Federal Income Taxation" is a fair and accurate
summary of the matters addressed therein, based upon current law and the
assumptions stated or referred to therein.
Such opinion may be conditioned on, among other things, the initial and
continuing accuracy of the facts, financial and other information, covenants and
representations set forth in certificates of officers of the Guarantor and the
Trust and other documents deemed necessary for such opinion.
(g) At or before the Time of Delivery, Deloitte & Touche LLP shall have
furnished to the Representatives a letter, to the effect set forth in Annex II
hereto.
(h) (i) Neither the Guarantor nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Final Prospectus as
29
<PAGE> 30
amended or supplemented any material adverse change in the financial condition,
business or properties of the Guarantor and its subsidiaries considered as a
whole, otherwise than as set forth or contemplated in the Final Prospectus as
amended or supplemented (and other than a catastrophe not meeting the threshold
contemplated by (w) below), and (ii) since the respective dates as of which
information is given in the Final Prospectus as amended or supplemented there
shall not have been (w) any catastrophe or any impending catastrophe which, in
the Company's judgment, is highly probable to result in gross underwriting
losses in excess of $[500 million] pursuant to insurance coverage written by the
Guarantor's subsidiaries, (x) any material addition, or any development
involving a prospective material addition, to either the Guarantor's
consolidated reserve for property-liability insurance claims and claims expense
or the Guarantor's consolidated reserve for life insurance policy benefits or
(y) any material increase in the consolidated long-term debt of the Guarantor.
(i) On or after the date of the Pricing Agreement (i) no downgrading
shall have occurred in the rating accorded the Guarantor's debt securities or
financial strength or claims paying ability by any of Moody's 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
Guarantor'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 Guarantor) so material and adverse as to
make it impracticable or inadvisable to proceed with the pubic offering or the
delivery of the Securities on the terms and in the manner contemplated in the
Final Prospectus as amended or supplemented;
(j) On or after the date of the Pricing Agreement 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 material outbreak or
escalation of hostilities involving the United States or
30
<PAGE> 31
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; and
(k) The Guarantor shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery certificates of officers of the
Guarantor reasonably satisfactory to the Representatives as to the accuracy of
the representations and warranties of the Guarantor herein at and as of such
Time of Delivery, as to the performance by the Guarantor of all of its
obligations hereunder to be performed at or prior to such Time of Delivery, as
to the matters set forth in subsections (a) and (h) of this Section and as to
such other matters as the Representatives may reasonably request.
8.(a) Indemnification and Contribution. The Offerors 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 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 Offerors 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 sup-
31
<PAGE> 32
plemented 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 Offerors by any Underwriter of Securities through
the Representatives expressly for use in the Final Prospectus as amended or
supplemented relating to such Securities and, provided, further, that the
Offerors 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 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, if the Guarantor 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 Offerors
against any losses, claims, damages or liabilities to which the Offerors 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 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, 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
32
<PAGE> 33
relating to the Securities, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Offerors by such
Underwriter through the Representatives expressly for use therein; and will
reimburse the Offerors for any legal or other expenses reasonably incurred by
the Offerors 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 failure to promptly notify the
indemnifying party shall not relieve it from any liability which it may have
to any indemnified party except to the extent it is prejudiced thereby. In
case any such action shall be brought against any indemnified party, the
indemnifying party shall be entitled to participate therein and, to the
extent that it shall wish, jointly, with any other indemnifying party
similar 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. Without the
prior written consent of the Indemnifying Party (not to be unreasonably
withheld), no Indemnified Party shall settle or compromise any action as to
which it has sought or will seek, indemnification hereunder. Without the
prior written consent of each Indemnified Party (not to be unreasonably
withheld), no Indemnifying Party shall settle or compromise any action as to
which such Indemnified Party has sought indemnification hereunder.
33
<PAGE> 34
(d) If the indemnification provided for in this Section 8 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 Offerors on the one hand and the Underwriters of the Securities on the
other from the offering of the Securities to which any such loss, claim, damage
or liability (or action in respect thereof) relates. 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
fault of the Offerors on the one hand and the Underwriters of the Securities 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 Offerors on the one hand and such 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 Offerors 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 Prospectus relating to
such Securities. 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 Offerors on the one hand or such Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such
34
<PAGE> 35
statement or omission. With respect to any such 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 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
Offerors had previously furnished copies thereof to such Underwriter. The
Offerors 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 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 of Securities in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations with respect to such
Securities and not joint.
(e) The obligations of the Offerors under this Section 8 shall be in
addition to any liability which the Offerors 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
35
<PAGE> 36
this Section 8 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 Guarantor (including any person
who, with his consent, is named in the Registration Statement as about to become
a director of the Guarantor), to each trustee of the Trust and to each person,
if any, who controls an Offeror within the meaning of the Act.
9.(a) Defaulting Underwriters. If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase under the
Pricing Agreement, the Representatives may in their discretion arrange for
themselves or another party or other parties to purchase the Securities on the
terms contained herein. If within thirty-six hours after such default by any
Underwriter the Representatives do not arrange for the purchase of such
Securities, then the Offerors shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to the Representatives to purchase such Securities on such terms.
In the event that, within the respective prescribed periods, the Representatives
notify the Offerors that the Representatives have so arranged for the purchase
of such Securities, or the Offerors notify the Representatives that they have so
arranged for the purchase of such Securities, the Representatives or the
Offerors shall have the right to postpone the Time of Delivery for such
Securities for a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or the Final
Prospectus as amended or supplemented, or in any other documents or
arrangements, and the Offerors agree to file promptly any amendments to the
Registration Statement or the Final Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement.
(b) If, after giving effect to any arrangements for the purchase of the
Securities of any defaulting Underwriter or Underwriters by the Representatives
and the Offerors as provided in subsection (a)
36
<PAGE> 37
above, the aggregate principal amount of such Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Securities, then the Offerors shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Securities which
such Underwriter agreed to purchase under the Pricing Agreement and, in
addition, to require each nondefaulting Underwriter to purchase its pro rata
share (based on the principal amount of Securities which such Underwriter agreed
to purchase under such Pricing Agreement;) of the Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Securities of a defaulting Underwriter or Underwriters by the Representatives
and the Offerors as provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds one-eleventh of the
aggregate principal amount of Securities, as referred to in subsection (b)
above, or if the Offerors shall not exercise the right described in subsection
(b) above to require non-defaulting Underwriters to purchase Securities of a
defaulting Underwriter or Underwriters, then the Pricing Agreement shall
thereupon terminate, without liability on the part of any nondefaulting
Underwriter or the Offerors, except for the expenses to be borne by the
Guarantor and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. Survival. The respective indemnities, agreements, representations,
warranties and other statements of the Offerors 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 Offerors or any officer or director or
controlling person of the Offerors and shall survive delivery of and payment
for the Securities.
37
<PAGE> 38
11. Effect of Termination of Pricing Agreement or Nondelivery of
Securities. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Offerors shall not then be under any liability to any Underwriter
with respect to the Securities except as provided in Section 6 and Section 8
hereof; but, if for any other reason, Securities are not delivered by or on
behalf of the Offerors as provided herein, the Guarantor 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 Offerors shall then be
under no further liability to any Underwriter in respect of such Securities
except as provided in Section 6 and Section 8 hereof.
12. Reliance Upon Representatives. In all dealings hereunder, the
Representatives shall act on behalf of the Underwriters of Securities 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 in the Pricing
Agreement.
13. 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 transmission to the address of the Representatives as
set forth in the Pricing Agreement; if to the Guarantor and the Trust, shall be
delivered or sent by mail, telex or facsimile transmission to their respective
addresses set forth in the Registration Statement; provided, however, that any
notice to an Underwriter pursuant to Section 8(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, which address will be supplied to the Offerors by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof.
14. Successors and Assigns. This Agreement and each Pricing Agreement
shall be binding upon, and
38
<PAGE> 39
inure solely to the benefit of, the Underwriters, the Offerors, and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Guarantor, the trustees of the Trust and each person who controls an Offeror 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 or any such Pricing Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed a
successor or assign by reason merely of such purchase.
15. Time; "Business Day." Time shall be of the essence of each Pricing
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
16. GOVERNING LAW. THIS AGREEMENT AND EACH PRICING AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
17. Counterparts. This Agreement and each Pricing 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.
39
<PAGE> 40
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: ______________________________
Name:
Title:
ALLSTATE FINANCING [III]
By: ______________________________
Name:
Title:
Accepted as of the date hereof:
[Underwriters]
40
<PAGE> 41
ANNEX I TO
UNDERWRITING
AGREEMENT
PRICING AGREEMENT
_________, ____
[ ]
As representatives of the
several Underwriters
named in Schedule I hereto
c/o [ ]
Ladies and Gentlemen:
Allstate Financing [III], a statutory business trust formed under the laws
of the State of Delaware (the "Trust"), and The Allstate Corporation, a
Delaware corporation (the "Guarantor" and, together with the Trust, the
Offerors"), propose, subject to the terms and conditions stated herein and in
the Underwriting Agreement, dated ___________, ____ (the "Underwriting
Agreement"), among the Offerors on the one hand and
_________________________________________________________ on the other hand, to
issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities specified in Schedule II hereto (the
"Securities"). Each of the provisions of the Underwriting Agreement is
incorporated herein by reference in its entirety, and shall be deemed to be a
part of this Agreement to the same extent as if such provisions had been set
forth in full herein; and each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Pricing
Agreement, except that each representation and warranty which refers to the
Final Prospectus in Section 2 of the Underwriting Agreement shall be deemed to
be a representation or warranty as of the date of the Underwriting Agreement in
relation to the Final Prospectus (as therein defined) and also a representation
and warranty as of the date of this Pricing Agreement in relation to the Final
Prospectus as amended or supplemented relating to the Securities which are the
subject of this Pricing Agreement. Each
I-1
<PAGE> 42
reference to the Representatives herein and in the provisions of the
Underwriting Agreement so incorporated by reference shall be deemed to refer to
you. Unless otherwise defined herein, terms defined in the Underwriting
Agreement are used herein as therein defined. The Representatives designated to
act on behalf of the Representatives and on behalf of each of the Underwriters
of the Securities pursuant to Section ___ of the Underwriting Agreement and the
address of the Representatives referred to in such Section ___ are set forth at
the end of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the Final
Prospectus, as the case may be, relating to the Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the
Underwriting Agreement incorporated herein by reference, the Offerors agree to
sell to each of the Underwriters, and each of the Underwriters agrees,
severally and not jointly, to purchase from the Trust, at the time and place
and at the purchase price to the Underwriters set forth in Schedule II hereto,
the number of Securities set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof, and upon acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof, including the provisions of the Underwriting Agreement incorporated
herein by reference, shall constitute a binding agreement among each of the
Underwriters and the Offerors. It is understood that your acceptance of this
letter on behalf of each of the Underwriters is or will be pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Offerors for examination upon request, but
without warranty on the part of
I-2
<PAGE> 43
the Representatives as to the authority of the signers thereof.
Very truly yours,
THE ALLSTATE CORPORATION
By: _______________________________
Name:
Title:
ALLSTATE FINANCING [III]
By: ________________________________
Name:
Title:
Accepted as of the date hereof:
[ ]
On behalf of each of the Underwriters
I-3
<PAGE> 44
SCHEDULE I TO ANNEX I
Number
of
Securities to
Underwriters Be Purchased
- ------------ -------------
_______________________ . . . . . . . .
_______________________ . . . . . . . .
_______________________ . . . . . . . .
_______________________ . . . . . . . .
[Names of Underwriters]
Total . . . . . . . . . ------------
I-4
<PAGE> 45
SCHEDULE II TO ANNEX I
UNDERWRITING AGREEMENT DATED ______________, ____
REGISTRATION STATEMENT NO. __________
TITLE, PURCHASE PRICE AND DESCRIPTION OF SECURITIES
Title: _____ % _____________________ Preferred Securities (" ")
(Liquidation Amount of $Per Security)
Number:
Price to Public:
Purchase Price per Security to be Paid by Underwriters:
Compensation Per Security to be Paid by the Guarantor to the
Underwriters:
Other Provisions:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Representatives:
Address for Notices, etc.:
I-5
<PAGE> 46
ANNEX II TO
UNDERWRITING
AGREEMENT
Pursuant to Section 7(g) 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 Guarantor and its subsidiaries within the meaning
of the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements and financial
statement schedules, 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
performed a review in accordance with standards established by the
American Institute of Certified Public Accountants of the unaudited
consolidated interim financial statements included or incorporated by
reference in the Final Prospectus, as amended or supplemented, or the
Registration Statement, 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 finan-
II-1
<PAGE> 47
cial statements and other information referred to below, a reading of the
latest available interim financial statements of the Guarantor and its
subsidiaries, inspection of the minute books of the Guarantor 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 Guarantor 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 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 and
generally accepted accounting principles;
(B) any other income statement data and
balance sheet items annotated by the Representatives
included or incorporated by reference in the
Final Prospectus as amended or supplemented
do not agree with the corresponding items in
the audited consolidated financial statements,
notes thereto or financial statement schedules,
or other accounting information from which such
data and items were derived;
II-2
<PAGE> 48
(C) the unaudited financial statements
which were not included or incorporated by
reference in the Final Prospectus as amended
or supplemented 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
II-3
<PAGE> 49
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 Guarantor
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 ALIC's 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
II-4
<PAGE> 50
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 Guarantor 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
Guarantor and its subsidiaries and have found them to be in
agreement.
II-5
<PAGE> 51
ANNEX III TO
UNDERWRITING
AGREEMENT
<TABLE>
<CAPTION>
PRINCIPAL JURISDICTION
SUBSIDIARIES OF INCORPORATION
---------------------------------- ----------------
<S> <C>
Allstate Insurance Company ....... Illinois
Allstate Life Insurance Company .. Illinois
</TABLE>
III-1
<PAGE> 1
EXHIBIT 4.4A
[FORM OF SUPPLEMENTAL INDENTURE]
====================================
[FIRST] SUPPLEMENTAL INDENTURE
Dated as of ,
------- --- -----
between
THE ALLSTATE CORPORATION
and
STATE STREET BANK AND TRUST COMPANY,
as Trustee under the Indenture for
Subordinated Debt Securities,
Dated as of ,
------- --- -----
=====================================
<PAGE> 2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms . . . . . . . . . . . . . 2
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount . . . . . . . 3
SECTION 2.2. Maturity . . . . . . . . . . . . . . . . . . . 3
SECTION 2.3. Form and Payment . . . . . . . . . . . . . . . 3
SECTION 2.4. Global Debenture . . . . . . . . . . . . . . . 4
SECTION 2.5. Interest . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption . . . . . . . . . . . 6
SECTION 3.2. Optional Redemption by Company . . . . . . . . 7
SECTION 3.3. No Sinking Fund . . . . . . . . . . . . . . . . 8
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period . . . . . 8
SECTION 4.2. Notice of Extension . . . . . . . . . . . . . . 9
SECTION 4.3. Limitation on Dividends . . . . . . . . . . . . 9
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses . . . . . . . . . . . . . . 10
SECTION 5.2. Payment Upon Resignation or Removal . . . . . . 11
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange . . . . . . . . . . . . 11
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture . . . . . . . . . . . . . . . 11
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures . . . . . . . . . 19
i
<PAGE> 3
Page
----
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture . . . . . . . . . . . 19
SECTION 9.2. Trustee Not Responsible for Recitals . . . . . 19
SECTION 9.3. Governing Law . . . . . . . . . . . . . . . . . 19
SECTION 9.4. Separability . . . . . . . . . . . . . . . . . 19
SECTION 9.5. Counterparts . . . . . . . . . . . . . . . . . 20
ii
<PAGE> 4
[FIRST] SUPPLEMENTAL INDENTURE, dated as of ______ __,___ (the
"First Supplemental Indenture"), between The Allstate Corporation, a Delaware
corporation (the "Company"), and State Street Bank and Trust Company, as
trustee (the "Trustee") under the Indenture, dated as of ______ __,___, between
the Company and the Trustee (the "Indenture").
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered
as provided in the Indenture;
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Securities to
be known as its ___% Subordinated Deferrable Interest Debentures due ____ (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Indenture
and this First Supplemental Indenture;
WHEREAS, [Allstate Financing III], a Delaware statutory
business trust (the "Trust"), has offered to the public $_____ million aggregate
liquidation amount of its ___% ____________ Preferred Securities (the
"Preferred Securities"), representing undivided beneficial interests in the
assets of the Trust and proposes to invest the proceeds from such offering,
together with the proceeds of the issuance and sale by the Trust to [the
Company] of $_____ million aggregate liquidation amount of its ___%
_____________ Common Securities, in $____ million aggregate principal amount of
the Debentures; and
WHEREAS, the Company has requested that the Trustee execute
and deliver this First Supplemental Indenture and all requirements necessary to
make this First Supplemental Indenture a valid instrument in accordance with
its terms, and to make the Debentures, when executed by the Company and
authenticated and delivered by the Trustee, the valid obligations of the
Company, have been performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects:
NOW THEREFORE, in consideration of the purchase and acceptance
of the Debentures by the Holders thereof, and for the purpose of setting forth,
as provided in the Indenture, the form and substance of the Debentures and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
<PAGE> 5
ARTICLE I
DEFINITIONS
SECTION 1.1. Definition of Terms.
Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning
when used in this First Supplemental Indenture;
(b) a term defined anywhere in this First Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section
or Article of this First Supplemental Indenture;
(e) headings are for convenience of reference only and do
not affect interpretation;
(f) the following terms have the meanings given to them
in the Declaration: (i) Business Day; (ii) Clearing Agency; (iii) Delaware
Trustee; (iv) Depositary; (v) Dissolution Tax Opinion; (vi) No Recognition
Opinion; (vii) Preferred Security Certificate; (viii) Pricing Agreement; (ix)
Property Trustee; (x) Regular Trustees; (xi) Tax Event; and (xii) Underwriting
Agreement;
(g) the following terms have the meanings given to them
in this Section 1.1(g):
"Additional Interest" shall have the meaning set forth in
Section 2.5.
"Compounded Interest" shall have the meaning set forth in
Section 4.1.
"Declaration" means the Amended and Restated Declaration of
Trust of [Allstate Financing III], a Delaware statutory business trust, dated as
of ______ __,___.
"Deferred Interest" shall have the meaning set forth in
Section 4.1.
"Dissolution Event" means that, as a result of the occurrence
and continuation of a Tax Event, the Trust is to be dissolved in accordance
with the Declaration, and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities issued by the Trust pro rata
in accordance with the Declaration.
2
<PAGE> 6
"Extended Interest Payment Period" shall have the meaning set
forth in Section 4.1.
"Global Debenture" shall have the meaning set forth in Section
2.4.
"Maturity Date" means the date on which the Debentures mature
and on which the principal shall be due and payable together with all accrued
and unpaid interest thereon including Compounded Interest and Additional
Interest, if any.
"Non Book-Entry Preferred Securities" shall have the meaning
set forth in Section 2.4.
"Optional Redemption Price" shall have the meaning set forth
in Section 3.2.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
SECTION 2.1. Designation and Principal Amount.
There is hereby authorized a series of Securities designated
the "___% Subordinated Deferrable Interest Debentures due ___", limited in
aggregate principal amount to $________, which amount shall be as set forth in
any written order of the Company for the authentication and delivery of
Debentures pursuant to Section 2.04 of the Indenture.
SECTION 2.2. Maturity.
The Maturity Date is ______ __,___.
SECTION 2.3. Form and Payment.
Except as provided in Section 2.4, the Debentures shall be
issued in fully registered certificated form without interest coupons.
Principal and interest on the Debentures issued in certificated form will be
payable, the transfer of such Debentures will be registrable and such
Debentures will be exchangeable for Debentures bearing identical terms and
provisions at the office or agency of the Trustee; provided, however, that
payment of interest may be made at the option of the Company by check mailed to
the Holder at such address as shall appear in the Security Register.
Notwithstanding the foregoing, so long as the Holder of any Debentures is the
Property Trustee, the payment of the principal of and interest (including
Compounded Interest and Additional Interest, if any) on such Debentures held by
the Property Trustee will be made at such place and to such account as may be
designated by the Property Trustee.
3
<PAGE> 7
SECTION 2.4. Global Debenture.
(a) In connection with a Dissolution Event,
(i) the Debentures in certificated form may be
presented to the Trustee by the Property Trustee in exchange for a
global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global
Debenture"), to be registered in the name of the Depositary, or its
nominee, and delivered by the Trustee to the Depositary for crediting
to the accounts of its participants pursuant to the instructions of
the Regular Trustees. The Company upon any such presentation shall
execute a Global Debenture in such aggregate principal amount and
deliver the same to the Trustee for authentication and delivery in
accordance with the Indenture and this First Supplemental Indenture.
Payments on the Debentures issued as a Global Debenture will be made
to the Depositary; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated form may
be presented to the Trustee by the Property Trustee and any Preferred
Security Certificate which represents Preferred Securities other than
Preferred Securities held by the Clearing Agency or its nominee ("Non
Book-Entry Preferred Securities") will be deemed to represent
beneficial interests in Debentures presented to the Trustee by the
Property Trustee having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Preferred
Securities until such Preferred Security Certificates are presented to
the Security Registrar for transfer or reissuance at which time such
Preferred Security Certificates will be cancelled and a Debenture,
registered in the name of the holder of the Preferred Security
Certificate or the transferee of the holder of such Preferred Security
Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Preferred Security
Certificate cancelled, will be executed by the Company and delivered
to the Trustee for authentication and delivery in accordance with the
Indenture and this First Supplemental Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal amount
that were presented by the Property Trustee to the Trustee will be
deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but
not in part, only to another nominee of the Depositary, or to a successor
Depositary selected or approved by the Company or to a nominee of such
successor Depositary.
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(c) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or if at any time the
Depositary for such series shall no longer be registered or in good standing
under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation, and a successor Depositary for such series is not
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the Company will
execute, and, subject to Article II of the Indenture, the Trustee, upon written
notice from the Company, will authenticate and make available for delivery the
Debentures in definitive registered form without coupons, in authorized
denominations, and in an aggregate principal amount equal to the principal
amount of the Global Debenture in exchange for such Global Debenture. In
addition, the Company may at any time determine that the Debentures shall no
longer be represented by a Global Debenture. In such event the Company will
execute, and subject to Section 2.07 of the Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company, will authenticate and deliver the Debentures in definitive registered
form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture in
exchange for such Global Debenture. Upon the exchange of the Global Debenture
for such Debentures in definitive registered form without coupons, in
authorized denominations, the Global Debenture shall be cancelled by the
Trustee. Such Debentures in definitive registered form issued in exchange for
the Global Debenture shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Securities to the Depositary for delivery to the Persons in
whose names such Securities are so registered.
SECTION 2.5. Interest.
(a) Each Debenture will bear interest at the rate of ___%
per annum (the "Coupon Rate") from the original date of issuance until the
principal thereof becomes due and payable, and on any overdue principal and (to
the extent that payment of such interest is enforceable under applicable law)
on any overdue installment of interest at the Coupon Rate, compounded
quarterly, payable (subject to the provisions of Article Four) quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year (each,
an "Interest Payment Date," commencing on ____________ __, ____), to the Person
in whose name such Debenture or any predecessor Debenture is registered, at the
close of business on the regular record date for such interest installment,
which, in respect of any Debentures of which the Property Trustee is the Holder
of a Global Debenture, shall be the close of business on the Business Day next
preceding that Interest
5
<PAGE> 9
Payment Date. Notwithstanding the foregoing sentence, if the Preferred
Securities are no longer in book-entry only form, except if the Debentures are
held by the Property Trustee, the Debentures are not represented by a Global
Debenture, the Company may select a regular record date for such interest
installment which shall be any date at least one Business Day before an
Interest Payment Date.
(b) The amount of interest payable for any period will be
computed on the basis of a 360-day year of twelve 30-day months. Except as
provided in the following sentence, the amount of interest payable for any
period shorter than a full quarterly period for which interest is computed,
will be computed on the basis of the actual number of days elapsed in such a
30-day period. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
will be made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall
be made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(c) If, at any time while the Property Trustee is the
Holder of any Debentures, the Trust or the Property Trustee is required to pay
any taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) imposed by the United States, or any other
taxing authority, then, in any case, the Company will pay as additional
interest ("Additional Interest") on the Debentures held by the Property
Trustee, such additional amounts as shall be required so that the net amounts
received and retained by the Trust and the Property Trustee after paying such
taxes, duties, assessments or other governmental charges will be equal to the
amounts the Trust and the Property Trustee would have received had no such
taxes, duties, assessments or other government charges been imposed.
ARTICLE III
REDEMPTION OF THE DEBENTURES
SECTION 3.1. Special Event Redemption.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax Opinion; or
(b) after receiving a Dissolution Tax Opinion, the
Regular Trustees shall have been informed by tax counsel
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rendering the Dissolution Tax Opinion that a No Recognition Opinion
cannot be delivered to the Trust,
then, notwithstanding Section 3.2(a) but subject to Section 3.2(b), the Company
shall have the right upon not less than 30 days nor more than 60 days notice to
the Holders of the Debentures to redeem the Debentures, in whole or in part,
for cash within 90 days following the occurrence of such Tax Event (the "90 Day
Period") at a redemption price equal to 100% of the principal amount to be
redeemed plus any accrued and unpaid interest thereon to the date of such
redemption (the "Redemption Price"); provided that if at the time there is
available to the Company the opportunity to eliminate, within the 90 Day
Period, the Tax Event by taking some ministerial action ("Ministerial Action"),
such as filing a form or making an election, or pursuing some other similar
reasonable measure which has no adverse effect on the Company, the Trust or the
Holders of the Trust Securities issued by the Trust, the Company shall pursue
such Ministerial Action in lieu of redemption; and provided, further, that the
Company shall have no right to redeem the Debentures while the Trust is
pursuing any Ministerial Action pursuant to its obligations under the
Declaration. The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or such earlier time as the Company
determines, provided that the Company shall deposit with the Trustee an amount
sufficient to pay the Redemption Price by 10:00 a.m., New York time, on the
date such Redemption Price is to be paid.
SECTION 3.2. Optional Redemption by Company.
(a) Subject to the provisions of Section 3.2(b) and to
the provisions of Article XIV of the Indenture, except as otherwise may be
specified in this First Supplemental Indenture, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after ______ __,___, at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest thereon to the date
of such redemption (the "Optional Redemption Price"). Any redemption pursuant
to this paragraph will be made upon not less than 30 days nor more than 60 days
notice to the Holder of the Debentures, at the Optional Redemption Price. If
the Debentures are only partially redeemed pursuant to this Section 3.2, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided, that if at the time of redemption the Debentures are
registered as a Global Debenture, the Depositary shall determine, in accordance
with its procedures, the principal amount of such Debentures held by each
Holder of Debenture to be redeemed. The Optional Redemption Price shall be
paid prior to 12:00 noon, New York time, on the date of such redemption or at
such earlier time as the Company determines provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Optional Redemption
Price
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<PAGE> 11
by 10:00 a.m., New York time, on the date such Optional Redemption Price is to
be paid.
(b) If a partial redemption of the Debentures would
result in the delisting of the Preferred Securities issued by the Trust from
any national securities exchange or other organization on which the Preferred
Securities are then listed, the Company shall not be permitted to effect such
partial redemption and may only redeem the Debentures in whole.
SECTION 3.3. No Sinking Fund.
The Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 4.1. Extension of Interest Payment Period.
The Company shall have the right, at any time and from time to
time during the term of the Debentures, to defer payments of interest by
extending the interest payment period of such Debentures for a period not
exceeding 20 consecutive quarters (the "Extended Interest Payment Period"),
during which Extended Interest Payment Period no interest shall be due and
payable; provided that no Extended Interest Payment Period may extend beyond
the Maturity Date. To the extent permitted by applicable law, interest, the
payment of which has been deferred because of the extension of the interest
payment period pursuant to this Section 4.1, will bear interest thereon at the
Coupon Rate compounded quarterly for each quarter of the Extended Interest
Payment Period ("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and unpaid on the
Debentures, including any Additional Interest and Compounded Interest
(together, "Deferred Interest") that shall be payable to the Holders of the
Debentures in whose names the Debentures are registered in the Security
Register on the first record date after the end of the Extended Interest
Payment Period. Before the termination of any Extended Interest Payment
Period, the Company may further extend such period; provided, that such period
together with all such further extensions thereof shall not exceed 20
consecutive quarters, or extend beyond the maturity date of the Debentures.
Upon the termination of any Extended Interest Payment Period and upon the
payment of all Deferred Interest then due, the Company may commence a new
Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
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<PAGE> 12
portion of the interest accrued during an Extended Interest Payment Period.
SECTION 4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder
of the Debentures at the time the Company selects an Extended Interest Payment
Period, the Company shall give written notice to the Regular Trustees, the
Property Trustee and the Trustee of its selection of such Extended Interest
Payment Period one Business Day before the earlier of (i) the next succeeding
date on which Distributions on the Trust Securities issued by the Trust are
payable, or (ii) the date the Trust is required to give notice of the record
date, or the date such Distributions are payable, to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Preferred Securities issued by the Trust, but in any event at least one
Business Day before such record date.
(b) If the Property Trustee is not the only Holder of the
Debentures at the time the Company selects an Extended Interest Payment Period,
the Company shall give the Holders of the Debentures and the Trustee written
notice of its selection of such Extended Interest Payment Period at least 10
Business Days before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of the record or
payment date of such interest payment to the New York Stock Exchange or other
applicable self-regulatory organization or to Holders of the Debentures.
(c) The quarter in which any notice is given pursuant to
paragraphs (a) or (b) of this Section 4.2 shall be counted as one of the 20
quarters permitted in the maximum Extended Interest Payment Period permitted
under Section 4.1.
Section 4.3. Limitation on Dividends.
If (i) the Company shall exercise its right to defer payment
of interest as provided in Section 4.1 or (ii) there shall have occurred any
Event of Default, as defined in the Indenture, then (a) the Company shall not
declare or pay any dividend on, make any distributions with respect to, or
redeem, purchase or make a liquidation payment with respect to, any of its
capital stock (other than (i) purchases or acquisitions of shares of common
stock in connection with the satisfaction by the Company of its obligations
under any employee benefit plans, (ii) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of the Company's
capital stock or (iii) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock of
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<PAGE> 13
the Company or the security being converted or exchanged) or make any guarantee
payment with respect to the foregoing, and (b) the Company shall not make any
payments of interest, principal or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees) issued by the Company which
rank pari passu with or junior to the Debentures.
ARTICLE V
EXPENSES
SECTION 5.1. Payment of Expenses.
In connection with the offering, sale and issuance of the
Debentures to the Property Trustee and in connection with the sale of the Trust
Securities by the Trust, the Company, in its capacity as borrower with respect
to the Debentures, shall:
(a) pay all costs and expenses relating to the offering,
sale and issuance of the Debentures, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and the Pricing Agreement and
compensation and expenses of the Trustee under the Indenture in accordance with
the provisions of Section 607 of the Indenture;
(b) pay all costs and expenses of the Trust (including,
but not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities (including
commissions to the underwriters in connection therewith), the fees and expenses
of the Property Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without limitation, costs and
expenses of accountants, attorneys, statistical or bookkeeping services,
expenses for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and expenses incurred
in connection with the acquisition, financing, and disposition of Trust
assets);
(c) be primarily and fully liable for any indemnification
obligations arising with respect to the Declaration; and
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all liabilities,
costs and expenses with respect to such taxes of the Trust.
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<PAGE> 14
SECTION 5.2. Payment Upon Resignation or Removal.
Upon termination of this First Supplemental Indenture or the
Indenture or the removal or resignation of the Trustee, unless otherwise
stated, the Company shall pay to the Trustee all amounts accrued to the date of
such termination, removal or resignation. Upon termination of the Declaration
or the removal or resignation of the Delaware Trustee or the Property Trustee,
as the case may be, pursuant to Section 5.6 of the Declaration, the Company
shall pay to the Delaware Trustee or the Property Trustee, as the case may be,
all amounts accrued to the date of such termination, removal or resignation.
ARTICLE VI
COVENANT TO LIST ON EXCHANGE
SECTION 6.1. Listing on an Exchange.
If the Debentures are to be issued as a Global Debenture in
connection with the distribution of the Debentures to the holders of the
Preferred Securities issued by the Trust upon a Dissolution Event, the Company
will use its best efforts to list such Debentures on the New York Stock
Exchange, Inc. or on such other exchange as the Preferred Securities are then
listed.
ARTICLE VII
FORM OF DEBENTURE
SECTION 7.1. Form of Debenture.
The Debentures and the Trustee's Certificate of Authentication
to be endorsed thereon are to be substantially in the following forms:
(FORM OF FACE OF DEBENTURE)
[IF THE DEBENTURE IS TO BE A GLOBAL DEBENTURE, INSERT - This
Debenture is a Global Debenture within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee of a
Depositary. This Debenture is exchangeable for Debentures registered in the
name of a person other than the Depositary or its nominee only in the limited
circumstances described in the Indenture, and no transfer of this Debenture
(other than a transfer of this Debenture as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary
or another nominee of the Depositary) may be registered except in limited
circumstances.
Unless this Debenture is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
11
<PAGE> 15
New York, New York) to the issuer or its agent for registration of transfer,
exchange or payment, and any Debenture issued is registered in the name of Cede
& Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
No. ______________________________ CUSIP No.
THE ALLSTATE CORPORATION
___% SUBORDINATED DEFERRABLE INTEREST DEBENTURE
DUE ____
THE ALLSTATE CORPORATION, a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
______________ or registered assigns, the principal sum of _____________
Dollars ($___________) on __________ __, ____, and to pay interest on said
principal sum from __________ __, ____, or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, quarterly (subject to deferral as set forth
herein) in arrears on March 31, June 30, September 30 and December 31 of each
year commencing __________ __, ____, at the rate of ___% per annum until the
principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded quarterly. The
amount of interest payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any
date on which interest is payable on this Debenture is not a Business Day, then
payment of interest payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in
respect of any such delay), except that, if such Business Day is in the next
succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on such date. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the person in whose name this Debenture (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of
business on the regular record date for such interest installment, which shall
be the close of
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business on the business day next preceding such Interest Payment Date. [IF
PURSUANT TO THE PROVISIONS OF THE INDENTURE THE DEBENTURES ARE NO LONGER
REPRESENTED BY A GLOBAL Debenture -- which shall be the close of business on
the ____ business day next preceding such Interest Payment Date.] Any such
interest installment not punctually paid or duly provided for shall forthwith
cease to be payable to the registered Holders on such regular record date and
may be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the registered Holders of this
series of Debentures not less than 10 days prior to such special record date,
or may be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture. The principal of (and premium, if any) and the
interest on this Debenture shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of the United
States of America that at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made at the option of the Company by check mailed to the registered Holder at
such address as shall appear in the Security Register. Notwithstanding the
foregoing, so long as the Holder of this Debenture is the Property Trustee, the
payment of the principal of (and premium, if any) and interest on this
Debenture will be made at such place and to such account as may be designated
by the Property Trustee.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each Holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder
of Senior Indebtedness, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the
Indenture hereinafter referred to, be valid or become obligatory for any
purpose until the Certificate of Authentica-
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<PAGE> 17
tion hereon shall have been signed by or on behalf of the Trustee.
The provisions of this Debenture are continued on the reverse
side hereof and such continued provisions shall for all purposes have the same
effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to
be executed.
THE ALLSTATE CORPORATION
By:
-----------------------------
Name:
Title
Attest:
By:
------------------------------
Name:
Title:
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<PAGE> 18
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
Dated
-----------------------------
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By
--------------------------------
Authorized Signatory
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of
Debentures of the Company (herein sometimes referred to as the "Debentures"),
specified in the Indenture, all issued or to be issued in one or more series
under and pursuant to an Indenture dated as of ____________ __, ____, duly
executed and delivered between the Company and State Street Bank and Trust
Company, as Trustee (the "Trustee"), as supplemented by the First Supplemented
Indenture dated as of ____________ __, ____, between the Company and the
Trustee (the Indenture as so supplemented, the "Indenture"), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the
Debentures. By the terms of the Indenture, the Debentures are issuable in
series that may vary as to amount, date of maturity, rate of interest and in
other respects as provided in the Indenture. This series of Debentures is
limited in aggregate principal amount as specified in said First Supplemental
Indenture.
Because of the occurrence and continuation of a Tax Event, in
certain circumstances, this Debenture may become due and payable at the
principal amount together with any interest accrued thereon (the "Redemption
Price"). The Redemption Price shall be paid prior to 12:00 noon, New York
time, on the date of such redemption or at such earlier time as the Company
determines. The Company shall have the right to redeem this Debenture at the
option of the Company, without premium or penalty, in whole or in part at any
time on or after ____________ __, ____ (an "Optional Redemption"), or at any
time in certain circumstances upon the occurrence of a Tax Event, at a
redemption price
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<PAGE> 19
equal to 100% of the principal amount plus any accrued but unpaid interest, to
the date of such redemption (the "Optional Redemption Price"). Any redemption
pursuant to this paragraph will be made upon not less than 30 days nor more
than 60 days notice, at the Optional Redemption Price. If the Debentures are
only partially redeemed by the Company pursuant to an Optional Redemption, the
Debentures will be redeemed pro rata or by lot or by any other method utilized
by the Trustee; provided, that if, at the time of redemption, the Debentures
are registered as a Global Debenture, the Depositary shall determine the
principal amount of such Debentures held by each Debentureholder to be redeemed
in accordance with its procedures.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures of this series for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture,
shall have occurred and be continuing, the principal of all of the Debentures
may be declared, and upon such declaration shall become, due and payable, in
the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and
the Trustee, with the consent of the Holders of not less than [a majority in]
aggregate principal amount of the Debentures of each series affected at the
time outstanding, as defined in the Indenture, to execute supplemental
indentures for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Debentures; provided, however, that no such supplemental indenture shall
(i) extend the fixed maturity of any Debentures of any series, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium payable upon the redemption thereof,
without the consent of the Holder of each Debenture so affected, or (ii) reduce
the aforesaid percentage of Debentures, the Holders of which are required to
consent to any such supplemental indenture, without the consent of the Holders
of each Debenture then outstanding and affected thereby. The Indenture also
contains provisions permitting the Holders of [a majority in] aggregate
principal amount of the Debentures of any series at the time outstanding
affected thereby, on behalf of all of the Holders of the Debentures of such
series, to waive any past default in the performance of any of the covenants
contained in the Indenture, or established pursuant to the Indenture with
respect to such series, and its consequences, except a default in the payment
of the principal of or premium, if any, or interest on any of the Debentures of
such series. Any such consent or waiver by the registered Holder of this
Debenture (unless revoked as
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<PAGE> 20
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Debenture and of any Debenture
issued in exchange herefor or in place hereof (whether by registration of
transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
premium, if any, and interest on this Debenture at the time and place and at
the rate and in the money herein prescribed.
The Company shall have the right at any time during the term
of the Debentures and from time to time to extend the interest payment period
of such Debentures for up to 20 consecutive quarters (an "Extended Interest
Payment Period"), at the end of which period the Company shall pay all interest
then accrued and unpaid (together with interest thereon at the rate specified
for the Debentures to the extent that payment of such interest is enforceable
under applicable law); provided that no Extended Interest Payment Period may
last beyond the maturity date of the Debentures. Before the termination of any
such Extended Interest Payment Period, the Company may further extend such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period together with all such further extensions thereof shall not exceed 20
consecutive quarters or extend the maturity date of the Debentures. At the
termination of any such Extended Interest Payment Period and upon the payment
of all accrued and unpaid interest and any additional amounts then due, the
Company may commence a new Extended Interest Payment Period.
As provided in the Indenture and subject to certain
limitations therein set forth, this Debenture is transferable by the registered
Holder hereof on the Security Register of the Company, upon surrender of this
Debenture for registration of transfer at the office or agency of [the Trustee]
in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Debentures of authorized denominations
and for the same aggregate principal amount and series will be issued to the
designated transferee or transferees. No service charge will be made for any
such transfer, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this
Debenture, the Company, the Trustee, any paying agent and the Security
Registrar may deem and treat the registered holder
17
<PAGE> 21
hereof as the absolute owner hereof (whether or not this Debenture shall be
overdue and notwithstanding any notice of ownership or writing hereon made by
anyone other than the Security Registrar) for the purpose of receiving payment
of or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent nor any Security Registrar shall be affected by any notice to
the contrary.
No recourse shall be had for the payment of the principal of
or the interest on this Debenture, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
[The Debentures of this series are issuable only in registered
form without coupons in denominations of $___ and any integral multiple
thereof.] [This Global Debenture is exchangeable for Debentures in definitive
form only under certain limited circumstances set forth in the Indenture.
Debentures of this series so issued are issuable only in registered form
without coupons in denominations of $___ and any integral multiple thereof.]
As provided in the Indenture and subject to certain limitations [herein and]
therein set forth, Debentures of this series [so issued] are exchangeable for a
like aggregate principal amount of Debentures of this series of a different
authorized denomination, as requested by the Holder surrendering the same.
All terms used in this Debenture that are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THE DEBENTURES WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS
THEREOF.
18
<PAGE> 22
ARTICLE VIII
ORIGINAL ISSUE OF DEBENTURES
SECTION 8.1. Original Issue of Debentures.
Debentures in the aggregate principal amount of $__________
may, upon execution of this First Supplemental Indenture, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debentures to or upon the written order
of the Company, signed by its Chairman, its Vice Chairman, its President, or
any Vice President and its Treasurer or an Assistant Treasurer, without any
further action by the Company.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1. Ratification of Indenture.
The Indenture, as supplemented by this First Supplemental
Indenture, is in all respects ratified and confirmed, and this First
Supplemental Indenture shall be deemed part of the Indenture in the manner and
to the extent herein and therein provided.
SECTION 9.2. Trustee Not Responsible for Recitals.
The recitals herein contained are made by the Company and not
by the Trustee, and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representation as to the validity or sufficiency
of this First Supplemental Indenture.
SECTION 9.3. Governing Law.
This First Supplemental Indenture and each Debenture shall be
deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said
State.
SECTION 9.4. Separability.
In case any one or more of the provisions contained in this
First Supplemental Indenture or in the Debentures shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Debentures, but this First Supplemental
Indenture and the Debentures shall be construed as if such
19
<PAGE> 23
invalid or illegal or unenforceable provision had never been contained herein
or therein.
SECTION 9.5. Counterparts.
This First Supplemental Indenture may be executed in any
number of counterparts each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
20
<PAGE> 24
IN WITNESS WHEREOF, the parties hereto have caused this
[First] Supplemental Indenture to be duly executed, on the date or dates
indicated in the acknowledgements and as of the day and year first above
written.
THE ALLSTATE CORPORATION
By
-------------------------------
Name:
Title:
Attest:
By:
--------------------
STATE STREET BANK AND
TRUST COMPANY,
as Trustee
By
--------------------------------
Name:
Title:
Attest:
By:
-------------------
21
<PAGE> 1
EXHIBIT 4.5
CERTIFICATE OF TRUST OF
ALLSTATE FINANCING III
This Certificate of Trust of Allstate Financing III (the "Trust"), dated
August 16, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Allstate
Financing III.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are:
Delaware Trust Capital Management, Inc., 900 Market Street, 2nd Floor,
Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
August 21, 1996.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
Joseph T. Kane, not in his individual capacity but
solely as Trustee
/s/ JOSEPH T. KANE
--------------------------------------------------
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity but
solely as Trustee
By: /s/ ERIC DONAGHEY
----------------------------------------------
Name: Eric Donaghey
Title: Assistant Vice President
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its individual
capacity but solely as Trustee
By: /s/ RICHARD N. SMITH
----------------------------------------------
Name: Richard N. Smith
Title: Vice President
<PAGE> 1
EXHIBIT 4.6
DECLARATION OF TRUST
This Declaration of Trust, dated as of August 16, 1996, among The Allstate
Corporation, a Delaware corporation, as "Depositor," Joseph T. Kane, State
Street Bank and Trust Company, a Massachusetts Trust Company, and Delaware
Trust Capital Management, Inc., a Delaware banking corporation, not in their
individual capacities but solely as "Trustees." The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as Allstate
Financing III, in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section Section 3801 et seq. (the "Business
Trust Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as Exhibit 4.13 to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
<PAGE> 2
4 . The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement (including the prospectus
and the exhibits contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust
and certain other securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including any pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
(the "Exchange") and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the Exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws, and to obtain any permits under the
insurance laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable and (iv) to execute on behalf of the Trust one
or more Underwriting Agreements with one or more underwriters relating to the
offering of the Preferred Securities. In the event that any filing referred to
in clauses (i) through (iii) above is required by the rules and regulations of
the Commission, the Exchange or any other national stock exchange or state
securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, in their capacities as Trustees of the Trust, then the Trustees are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that each
of State Street Bank and Trust Company and Delaware Trust Capital Management,
Inc., in its capacity as Trustee of the Trust, shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Jerry D.
Choate, Edward M. Liddy, Thomas J. Wilson, II, Robert W. Pike and James P.
Zils, and each of them, as his or its, as the case may be, true and lawful
attorneys-in-fact and agents, with full power of substitution, for the
Depositor or in the Depositor's name, place and stead, in any and all
capacities,
2
<PAGE> 3
to sign any and all amendments (including post-effective amendments) to the
1933 Act Registration Statement and the 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at any
time. A Trustee may resign upon 30 days' prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be executed as of the day and year first above written.
THE ALLSTATE CORPORATION,
as Depositor
By: /s/ JAMES P. ZILS
--------------------------------------
Name: James P. Zils
Title: Treasurer
Joseph T. Kane, not in his individual
capacity but solely as Trustee
/s/ JOSEPH T. KANE
--------------------------------------
STATE STREET BANK
AND TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ ERIC DONAGHEY
--------------------------------------
Name: Eric Donaghey
Title: Assistant Vice President
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its
individual capacity but solely as Trustee
By: /s/ RICHARD N. SMITH
--------------------------------------
Name: Richard N. Smith
Title: Vice President
4
<PAGE> 1
EXHIBIT 4.7
CERTIFICATE OF TRUST OF
ALLSTATE FINANCING IV
This Certificate of Trust of Allstate Financing IV (the "Trust"), dated
August 16, 1996, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Allstate
Financing IV.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are:
Delaware Trust Capital Management, Inc., 900 Market Street, 2nd Floor,
Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
August 21, 1996.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
Joseph T. Kane, not in his individual capacity but
solely as Trustee
/s/ JOSEPH T. KANE
--------------------------------------------------
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity but
solely as Trustee
By: /s/ ERIC DONAGHEY
----------------------------------------------
Name: Eric Donaghey
Title: Assistant Vice President
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its individual
capacity but solely as Trustee
By: /s/ RICHARD N. SMITH
----------------------------------------------
Name: Richard N. Smith
Title: Vice President
<PAGE> 1
EXHIBIT 4.8
DECLARATION OF TRUST
This Declaration of Trust, dated as of August 16, 1996, among The Allstate
Corporation, a Delaware corporation, as "Depositor," Joseph T. Kane, State
Street Bank and Trust Company, a Massachusetts Trust Company, and Delaware
Trust Capital Management, Inc., a Delaware banking corporation, not in their
individual capacities but solely as "Trustees." The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as Allstate
Financing IV, in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section Section 3801 et seq. (the "Business
Trust Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as Exhibit 4.13 to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
<PAGE> 2
4 . The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement (including the prospectus
and the exhibits contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust
and certain other securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including any pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
(the "Exchange") and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the Exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws, and to obtain any permits under the
insurance laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable and (iv) to execute on behalf of the Trust one
or more Underwriting Agreements with one or more underwriters relating to the
offering of the Preferred Securities. In the event that any filing referred to
in clauses (i) through (iii) above is required by the rules and regulations of
the Commission, the Exchange or any other national stock exchange or state
securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, in their capacities as Trustees of the Trust, then the Trustees are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that each
of State Street Bank and Trust Company and Delaware Trust Capital Management,
Inc., in its capacity as Trustee of the Trust, shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Jerry D.
Choate, Edward M. Liddy, Thomas J. Wilson, II, Robert W. Pike and James P.
Zils, and each of them, as his or its, as the case may be, true and lawful
attorneys-in-fact and agents, with full power of substitution, for the
Depositor or in the Depositor's name, place and stead, in any and all
capacities,
2
<PAGE> 3
to sign any and all amendments (including post-effective amendments) to the
1933 Act Registration Statement and the 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at any
time. A Trustee may resign upon 30 days' prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be executed as of the day and year first above written.
THE ALLSTATE CORPORATION,
as Depositor
By: /s/ JAMES P. ZILS
---------------------------------
Name: James P. Zils
Title: Treasurer
Joseph T. Kane, not in his individual
capacity but solely as Trustee
/s/ JOSEPH T. KANE
-------------------------------------
STATE STREET BANK
AND TRUST COMPANY, not in the
individual capacity but solely as Trustee
By: /s/ ERIC DONAGHEY
---------------------------------
Name: Eric Donaghey
Title: Assistant Vice
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its
individual capacity but solely as Trustee
By: /s/ RICHARD N. SMITH
---------------------------------
Name: Richard N. Smith
Title: Vice President
4
<PAGE> 1
EXHIBIT 4.9
CERTIFICATE OF TRUST OF
ALLSTATE FINANCING V
This Certificate of Trust of Allstate Financing V (the "Trust"), dated
August 14, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Allstate
Financing V.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are:
Delaware Trust Capital Management, Inc., 1 Rodney Square, 920 King Street,
Suite 102, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
August 14, 1998.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
Joseph T. Kane, not in his individual capacity but
solely as Trustee
/s/ Joseph T. Kane
--------------------------------------------------
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity but
solely as Trustee
By: /s/ James E. Schultz
----------------------------------------------
Name: James E. Schultz
Title: Assistant Secretary
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its individual
capacity but solely as Trustee
By: /s/ Doris J. Krick
----------------------------------------------
Name: Doris J. Krick
Title: Vice President
<PAGE> 1
EXHIBIT 4.10
DECLARATION OF TRUST
This Declaration of Trust, dated as of August 14, 1998, among The Allstate
Corporation, a Delaware corporation, as "Depositor," Joseph T. Kane, State
Street Bank and Trust Company, a Massachusetts Trust Company, and Delaware
Trust Capital Management, Inc., a Delaware banking corporation, not in their
individual capacities but solely as "Trustees." The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as Allstate
Financing V, in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section Section 3801 et seq. (the "Business
Trust Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as Exhibit 4.13 to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
<PAGE> 2
4 . The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement (including the prospectus
and the exhibits contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust
and certain other securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including any pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
(the "Exchange") and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the Exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws, and to obtain any permits under the
insurance laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable and (iv) to execute on behalf of the Trust one
or more Underwriting Agreements with one or more underwriters relating to the
offering of the Preferred Securities. In the event that any filing referred to
in clauses (i) through (iii) above is required by the rules and regulations of
the Commission, the Exchange or any other national stock exchange or state
securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, in their capacities as Trustees of the Trust, then the Trustees are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that each
of State Street Bank and Trust Company and Delaware Trust Capital Management,
Inc., in its capacity as Trustee of the Trust, shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Jerry D.
Choate, Edward M. Liddy, Thomas J. Wilson, II, Robert W. Pike and James P.
Zils, and each of them, as his or its, as the case may be, true and lawful
attorneys-in-fact and agents, with full power of substitution, for the
Depositor or in the Depositor's name, place and stead, in any and all
capacities,
2
<PAGE> 3
to sign any and all amendments (including post-effective amendments) to the
1933 Act Registration Statement and the 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at any
time. A Trustee may resign upon 30 days' prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be executed as of the day and year first above written.
THE ALLSTATE CORPORATION,
as Depositor
By: /s/ Thomas J. Wilson, II
--------------------------------------
Name: Thomas J. Wilson, II
Title: Vice President and Chief
Financial Officer
Joseph T. Kane, not in his individual
capacity but solely as Trustee
/s/ Joseph T. Kane
--------------------------------------
STATE STREET BANK
AND TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ James E. Schultz
--------------------------------------
Name: James E. Schultz
Title: Assistant Secretary
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its
individual capacity but solely as Trustee
By: /s/ Doris J. Krick
--------------------------------------
Name: Doris J. Krick
Title: Vice President
4
<PAGE> 1
EXHIBIT 4.11
CERTIFICATE OF TRUST OF
ALLSTATE FINANCING VI
This Certificate of Trust of Allstate Financing VI (the "Trust"), dated
August 14, 1998, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. Section Section 3801 et seq.).
1. Name. The name of the business trust formed hereby is Allstate
Financing VI.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are:
Delaware Trust Capital Management, Inc., 1 Rodney Square, 920 King Street,
Suite 102, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be effective as of
August 14, 1998.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust, have
executed this Certificate of Trust as of the date first above written.
Joseph T. Kane, not in his individual capacity but
solely as Trustee
/s/ Joseph T. Kane
--------------------------------------------------
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity but
solely as Trustee
By: /s/ James E. Schultz
----------------------------------------------
Name: James E. Schultz
Title: Assistant Secretary
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its individual
capacity but solely as Trustee
By: /s/ Doris J. Krick
----------------------------------------------
Name: Doris J. Krick
Title: Vice President
<PAGE> 1
EXHIBIT 4.12
DECLARATION OF TRUST
This Declaration of Trust, dated as of August 14, 1998, among The Allstate
Corporation, a Delaware corporation, as "Depositor," Joseph T. Kane, State
Street Bank and Trust Company, a Massachusetts Trust Company, and Delaware
Trust Capital Management, Inc., a Delaware banking corporation, not in their
individual capacities but solely as "Trustees." The Depositor and the Trustees
hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as Allstate
Financing VI, in which name the Trustees, or the Depositor to the extent
provided herein, may conduct the business of the Trust, make and execute
contracts, and sue and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets over to the
Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. Section Section 3801 et seq. (the "Business
Trust Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with
the provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Declaration of Trust, satisfactory to each such party and
substantially in the form included as Exhibit 4.13 to the 1933 Act Registration
Statement (as defined below), to provide for the contemplated operation of the
Trust created hereby and the issuance of the Preferred Securities and Common
Securities referred to therein. Prior to the execution and delivery of such
amended and restated Declaration of Trust, the Trustees shall not have any duty
or obligation hereunder or with respect to the trust estate, except as
otherwise required by applicable law or as may be necessary to obtain prior to
such execution and delivery of any licenses, consents or approvals required by
applicable law or otherwise.
<PAGE> 2
4 . The Depositor and the Trustees hereby authorize and direct the
Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to such 1933 Act Registration Statement (including the prospectus
and the exhibits contained therein), relating to the registration under the
Securities Act of 1933, as amended, of the Preferred Securities of the Trust
and certain other securities and (b) a Registration Statement on Form 8-A (the
"1934 Act Registration Statement") (including any pre-effective and
post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under Section 12(b) of the Securities
Exchange Act of 1934, as amended; (ii) to file with the New York Stock Exchange
(the "Exchange") and execute on behalf of the Trust a listing application and
all other applications, statements, certificates, agreements and other
instruments as shall be necessary or desirable to cause the Preferred
Securities to be listed on the Exchange; (iii) to file and execute on behalf of
the Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or "Blue Sky" laws, and to obtain any permits under the
insurance laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable and (iv) to execute on behalf of the Trust one
or more Underwriting Agreements with one or more underwriters relating to the
offering of the Preferred Securities. In the event that any filing referred to
in clauses (i) through (iii) above is required by the rules and regulations of
the Commission, the Exchange or any other national stock exchange or state
securities or blue sky laws, to be executed on behalf of the Trust by the
Trustees, in their capacities as Trustees of the Trust, then the Trustees are
hereby authorized and directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that each
of State Street Bank and Trust Company and Delaware Trust Capital Management,
Inc., in its capacity as Trustee of the Trust, shall not be required to join in
any such filing or execute on behalf of the Trust any such document unless
required by the rules and regulations of the Commission, the Exchange or any
other national stock exchange or state securities or blue sky laws. In
connection with all of the foregoing, the Depositor and each Trustee, solely in
its capacity as Trustee of the Trust, hereby constitutes and appoints Jerry D.
Choate, Edward M. Liddy, Thomas J. Wilson, II, Robert W. Pike and James P.
Zils, and each of them, as his or its, as the case may be, true and lawful
attorneys-in-fact and agents, with full power of substitution, for the
Depositor or in the Depositor's name, place and stead, in any and all
capacities,
2
<PAGE> 3
to sign any and all amendments (including post-effective amendments) to the
1933 Act Registration Statement and the 1934 Act Registration Statement and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or any of
them, or their respective substitute or substitutes, shall do or cause to be
done by virtue hereof.
5. This Declaration of Trust may be executed in one or more
counterparts.
6. The number of Trustees initially shall be three (3) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at any
time. A Trustee may resign upon 30 days' prior notice to the Depositor.
7. This Declaration of Trust shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws principles).
3
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have caused this Declaration of
Trust to be executed as of the day and year first above written.
THE ALLSTATE CORPORATION,
as Depositor
By: /s/ Thomas J. Wilson, II
--------------------------------------
Name: Thomas J. Wilson, II
Title: Vice President and Chief
Financial Officer
Joseph T. Kane, not in his individual
capacity but solely as Trustee
/s/ Joseph T. Kane
--------------------------------------
STATE STREET BANK
AND TRUST COMPANY, not in its
individual capacity but solely as Trustee
By: /s/ James E. Schultz
--------------------------------------
Name: James E. Schultz
Title: Assistant Secretary
DELAWARE TRUST CAPITAL
MANAGEMENT, INC., not in its
individual capacity but solely as Trustee
By: /s/ Doris J. Krick
--------------------------------------
Name: Doris J. Krick
Title: Vice President
4
<PAGE> 1
EXHIBIT 4.13
[FORM OF AMENDED AND RESTATED DECLARATION OF TRUST]
====================================
AMENDED AND RESTATED DECLARATION
OF TRUST
[ALLSTATE FINANCING III]
Dated as of ________ __, ____
====================================
<PAGE> 2
TABLE OF CONTENTS
ARTICLE I
INTERPRETATION AND DEFINITIONS
<TABLE>
<S> <C> <C>
Page
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.3 Reports by the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.4 Periodic Reports to Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE III
ORGANIZATION
SECTION 3.1 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.2 Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.3 Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.4 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.5 Title to Property of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.6 Powers and Duties of the Regular Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees . . . . . . . . . . . . . . . . . . . . . 17
SECTION 3.8 Powers and Duties of the Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee . . . . . . . . . . . . . . . . . 21
SECTION 3.10 Certain Rights of Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.11 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.12 Execution of Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.14 Duration of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.15 Mergers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE IV
DEPOSITOR
SECTION 4.1 Depositor's Purchase of Common Securities . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 4.2 Responsibilities of the Depositor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C> <C>
Page
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.2 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 5.3 Property Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware Trustee Generally . . . . . . . . 31
SECTION 5.5 Regular Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.6 Delaware Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 5.7 Appointment, Removal and Resignation of Trustees . . . . . . . . . . . . . . . . . . . . . 32
SECTION 5.8 Vacancies among Trustees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.9 Effect of Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.10 Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.11 Delegation of Power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . 35
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.2 Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.2 Transfer of Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.3 Deemed Security Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 9.4 Book Entry Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 9.5 Notices to Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.6 Appointment of Successor Clearing Agency . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.7 Definitive Preferred Security Certificates . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates . . . . . . . . . . . . . . . . . . . . 41
</TABLE>
ii
<PAGE> 4
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
<TABLE>
<S> <C> <C>
Page
SECTION 10.1 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 10.2 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 10.3 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 10.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 10.5 Outside Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.2 Certain Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.3 Banking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 11.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 12.2 Meetings of the Holders of Securities; Action by Written Consent . . . . . . . . . . . . 51
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee . . . . . . . . . . . . . . . . . . . 53
SECTION 13.2 Representations and Warranties of Delaware Trustee . . . . . . . . . . . . . . . . . . . 54
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 14.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 14.3 Intention of the Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 14.4 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 14.5 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 14.6 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 14.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ANNEX I TERMS OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I-1
EXHIBIT A-1 FORM OF PREFERRED SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE . . . . . . . . . . . . . . . . . . . . . . A2-1
EXHIBIT B SPECIMEN OF DEBENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B-1
EXHIBIT C UNDERWRITING AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . C-1
</TABLE>
iii
<PAGE> 5
CROSS-REFERENCE TABLE*
<TABLE>
<CAPTION>
Section of
Trust Indenture Act Section of
of 1939, as amended Declaration
- ------------------- -----------
<S> <C>
310(a) . . . . . . . . . . . . . . . . . . . 5.3(a)
[310(b)]
310(c) . . . . . . . . . . . . . . . . . . . Inapplicable
[311(a)]
[311(b)]
311(c) . . . . . . . . . . . . . . . . . . . Inapplicable
312(a) . . . . . . . . . . . . . . . . . . . 2.2(a)
312(b) . . . . . . . . . . . . . . . . . . . 2.2(b)
[312(c)]
313 . . . . . . . . . . . . . . . . . . . . . 2.3
314(a) . . . . . . . . . . . . . . . . . . . 2.4
314(b) . . . . . . . . . . . . . . . . . . . Inapplicable
314(c) . . . . . . . . . . . . . . . . . . . 2.5
314(d) . . . . . . . . . . . . . . . . . . . Inapplicable
[314(e) Inapplicable]
314(f) . . . . . . . . . . . . . . . . . . . Inapplicable [No Reference]
315(a) . . . . . . . . . . . . . . . . . . . 3.9(b)
[315(b)]
315(c) . . . . . . . . . . . . . . . . . . . 3.9(a)
315(d) . . . . . . . . . . . . . . . . . . . 3.9(a)
[315(e)]
316(a) . . . . . . . . . . . . . . . . . . . Annex I [Not Applicable]
[316(b)]
316(c) . . . . . . . . . . . . . . . . . . . 3.6(e)
[317(a)] - [Not Applicable]
[317(b)]
[318(a)]
- ---------------
</TABLE>
* This Cross-Reference Table does not constitute part of the Declaration and
shall not affect the interpretation of any of its terms or provisions.
iv
<PAGE> 6
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
[ALLSTATE FINANCING III]
_______ __, ____
AMENDED AND RESTATED DECLARATION OF TRUST ("Declaration"),
dated and effective as of ______ __, ____, by the Trustees (as defined herein),
the Depositor (as defined herein) and by the holders, from time to time, of
undivided beneficial interests in the Trust to be issued pursuant to this
Declaration;
WHEREAS, the Trustees and the Depositor established [Allstate
Financing III] (the "Trust"), a trust under the Delaware Business Trust Act
pursuant to a Declaration of Trust dated as of August 21, 1996 (the "Original
Declaration") and a Certificate of Trust filed with the Secretary of State of
the State of Delaware on August 21, 1996, for the sole purpose of issuing and
selling certain securities representing undivided beneficial interests in the
assets of the Trust and investing the proceeds thereof in certain Debentures of
the Debenture Issuer;
WHEREAS, as of the date hereof, no interests in the Trust have
been issued;
WHEREAS, all of the Trustees and the Depositor, by this
Declaration, amend and restate each and every term and provision of the
Original Declaration; and
NOW, THEREFORE, it being the intention of the parties hereto
to continue the Trust as a business trust under the Business Trust Act and that
this Declaration constitute the governing instrument of such business trust,
the Trustees declare that all assets contributed to the Trust will be held in
trust for the benefit of the holders, from time to time, of the securities
representing undivided beneficial interests in the assets of the Trust issued
hereunder, subject to the provisions of this Declaration.
<PAGE> 7
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions.
Unless the context otherwise requires:
(a) Capitalized terms used in this Declaration but not
defined in the preamble above have the respective meanings assigned to them in
this Section 1.1;
(b) a term defined anywhere in this Declaration has the
same meaning throughout;
(c) all references to "the Declaration" or "this
Declaration" are to this Declaration as modified, supplemented or amended from
time to time;
(d) all references in this Declaration to Articles and
Sections and Annexes and Exhibits are to Articles and Sections of and Annexes
and Exhibits to this Declaration unless otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Declaration unless otherwise defined in this
Declaration or unless the context otherwise requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act or any successor rule thereunder.
"Agent" means any Paying Agent.
"Authorized Officer" of a Person means any Person that is
authorized to bind such Person.
"Book Entry Interest" means a beneficial interest in a Global
Certificate, ownership and transfers of which shall be maintained and made
through book entries by a Clearing Agency as described in Section 9.4.
"Business Day" means any day other than a Saturday or Sunday
or any day on which banking institutions in New York, New York or Boston,
Massachusetts are authorized or required by law to close.
2
<PAGE> 8
"Business Trust Act" means Chapter 38 of Title 12 of the
Delaware Code, 12 Del. Code Section 3801 et seq., as it may be amended from
time to time, or any successor legislation.
"Certificate" means a Common Security Certificate or a
Preferred Security Certificate.
"Clearing Agency" means an organization registered as a
"Clearing Agency" pursuant to Section 17A of the Exchange Act that is acting as
depositary for the Preferred Securities and in whose name or in the name of a
nominee of that organization shall be registered a Global Certificate and which
shall undertake to effect book entry transfers and pledges of the Preferred
Securities.
"Clearing Agency Participant" means a broker, dealer, bank,
other financial institution or other Person for whom from time to time the
Clearing Agency effects book entry transfers and pledges of securities
deposited with the Clearing Agency.
"Closing Date" means the "Closing Date" and each "Time of
Delivery" under the Underwriting Agreement.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Commission" means the Securities and Exchange Commission.
"Common Securities" and "Common Security" have the meanings
specified in Section 7.1.
["Common Securities Guarantee" means the guarantee agreement
to be dated as of ______ __, ____ of the Depositor in respect of the Common
Securities.]
"Common Security Certificate" means a definitive certificate
in fully registered form representing a Common Security substantially in the
form of Exhibit A-2.
"Company Indemnified Person" means (a) any Regular Trustee;
(b) any Affiliate of any Regular Trustee; (c) any officers, directors,
shareholders, members, partners, employees, representatives or agents of any
Regular Trustee; or (d) any officer, employee or agent of the Trust or its
Affiliates.
"Corporate Trust Office" means the office of the Property
Trustee at which the corporate trust business of the Property Trustee shall, at
any particular time, be principally administered, which office at the date of
execution of this Agreement is located at Two International Place, Boston,
Massachusetts 02110.
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"Covered Person" means: (a) any officer, director,
shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust's Affiliates; and (b) any Holder of Securities.
"Debenture Issuer" means The Allstate Corporation, a Delaware
corporation, in its capacity as issuer of the Debentures under the Indenture.
"Debenture Trustee" means State Street Bank and Trust Company,
a Massachusetts trust company, as trustee under the Indenture until a successor
is appointed thereunder, and thereafter means such successor trustee.
"Debentures" means the series of Debentures to be issued by
the Debenture Issuer under the Indenture to be held by the Property Trustee, a
specimen certificate for such series of Debentures being Exhibit B.
"Delaware Trustee" means Delaware Trust Capital Management,
Inc., a Delaware banking corporation, solely in its capacity as Delaware
Trustee of the Trust heretofore formed and continued hereunder and not in its
individual capacity, or its successor in interest in such capacity, or any
successor Delaware Trustee appointed as herein provided in Section 5.2.
"Definitive Preferred Security Certificates" has the meaning
set forth in Section 9.7.
"Depositor" means The Allstate Corporation, a Delaware
corporation, in its capacity as depositor of the Trust.
"Distribution" means a distribution payable to Holders of
Securities in accordance with Section 6.1.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
["Event of Default" in respect of the Securities means an
Event of Default (as defined in the Indenture) has occurred and is continuing
in respect of the Debentures.]
["Event of Default" means any one of the following events
(whatever the reasons for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) the occurrence of an Event of Default (as defined in
the Indenture); or
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(b) default by the Property Trustee in the payment of any
Distribution when it becomes due and payable, and continuation of such default
for a period of 30 days; or
(c) default by the Property Trustee in the payment of any
Redemption Price of any Trust Security when it becomes due and payable; or
(d) default in the performance, or breach, in any
material respect, of any covenant or warranty of the Trustees in this
Declaration (other than a covenant or warranty, a default in the performance of
which or the breach of which is dealt with in clause (b) or (c) above) and
continuation of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the defaulting Trustee or
Trustees by the Holders of at least 25% in aggregate liquidation preference of
the outstanding Preferred Securities a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder.]
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor legislation.
"Fiduciary Indemnified Person" has the meaning set forth in
Section 10.4(b).
"Global Certificate" has the meaning set forth in Section 9.4.
"Holder" means a Person in whose name a Certificate
representing a Security is registered, such Person being a beneficial owner
within the meaning of the Business Trust Act.
"Indemnified Person" means a Company Indemnified Person or a
Fiduciary Indemnified Person.
"Indenture" means the Subordinated Indenture, dated as of
_______ __, ____, between the Debenture Issuer and the Debenture Trustee, and
any indenture supplemental thereto pursuant to which the Debentures are to be
issued.
"Investment Company" means an "investment company" as defined
in the Investment Company Act.
"Investment Company Act" means the Investment Company Act of
1940, as amended from time to time, or any successor legislation.
["Investment Company Event" means the receipt by the Trust of
an Opinion of Counsel, rendered by a law firm having a recognized national tax
and securities practice, to the effect
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that, as a result of the occurrence of a change in law or regulation or a
change in interpretation or application of law or regulation by any legislative
body, court, governmental agency or regulatory authority (a "Change in
Investment Company Act Law"), the Trust is or will be considered an "investment
company" that is required to be registered under the Investment Company Act,
which Change in Investment Company Act Law becomes effective on or after the
date of original issuance of the Preferred Securities under this Declaration.]
"Legal Action" has the meaning set forth in Section 3.6(g).
"Majority in liquidation amount of the Securities" means,
except as provided in the terms of the Preferred Securities or by the Trust
Indenture Act, Holder(s) of outstanding Securities voting together as a single
class or, as the context may require, Holders of outstanding Preferred
Securities or Holders of outstanding Common Securities voting separately as a
class, who are the record owners of more than 50% of the aggregate liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all outstanding Securities
of the relevant class.
"Ministerial Action" has the meaning set forth in the terms of
the Securities as set forth in Annex I.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Declaration shall include:
(a) a statement that each officer signing the Certificate
has read the covenant or condition and the definitions relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering the
Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is necessary to
enable such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
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"Paying Agent" has the meaning specified in Section 7.2.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Securities" and "Preferred Security" have the
meanings specified in Section 7.1.
"Preferred Securities Guarantee" means the guarantee agreement
to be dated as of ______ __, ____, of the Depositor in respect of the Preferred
Securities.
"Preferred Security Beneficial Owner" means, with respect to a
Book Entry Interest, a Person who is the beneficial owner of such Book Entry
Interest, as reflected on the books of the Clearing Agency, or on the books of
a Person maintaining an account with such Clearing Agency (directly as a
Clearing Agency Participant or as an indirect participant, in each case in
accordance with the rules of such Clearing Agency).
"Preferred Security Certificate" means a certificate
representing a Preferred Security substantially in the form of Exhibit A- 1.
"Pricing Agreement" means the pricing agreement among the
Trust, the Debenture Issuer, and the underwriters designated by the Regular
Trustees with respect to the offer and sale of the Preferred Securities.
"Property Trustee" means State Street Bank and Trust Company,
a Massachusetts trust company, solely in its capacity as Property Trustee of
the Trust heretofore formed and continued hereunder and not in its individual
capacity, or its successor in interest in such capacity, or any successor
Property Trustee appointed as herein provided.
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
"Quorum" means a majority of the Regular Trustees or, if there
are only two Regular Trustees, both of them.
"Regular Trustee" has the meaning set forth in Section 5.1.
"Related Party" means, with respect to the Depositor, any
direct or indirect wholly owned subsidiary of the Depositor
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or any other Person that owns, directly or indirectly, 100% of the outstanding
voting securities of the Depositor.
"Responsible Officer" means, with respect to the Property
Trustee, any officer within the Corporate Trust Office of the Property Trustee,
including any vice-president, any assistant vice-president, any assistant
secretary, the treasurer, any assistant treasurer or other officer of the
Corporate Trust Office of the Property Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of that officer's knowledge of and
familiarity with the particular subject.
"Rule 3a-5" means Rule 3a-5 under the Investment Company Act.
"Securities" means the Common Securities and the Preferred
Securities.
"Securities Act" means the Securities Act of 1933, as amended
from time to time or any successor legislation.
["Special Event" has the meaning set forth in Annex I hereto.]
"Securities Guarantees" means the Common Securities Guarantee
and the Preferred Securities Guarantee.
["Super Majority" has the meaning set forth in Section
2.6(a)(ii).]
"Tax Event" has the meaning set forth in Annex I hereto.
["10% in liquidation amount of the Securities" means, except
as provided in the terms of the Preferred Securities or by the Trust Indenture
Act, Holder(s) of outstanding Securities voting together as a single class or,
as the context may require, Holders of outstanding Preferred Securities or
Holders of outstanding Common Securities voting separately as a class, who are
the record owners of 10% or more of the aggregate liquidation amount (including
the stated amount that would be paid on redemption, liquidation or otherwise,
plus accrued and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the relevant
class.]
"Treasury Regulations" means the income tax regulations,
including temporary and proposed regulations, promulgated under the Code by the
United States Treasury, as such regulations
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may be amended from time to time (including corresponding provisions of
succeeding regulations).
"Trustee" or "Trustees" means each Person who has signed this
Declaration as a trustee, so long as such Person shall continue in office in
accordance with the terms hereof, and all other Persons who may from time to
time be duly appointed, qualified and serving as Trustees in accordance with
the provisions hereof, and references herein to a Trustee or the Trustees shall
refer to such Person or Persons solely in their capacity as trustees hereunder.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended from time to time, or any successor legislation.
["Trust Property" means (a) the Debentures, (b) the rights of
the Property Trustee under the Securities Guarantees, (c) any cash on deposit
in, or owing to, the Property Trustee Account and (d) all proceeds and rights
in respect of the foregoing and any other property and assets for the time
being held or deemed to be held by the Property Trustee pursuant to the trusts
of this Declaration.]
"Underwriting Agreement" means the Underwriting Agreement for
the offering and sale of Preferred Securities in the form of Exhibit C.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.
(a) This Declaration is subject to the provisions of the
Trust Indenture Act that are required to be part of this Declaration and shall,
to the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which
is a Trustee for the purposes of the Trust Indenture Act.
(c) If and to the extent that any provision of this
Declaration limits, qualifies or conflicts with the duties imposed by Section
Section 310 to 317, inclusive, of the Trust Indenture Act, such imposed duties
shall control.
(d) The application of the Trust Indenture Act to this
Declaration shall not affect the nature of the Securities as equity securities
representing undivided beneficial interests in the assets of the Trust.
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SECTION 2.2 Lists of Holders of Securities.
(a) Each of the Depositor and the Regular Trustees on
behalf of the Trust shall provide the Property Trustee (i) within 14 days after
each record date for payment of Distributions, a list, in such form as the
Property Trustee may reasonably require, of the names and addresses of the
Holders of the Securities ("List of Holders") as of such record date; provided
that neither the Depositor nor the Regular Trustees on behalf of the Trust
shall be obligated to provide such List of Holders at any time the List of
Holders does not differ from the most recent List of Holders given to the
Property Trustee by the Depositor and the Regular Trustees on behalf of the
Trust, and (ii) at any other time, within 30 days of receipt by the Trust of a
written request for a List of Holders as of a date no more than 14 days before
such List of Holders is given to the Property Trustee. The Property Trustee
shall preserve, in as current a form as is reasonably practicable, all
information contained in Lists of Holders given to it or which it receives in
the capacity as Paying Agent (if acting in such capacity); provided that the
Property Trustee may destroy any List of Holders previously given to it on
receipt of a new List of Holders.
(b) The Property Trustee shall comply with its
obligations under Section Section 311(a), 311(b) and 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Property Trustee.
Within 60 days after [May 15] of each year, the Property
Trustee shall provide to the Holders of the Preferred Securities such reports
as are required by Section 313 of the Trust Indenture Act, if any, in the form
and in the manner provided by Section 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the requirements of Section 313(d) of
the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Depositor and the Regular Trustees on behalf of
the Trust shall provide to the Property Trustee such documents, reports and
information as required by Section 314 (if any) and the compliance certificate
required by Section 314 of the Trust Indenture Act in the form, in the manner
and at the times required by Section 314 of the Trust Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent.
Each of the Depositor and the Regular Trustees on behalf of
the Trust shall provide to the Property Trustee such evidence of compliance
with any conditions precedent, if any, provided for in this Declaration that
relate to any of the matters set forth in Section
314(c) of the Trust Indenture Act. Any
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certificate or opinion required to be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver.
(a) The Holders of a Majority in liquidation amount of
Preferred Securities may, by vote, on behalf of the Holders of all of the
Preferred Securities, waive any past Event of Default in respect of the
Preferred Securities and its consequences; provided that, if the underlying
Event of Default under the Indenture:
(i) is not waivable under the Indenture, the
Event of Default under this Declaration shall also not be
waivable; or
[(ii) requires the consent or vote of greater than
a majority in principal amount of the holders of the
Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under the Declaration may only
be waived by the vote of the Holders of at least the
proportion in liquidation amount of the Preferred Securities
that the relevant Super Majority represents of the aggregate
principal amount of the Debentures outstanding.]
The foregoing provisions of this Section 2.6(a) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Declaration and the
Securities, as permitted by the Trust Indenture Act. Upon such waiver, any such
default shall cease to exist, and any Event of Default with respect to the
Preferred Securities arising therefrom shall be deemed to have been cured, for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the Preferred
Securities or impair any right consequent thereon. Any waiver by the Holders of
the Preferred Securities of an Event of Default with respect to the Preferred
Securities shall also be deemed to constitute a waiver by the Holders of the
Common Securities of any such Event of Default with respect to the Common
Securities for all purposes of this Declaration without any further act, vote or
consent of the Holders of the Common Securities.
(b) The Holders of a Majority in liquidation amount of
the Common Securities may, by vote, on behalf of the Holders of all of the
Common Securities, waive any past Event of Default with respect to the Common
Securities and its consequences; provided that, if the underlying Event of
Default under the Indenture:
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(i) is not waivable under the Indenture,
except where the Holders of the Common Securities are deemed
to have waived such Event of Default under the Declaration as
provided below in this Section 2.6(b), the Event of Default
under the Declaration shall also not be waivable; or
[(ii) requires the consent or vote of a Super
Majority to be waived, except where the Holders of the Common
Securities are deemed to have waived such Event of Default
under the Declaration as provided below in this Section
2.6(b), the Event of Default under the Declaration may only be
waived by the vote of the Holders of at least the proportion
in liquidation amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal
amount of the Debentures outstanding;]
provided further, each Holder of Common Securities will be deemed to have
waived any such Event of Default and all Events of Default with respect to the
Common Securities and its consequences until all Events of Default with respect
to the Preferred Securities have been cured, waived or otherwise eliminated,
and until such Events of Default have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be acting solely on behalf
of the Holders of the Preferred Securities and only the Holders of the
Preferred Securities will have the right to direct the Property Trustee in
accordance with the terms of the Securities. The foregoing provisions of this
Section 2.6(b) shall be in lieu of Section Section 316(a)(1)(A) and
316(a)(1)(B) of the Trust Indenture Act and such Section Section 316(a)(1)(A)
and 316(a)(1)(B) of the Trust Indenture Act are hereby expressly excluded from
this Declaration and the Securities, as permitted by the Trust Indenture Act.
Subject to the foregoing provisions of this Section 2.6(b), upon such waiver,
any such default shall cease to exist and any Event of Default with respect to
the Common Securities arising therefrom shall be deemed to have been cured for
every purpose of this Declaration, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.
(c) A waiver of an Event of Default under the Indenture
by the Property Trustee at the direction of the Holders of the Preferred
Securities, constitutes a waiver of the corresponding Event of Default under
this Declaration. The foregoing provisions of this Section 2.6(c) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Declaration and the Securities, as permitted by the Trust Indenture Act.
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SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after the
occurrence of an Event of Default, transmit by mail, first class postage
prepaid, to the Holders of the Securities, notices of all defaults with respect
to the Securities actually known to a Responsible Officer of the Property
Trustee, unless such defaults have been cured before the giving of such notice
(the term "defaults" for the purposes of this Section 2.7(a) being hereby
defined to be an Event of Default as defined in the Indenture, not including
any periods of grace provided for therein and irrespective of the giving of any
notice provided therein); provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debentures or in
the payment of any sinking fund installment established for the Debentures, the
Property Trustee shall be protected in withholding such notice if and so long
as a Responsible Officer of the Property Trustee in good faith determines that
the withholding of such notice is in the interests of the Holders of the
Securities.
(b) The Property Trustee shall not be deemed to have
knowledge of any default except:
(i) a default under Sections [5.01(a) and
5.01(b)] of the Indenture; or
(ii) any default as to which [a Responsible
Officer of] the Property Trustee shall have received written
notice or of which a Responsible Officer of the Property
Trustee charged with the administration of the Declaration
shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named ["Allstate Financing I"], as such name may
be modified from time to time by the Regular Trustees following written notice
to the Holders of Securities. The Trust's activities may be conducted under
the name of the Trust or any other name deemed advisable by the Regular
Trustees.
SECTION 3.2 Office.
The address of the principal office of the Trust is c/o The
Allstate Corporation, 2775 Sanders Road, Northbrook, Illinois 60062. On ten
Business Days written notice to the Holders of Securities, the Regular Trustees
may designate another principal office.
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SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are (a) to
issue and sell Securities and use the proceeds from such sale to acquire the
Debentures, and (b) except as otherwise limited herein, to engage in only those
other activities necessary or incidental thereto. The Trust shall not borrow
money, issue debt or reinvest proceeds derived from investments, pledge any of
its assets, or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal
income tax purposes as a grantor trust.
SECTION 3.4 Authority.
Subject to the limitations provided in this Declaration and to
the specific duties of the Property Trustee, the Regular Trustees shall have
exclusive and complete authority to carry out the purposes of the Trust. An
action taken by the Regular Trustees in accordance with their powers shall
constitute the act of and serve to bind the Trust and an action taken by the
Property Trustee on behalf of the Trust in accordance with its powers shall
constitute the act of and serve to bind the Trust. In dealing with the
Trustees acting on behalf of the Trust, no person shall be required to inquire
into the authority of the Trustees to bind the Trust. Persons dealing with the
Trust are entitled to rely conclusively on the power and authority of the
Trustees as set forth in this Declaration.
SECTION 3.5 Title to Property of the Trust.
Except as provided in Section 3.8 with respect to the
Debentures and the Property Trustee Account or as otherwise provided in this
Declaration, legal title to all assets of the Trust shall be vested in the
Trust. The Holders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
SECTION 3.6 Powers and Duties of the Regular Trustees.
The Regular Trustees shall have the exclusive power, duty and
authority to cause the Trust to engage in the following activities:
(a) to issue and sell the Preferred Securities and the
Common Securities in accordance with this Declaration; provided, however, that
the Trust may issue no more than one series of Preferred Securities and no more
than one series of Common Securities, and, provided further, that there shall
be no interests in the Trust other than the Securities, and the issuance of
Securities shall be limited to a simultaneous issuance of both Preferred
Securities and Common Securities on each Closing Date;
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(b) in connection with the issuance and sale of the
Preferred Securities, at the direction of the Depositor, to:
(i) execute and file with the Commission the
registration statement on Form S-3 prepared by the Depositor,
including any amendments thereto, pertaining to the Preferred
Securities;
(ii) execute and file any documents prepared
by the Depositor, or take any acts as determined by the
Depositor to be necessary in order to qualify or register all
or part of the Preferred Securities in any State in which the
Depositor has determined to qualify or register such Preferred
Securities for sale;
(iii) execute and file an application, prepared by
the Depositor, to the New York Stock Exchange, Inc. or any
other national stock exchange or the Nasdaq Stock Market's
National Market for listing upon notice of issuance of any
Preferred Securities;
(iv) execute and file with the Commission a
registration statement on Form 8-A, including any amendments
thereto, prepared by the Depositor, relating to the
registration of the Preferred Securities under Section 12(b)
of the Exchange Act; and
(v) execute and enter into the Underwriting
Agreement and Pricing Agreement providing for the sale of the
Preferred Securities;
(c) to acquire the Debentures with the proceeds of the
sale of the Preferred Securities and the Common Securities; provided, however,
that the Regular Trustees shall cause legal title to the Debentures to be held
of record in the name of the Property Trustee for the benefit of the Holders of
the Preferred Securities and the Holders of Common Securities;
(d) to give the Depositor and the Property Trustee prompt
written notice of the occurrence of a Tax Event; provided that the Regular
Trustees shall consult with the Depositor and the Property Trustee before
taking or refraining from taking any Ministerial Action in relation to a Tax
Event;
(e) to establish a record date with respect to all
actions to be taken hereunder that require a record date be established,
including and with respect to, for the purposes of Section 316(c) of the Trust
Indenture Act, Distributions, voting rights, redemptions and exchanges, and to
issue relevant notices to the Holders of Preferred Securities and Holders of
Common Securities as to such actions and applicable record dates;
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(f) to take all actions and perform such duties as may be
required of the Regular Trustees pursuant to the terms of the Securities;
(g) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or demands of or
against the Trust ("Legal Action"), unless pursuant to Section 3.8(e), the
Property Trustee has the exclusive power to bring such Legal Action;
(h) to employ or otherwise engage employees and agents
(who may be designated as officers with titles) and managers, contractors,
advisors, and consultants and pay reasonable compensation for such services;
(i) to cause the Trust to comply with the Trust's
obligations under the Trust Indenture Act;
(j) to give the certificate required by Section
314(a)(4) of the Trust Indenture Act to the Property Trustee, which certificate
may be executed by any Regular Trustee;
(k) to incur expenses that are necessary or incidental to
carry out any of the purposes of the Trust;
(l) to act as, or appoint another Person to act as,
registrar and transfer agent for the Securities;
(m) to give prompt written notice to the Holders of the
Securities of any notice received from the Debenture Issuer of its election to
defer payments of interest on the Debentures by extending the interest payment
period under the Indenture;
(n) to execute all documents or instruments, perform all
duties and powers, and do all things for and on behalf of the Trust in all
matters necessary or incidental to the foregoing;
(o) to take all action that may be necessary or
appropriate for the preservation and the continuation of the Trust's valid
existence, rights, franchises and privileges as a statutory business trust
under the laws of the State of Delaware and of each other jurisdiction in which
such existence is necessary to protect the limited liability of the Holders of
the Preferred Securities or to enable the Trust to effect the purposes for
which the Trust was created;
(p) to take any action, not inconsistent with this
Declaration or with applicable law, that the Regular Trustees determine in
their discretion to be necessary or desirable in carrying out the activities of
the Trust as set out in this Section 3.6, including, but not limited to:
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(i) causing the Trust not to be deemed to be
an "investment company" required to be registered under the
Investment Company Act;
(ii) causing the Trust to be classified for
United States federal income tax purposes as a grantor trust;
and
(iii) cooperating with the Debenture Issuer to
ensure that the Debentures will be treated as indebtedness of
the Debenture Issuer for United States federal income tax
purposes;
provided that such action does not adversely affect the interests of Holders;
and
(q) to take all action necessary to cause all applicable
tax returns and tax information reports that are required to be filed with
respect to the Trust to be duly prepared and filed by the Regular Trustees, on
behalf of the Trust.
The Regular Trustees must exercise the powers set forth in
this Section 3.6 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Regular Trustees shall not take
any action that is inconsistent with the purposes and functions of the Trust
set forth in Section 3.3.
Subject to this Section 3.6, the Regular Trustees shall have
none of the powers or the authority of the Property Trustee set forth in
Section 3.8.
Any expenses incurred by the Regular Trustees pursuant to this
Section 3.6 shall be reimbursed by the Debenture Issuer.
SECTION 3.7 Prohibition of Actions by the Trust and the Trustees.
(a) The Trust shall not, and the Trustees (including the
Property Trustee) shall not, engage in any activity other than as required or
authorized by this Declaration. In particular, the Trust shall not and the
Trustees (including the Property Trustee) shall cause the Trust not to:
(i) invest any proceeds received by the Trust
from holding the Debentures, but shall distribute all such
proceeds to Holders of Securities pursuant to the terms of
this Declaration and of the Securities;
(ii) acquire any assets other than as
expressly provided herein;
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(iii) possess Trust property for other than a
Trust purpose;
(iv) make any loans or incur any indebtedness
other than loans represented by the Debentures;
(v) possess any power or otherwise act in
such a way as to vary the Trust assets or the terms of the
Securities in any way whatsoever;
(vi) issue any securities or other evidences
of beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(vii) other than as provided in this Declaration or
Annex I, (A) direct the time, method and place of exercising
any trust or power conferred upon the Debenture Trustee with
respect to the Debentures, (B) waive any past default that is
waivable under the Indenture, (C) exercise any right to
rescind or annul any declaration that the principal of all the
Debentures shall be due and payable, or (D) consent to any
amendment, modification or termination of the Indenture or the
Debentures where such consent shall be required unless the
Trust shall have received an opinion of counsel to the effect
that such modification will not cause more than an
insubstantial risk that for United States federal income tax
purposes the Trust will not be classified as a grantor trust.
SECTION 3.8 Powers and Duties of the Property Trustee.
(a) The legal title to the Debentures shall be owned by
and held of record in the name of the Property Trustee in trust for the benefit
of the Holders of the Securities. The right, title and interest of the
Property Trustee to the Debentures shall vest automatically in each Person who
may hereafter be appointed as Property Trustee in accordance with Section 5.7.
Such vesting and cessation of title shall be effective whether or not
conveyancing documents with regard to the Debentures have been executed and
delivered.
(b) The Property Trustee shall not transfer its right,
title and interest in the Debentures to the Regular Trustees or to the Delaware
Trustee (if the Property Trustee does not also act as Delaware Trustee).
(c) The Property Trustee shall:
(i) establish and maintain a segregated
non-interest bearing trust account (the "Property Trustee
Account") in the name of and under the exclusive con-
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trol of the Property Trustee on behalf of the Holders of the
Securities and, upon the receipt of payments of funds made in
respect of the Debentures held by the Property Trustee, deposit
such funds into the Property Trustee Account and make payments
to the Holders of the Preferred Securities and Holders of the
Common Securities from the Property Trustee Account in
accordance with Section 6.1. Funds in the Property Trustee
Account shall be held uninvested until disbursed in accordance
with this Declaration. The Property Trustee Account shall be
an account that is maintained with a banking institution[,
which institution may be the Property Trustee in its individual
capacity,] the rating on whose long-term unsecured indebtedness
is at least equal to the rating assigned to the Preferred
Securities by a "nationally recognized statistical rating
organization", as that term is defined for purposes of Rule
436(g)(2) under the Securities Act;
(ii) engage in such ministerial activities as
shall be necessary or appropriate to effect the redemption of
the Preferred Securities and the Common Securities to the
extent the Debentures are redeemed or mature; and
(iii) upon written notice of distribution issued by
the Regular Trustees in accordance with the terms of the
Securities, engage in such ministerial activities as shall be
necessary or appropriate to effect the distribution of the
Debentures to Holders of Securities upon the occurrence of
certain special events (as may be defined in the terms of the
Securities) arising from a change in law or a change in legal
interpretation or other specified circumstances pursuant to
the terms of the Securities.
(d) The Property Trustee shall take all actions and
perform such duties as may be specifically required of the Property Trustee
pursuant to the terms of the Securities.
(e) The Property Trustee shall take any Legal Action
which arises out of or in connection with an Event of Default of which a
Responsible Officer of the Property Trustee has actual knowledge or the
Property Trustee's duties and obligations under this Declaration or the Trust
Indenture Act; provided, however, that if a Declaration Event of Default has
occurred and is continuing and such event is attributable to the failure of the
Debenture Issuer to pay interest or principal on the Debentures on the date
such interest or principal is otherwise payable (or in the case of redemption,
on the redemption date), then a Holder of Preferred Securities may directly
institute a proceeding for enforcement of payment to such Holder of the
principal of or
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interest on the Debentures having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such Holder (a "Direct
Action") on or after the respective due date specified in the Debentures. In
connection with such Direct Action, the rights of the Holders of the Common
Securities will be subrogated to the rights of such Holder of Preferred
Securities to the extent of any payment made by the Debenture Issuer to such
Holder of Preferred Securities in such Direct Action. Except as provided in
the preceding sentences, the Holders of Preferred Securities will not be able
to exercise directly any other remedy available to the holders of the
Debentures.
(f) The Property Trustee shall not resign as a Trustee
unless either:
(i) the Trust has been completely liquidated
and the proceeds of the liquidation distributed to the Holders
of Securities pursuant to the terms of the Securities; or
(ii) a Successor Property Trustee has been
appointed and has accepted that appointment in accordance with
Section 5.7.
(g) The Property Trustee shall have the legal power to
exercise all of the rights, powers and privileges of a holder of Debentures
under the Indenture and, if an Event of Default actually known to a Responsible
Officer of the Property Trustee occurs and is continuing, the Property Trustee
shall, for the benefit of Holders of the Securities, enforce its rights as
holder of the Debentures subject to the rights of the Holders pursuant to the
terms of such Securities.
(h) The Property Trustee may authorize one or more
Persons (each, a "Paying Agent") to pay Distributions, redemption payments or
liquidation payments on behalf of the Trust with respect to all securities and
any such Paying Agent shall comply with Section 317(b) of the Trust Indenture
Act. Any Paying Agent may be removed by the Property Trustee at any time and a
successor Paying Agent or additional Paying Agents may be appointed at any time
by the Property Trustee.
(i) Subject to this Section 3.8, the Property Trustee
shall have none of the duties, liabilities, powers or the authority of the
Regular Trustees set forth in Section 3.6.
The Property Trustee must exercise the powers set forth in
this Section 3.8 in a manner that is consistent with the purposes and functions
of the Trust set out in Section 3.3, and the Property Trustee shall not take
any action that is inconsistent with the purposes and functions of the Trust
set out in Section 3.3.
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SECTION 3.9 Certain Duties and Responsibilities of the Property Trustee.
(a) The Property Trustee, before the occurrence of any
Event of Default and after the curing of all Events of Default that may have
occurred, shall undertake to perform only such duties as are specifically set
forth in this Declaration and no implied covenants shall be read into this
Declaration against the Property Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) of which a
Responsible Officer of the Property Trustee has actual knowledge, the Property
Trustee shall exercise such of the rights and powers vested in it by this
Declaration, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs.
(b) No provision of this Declaration shall be construed
to relieve the Property Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct, except that:
(i) prior to the occurrence of an Event of
Default and after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the
Property Trustee shall be determined solely by the
express provisions of this Declaration and the
Property Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Declaration, and no
implied covenants or obligations shall be read into
this Declaration against the Property Trustee; and
(B) in the absence of bad faith on the part
of the Property Trustee, the Property Trustee may
conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished
to the Property Trustee and conforming to the
requirements of this Declaration; but in the case of
any such certificates or opinions that by any
provision hereof are specifically required to be
furnished to the Property Trustee, the Property
Trustee shall be under a duty to examine the same to
determine whether or not they conform to the
requirements of this Declaration;
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(ii) the Property Trustee shall not be liable
for any error of judgment made in good faith by a Responsible
Officer of the Property Trustee, unless it shall be proved
that the Property Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Property Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
not less than a Majority in liquidation amount of the
Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under this Declaration;
(iv) no provision of this Declaration shall
require the Property Trustee to expend or risk its own funds
or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for
believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Declaration
or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to
it;
(v) the Property Trustee's sole duty with
respect to the custody, safe keeping and physical preservation
of the Debentures and the Property Trustee Account shall be to
deal with such property in a similar manner as the Property
Trustee deals with similar property for its own account,
subject to the protections and limitations on liability
afforded to the Property Trustee under this Declaration and
the Trust Indenture Act;
(vi) the Property Trustee shall have no duty
or liability for or with respect to the value, genuineness,
existence or sufficiency of the Debentures or the payment of
any taxes or assessments levied thereon or in connection
therewith;
(vii) the Property Trustee shall not be liable
for any interest on any money received by it except as it may
otherwise agree in writing with the Depositor. Money held by
the Property Trustee need not be segregated from other funds
held by it except in relation to the Property Trustee Account
maintained by the Property Trustee pursuant to Section 3.8(c)(i)
and except to the extent otherwise required by law; and
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(viii) the Property Trustee shall not be responsible
for monitoring the compliance by the Regular Trustees or the
Depositor with their respective duties under this Declaration,
nor shall the Property Trustee be liable for any default or
misconduct of the Regular Trustees or the Depositor.
SECTION 3.10 Certain Rights of Property Trustee.
(a) Subject to the provisions of Section 3.9:
(i) the Property Trustee may conclusively rely
and shall be fully protected in acting or refraining from
acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be
genuine and to have been signed, sent or presented by the
proper party or parties;
(ii) any direction or act of the Depositor or
the Regular Trustees contemplated by this Declaration shall be
sufficiently evidenced by an Officers' Certificate;
(iii) whenever in the administration of this
Declaration, the Property Trustee shall deem it desirable that
a matter be proved or established before taking, suffering or
omitting any action hereunder, the Property Trustee (unless
other evidence is herein specifically prescribed) may, in the
absence of bad faith on its part, request and conclusively
rely upon an Officers' Certificate which, upon receipt of such
request, shall be promptly delivered by the Depositor or the
Regular Trustees;
(iv) the Property Trustee shall have no duty
to see to any recording, filing or registration of any
instrument (including any financing or continuation statement
or any filing under tax or securities laws) or any
rerecording, refiling or registration thereof;
(v) the Property Trustee may consult with
counsel or other experts of its selection and the advice or
opinion of such counsel and experts with respect to legal
matters or advice within the scope of such experts' area of
expertise shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in accordance with such
advice or opinion, such counsel may be counsel to the
Depositor or any of its Affiliates, and may include any of its
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employees. The Property Trustee shall have the right at any
time to seek instructions concerning the administration of this
Declaration from any court of competent jurisdiction;
(vi) the Property Trustee shall be under no
obligation to exercise any of the rights or powers vested in
it by this Declaration at the request or direction of any
Holder, unless such Holder shall have provided to the Property
Trustee security and indemnity, reasonably satisfactory to the
Property Trustee, against the costs, expenses (including
attorneys' fees and expenses and the expenses of the Property
Trustee's agents, nominees or custodians) and liabilities that
might be incurred by it in complying with such request or
direction, including such reasonable advances as may be
requested by the Property Trustee provided, that, nothing
contained in this Section 3.10(a)(vi) shall be taken to
relieve the Property Trustee, upon the occurrence of an Event
of Default, of its obligation to exercise the rights and
powers vested in it by this Declaration;
(vii) the Property Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper
or document, but the Property Trustee, in its discretion, may
make such further inquiry or investigation into such facts or
matters as it may see fit;
(viii) the Property Trustee may execute any of the
trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents, custodians, nominees
or attorneys and the Property Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(ix) any action taken by the Property Trustee
or its agents hereunder shall bind the Trust and the Holders
of the Securities, and the signature of the Property Trustee
or its agents alone shall be sufficient and effective to
perform any such action and no third party shall be required
to inquire as to the authority of the Property Trustee to so
act or as to its compliance with any of the terms and
provisions of this Declaration, both of which shall be
conclusively evidenced by the Property Trustee's or its
agent's taking such action;
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(x) whenever in the administration of this
Declaration the Property Trustee shall deem it desirable to
receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the
Securities which instructions may only be given by the Holders
of the same proportion in liquidation amount of the Securities
as would be entitled to direct the Property Trustee under the
terms of the Securities in respect of such remedy, right or
action, (ii) may refrain from enforcing such remedy or right
or taking such other action until such instructions are
received, and (iii) shall be protected in conclusively relying
on or acting in accordance with such instructions;
(xi) except as otherwise expressly provided by
this Declaration, the Property Trustee shall not be under any
obligation to take any action that is discretionary under the
provisions of this Declaration; and
(xii) the Property Trustee shall not be liable
for any action taken, suffered, or omitted to be taken by it in
good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by
this Declaration.
(b) No provision of this Declaration shall be deemed to
impose any duty or obligation on the Property Trustee to perform any act or
acts or exercise any right, power, duty or obligation conferred or imposed on
it, in any jurisdiction in which it shall be illegal, or in which the Property
Trustee shall be unqualified or incompetent in accordance with applicable law,
to perform any such act or acts, or to exercise any such right, power, duty or
obligation. No permissive power or authority available to the Property Trustee
shall be construed to be a duty.
SECTION 3.11 Delaware Trustee.
Notwithstanding any other provision of this Declaration other
than Section 5.2, the Delaware Trustee shall not be entitled to exercise any
powers, nor shall the Delaware Trustee have any of the duties and
responsibilities of the Regular Trustees or the Property Trustee described in
this Declaration. Except as set forth in Section 5.2, the Delaware Trustee
shall be a Trustee for the sole and limited purpose of fulfilling the
requirements of Section 3807 of the Business Trust Act and shall have no
powers, duties or responsibilities whatsoever, except as expressly provided
herein or in the Business Trust Act.
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SECTION 3.12 Execution of Documents.
Unless otherwise determined by the Regular Trustees, and
except as otherwise required by the Business Trust Act, a majority of or, if
there are only two, any Regular Trustee or, if there is only one, such Regular
Trustee is authorized to execute on behalf of the Trust any documents that the
Regular Trustees have the power and authority to execute pursuant to Section
3.6.
SECTION 3.13 Not Responsible for Recitals or Issuance of Securities.
The recitals contained in this Declaration and the Securities
shall be taken as the statements of the Depositor, and the Trustees do not
assume any responsibility for their correctness. The Trustees make no
representations as to the value or condition of the property of the Trust or
any part thereof. The Trustees make no representations as to the validity or
sufficiency of this Declaration or the Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless terminated pursuant to the provisions of
Article VIII hereof, shall have existence for fifty-five (55) years from the
Closing Date.
SECTION 3.15 Mergers.
(a) The Trust may not consolidate, amalgamate, merge with
or into, or be replaced by, or convey, transfer or lease its properties and
assets substantially as an entirety to any corporation or other body, except as
described in Section 3.15(b) and (c).
(b) The Trust may, with the consent of the Regular
Trustees or, if there are more than two, a majority of the Regular Trustees and
without the consent of the Holders of the Securities, the Delaware Trustee or
the Property Trustee, consolidate, amalgamate, merge with or into, or be
replaced by a trust organized as such under the laws of any State; provided
that:
(i) such successor entity (the "Successor
Entity") either:
(A) expressly assumes all of the obligations of
the Trust under the Securities; or
(B) substitutes for the Securities other
securities having substantially the same terms as the
Preferred Securities (the "Successor Securities") so
long as the Successor
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Securities rank the same as the Preferred Securities
rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Debenture Issuer expressly
acknowledges a trustee of the Successor Entity that possesses
the same powers and duties as the Property Trustee as the
holder of the Debentures;
(iii) the Preferred Securities or any Successor
Securities are listed, or any Successor Securities will be
listed upon notification of issuance, on any national
securities exchange or with another organization on which the
Preferred Securities are then listed or quoted;
(iv) such merger, consolidation, amalgamation
or replacement does not cause the Preferred Securities
(including any Successor Securities) to be downgraded by any
nationally recognized statistical rating organization;
(v) such merger, consolidation, amalgamation or
replacement does not adversely affect the rights, preferences
and privileges of the Holders of the Securities (including
any Successor Securities) in any material respect (other than
with respect to any dilution of such Holders' interests in the
Preferred Securities as a result of such merger,
consolidation, amalgamation or replacement);
(vi) such Successor Entity has a purpose
identical to that of the Trust;
(vii) prior to such merger, consolidation,
amalgamation or replacement, the Depositor has received an
opinion of a nationally recognized independent counsel to the
Trust experienced in such matters to the effect that:
(A) such merger, consolidation, amalgamation
or replacement does not adversely affect the rights,
preferences and privileges of the Holders of the
Securities (including any Successor Securities) in
any material respect (other than with respect to any
dilution of the Holders' interest in the new entity);
and
(B) following such merger, consolidation,
amalgamation or replacement, neither
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the Trust nor the Successor Entity will be required to
register as an Investment Company;
(C) following such merger, consolidation,
amalgamation or replacement, the Trust (or the
Successor Entity) will continue to be classified as a
grantor trust for United States federal income tax
purposes; and
(viii) the Depositor guarantees the obligations
of such Successor Entity under the Successor Securities at
least to the extent provided by the Preferred Securities
Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall not,
except with the consent of Holders of 100% in liquidation amount of the
Securities, consolidate, amalgamate, merge with or into, or be replaced by any
other entity or permit any other entity to consolidate, amalgamate, merge with
or into, or replace it if such consolidation, amalgamation, merger or
replacement would cause the Trust or Successor Entity to be classified as other
than a grantor trust for United States federal income tax purposes.
ARTICLE IV
DEPOSITOR
SECTION 4.1 Depositor's Purchase of Common Securities.
On the Closing Date the Depositor will purchase all of the
Common Securities issued by the Trust, in an amount at least equal to [3%] of
the capital of the Trust, at the same time as the Preferred Securities are
sold.
SECTION 4.2 Responsibilities of the Depositor.
In connection with the issuance and sale of the Preferred
Securities, the Depositor shall have the exclusive right and responsibility to
engage in the following activities:
(a) to prepare for filing by the Trust with the
Commission a registration statement on Form S-3 in relation to the Preferred
Securities, including any amendments thereto;
(b) to determine the States in which to take appropriate
action to qualify or register for sale all or part of the Preferred Securities
and to do any and all such acts, other than actions which must be taken by the
Trust, and advise the Trust of actions it must take, and prepare for execution
and filing any documents to be executed and filed by the Trust, as the
Depositor
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deems necessary or advisable in order to comply with the applicable laws of any
such States;
(c) to prepare for filing by the Trust an application to
the New York Stock Exchange or any other national stock exchange or the Nasdaq
National Market for listing upon notice of issuance of any Preferred
Securities;
(d) to prepare for filing by the Trust with the
Commission a registration statement on Form 8-A relating to the registration of
the Preferred Securities under Section 12(b) of the Exchange Act, including any
amendments thereto; and
(e) to negotiate the terms of the Underwriting Agreement
and Pricing Agreement providing for the sale of the Preferred Securities.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees.
The number of Trustees initially shall be four (4), and:
(a) at any time before the issuance of any Securities,
the Depositor may, by written instrument, increase or decrease the number of
Trustees; and
(b) after the issuance of any Securities, the number of
Trustees may be increased or decreased by vote of the Holders of a majority in
liquidation amount of the Common Securities voting as a class at a meeting of
the Holders of the Common Securities; provided, however, that, the number of
Trustees shall in no event be less than two (2); provided further that (1) one
Trustee, in the case of a natural person, shall be a person who is a resident
of the State of Delaware or that, if not a natural person, is an entity which
has its principal place of business in the State of Delaware; (2) there shall
be at least one Trustee who is an employee or officer of, or is affiliated with
the Depositor (a "Regular Trustee"); and (3) one Trustee shall be the Property
Trustee for so long as this Declaration is required to qualify as an indenture
under the Trust Indenture Act, and such Trustee may also serve as Delaware
Trustee if it meets the applicable requirements.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee (the
"Delaware Trustee") shall be:
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(a) a natural person who is a resident of the State of
Delaware; or
(b) if not a natural person, an entity which has its
principal place of business in the State of Delaware, and otherwise meets the
requirements of applicable law;
provided that, if the Property Trustee has its principal place of business in
the State of Delaware and otherwise meets the requirements of applicable law,
then the Property Trustee shall also be the Delaware Trustee and Section 3.11
shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee which shall
act as Property Trustee which shall:
(i) not be an Affiliate of the Depositor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State or
Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Commission to act as an
institutional trustee under the Trust Indenture Act,
authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000), and subject to supervision or
examination by Federal, State, Territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then for the purposes of this Section
5.3(a)(ii), the combined capital and surplus of such
corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Property Trustee shall cease to be
eligible to so act under Section 5.3(a), the Property Trustee shall immediately
resign in the manner and with the effect set forth in Section 5.7(c).
(c) If the Property Trustee has or shall acquire any
"conflicting interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Property Trustee and the Holder of the Common Securities (as
if it were the obligor referred to in Section 310(b) of the Trust Indenture
Act) shall in all respects comply with the provisions of Section 310(b) of the
Trust Indenture Act.
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(d) The Preferred Securities Guarantee shall be deemed to
be specifically described in this Declaration for purposes of clause (i) of the
first provision contained in Section 310(b) of the Trust Indenture Act.
(e) The initial Property Trustee shall be:
State Street Bank and Trust Company
SECTION 5.4 Certain Qualifications of Regular Trustees and Delaware
Trustee Generally.
Each Regular Trustee and the Delaware Trustee (unless the
Property Trustee also acts as Delaware Trustee) shall be either a natural
person who is at least 21 years of age or a legal entity that shall act through
one or more Authorized Officers.
SECTION 5.5 Regular Trustees.
The initial Regular Trustees shall be:
____________________________
____________________________
____________________________
(a) Except as expressly set forth in this Declaration and
except if a meeting of the Regular Trustees is called with respect to any
matter over which the Regular Trustees have power to act, any power of the
Regular Trustees may be exercised by, or with the consent of, any one such
Regular Trustee.
(b) Unless otherwise determined by the Regular Trustees,
and except as otherwise required by the Business Trust Act or applicable law,
any Regular Trustee is authorized to execute on behalf of the Trust any
documents which the Regular Trustees have the power and authority to cause the
Trust to execute pursuant to Section 3.6; and
(c) a Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purposes of signing any documents which the
Regular Trustees have power and authority to cause the Trust to execute
pursuant to Section 3.6.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Delaware Trust Capital Management, Inc.
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SECTION 5.7 Appointment, Removal and Resignation of Trustees.
(a) Subject to Section 5.7(b), Trustees may be appointed
or removed without cause at any time except during an event of default:
(i) until the issuance of any Securities, by
written instrument executed by the Depositor; and
(ii) after the issuance of any Securities, by vote
of the Holders of a Majority in liquidation amount of the
Common Securities voting as a class at a meeting of the
Holders of the Common Securities.
(b) (i) The Trustee that acts as Property Trustee
shall not be removed in accordance with Section 5.7(a) until a
Successor Property Trustee has been appointed and has accepted
such appointment by written instrument executed by such
Successor Property Trustee and delivered to the Regular
Trustees and the Depositor; and
(ii) the Trustee that acts as Delaware Trustee
shall not be removed in accordance with this Section 5.7(a)
until a successor Trustee possessing the qualifications to act
as Delaware Trustee under Sections 5.2 and 5.4 (a "Successor
Delaware Trustee") has been appointed and has accepted such
appointment by written instrument executed by such Successor
Delaware Trustee and delivered to the Regular Trustees and the
Depositor.
(c) A Trustee appointed to office shall hold office until
his successor shall have been appointed or until his death, removal or
resignation. Any Trustee may resign from office (without need for prior or
subsequent accounting) by an instrument in writing signed by the Trustee and
delivered to the Depositor and the Trust, which resignation shall take effect
upon such delivery or upon such later date as is specified therein; provided,
however, that:
(i) No such resignation of the Trustee that
acts as the Property Trustee shall be effective:
(A) until a Successor Property Trustee has
been appointed and has accepted such appointment by
instrument executed by such Successor Property
Trustee and delivered to the Trust, the Depositor and
the resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds
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thereof distributed to the holders of the Securities;
and
(ii) no such resignation of the Trustee that
acts as the Delaware Trustee shall be effective until a
Successor Delaware Trustee has been appointed and has accepted
such appointment by instrument executed by such Successor
Delaware Trustee and delivered to the Trust, the Depositor and
the resigning Delaware Trustee.
(d) The Holders of the Common Securities shall use their
best efforts to promptly appoint a Successor Delaware Trustee or Successor
Property Trustee as the case may be if the Property Trustee or the Delaware
Trustee delivers an instrument of resignation in accordance with this Section
5.7.
(e) If no Successor Property Trustee or Successor
Delaware Trustee shall have been appointed and accepted appointment as provided
in this Section 5.7 within 60 days after delivery of an instrument of
resignation or removal, the Property Trustee or Delaware Trustee resigning or
being removed, as applicable, may petition any court of competent jurisdiction
for appointment of a Successor Property Trustee or Successor Delaware Trustee.
Such court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee or Successor
Delaware Trustee, as the case may be.
(f) No Property Trustee or Delaware Trustee shall be
liable for the acts or omissions to act of any Successor Property Trustee or
Successor Delaware Trustee, as the case may be.
SECTION 5.8 Vacancies among Trustees.
If a Trustee ceases to hold office for any reason and the
number of Trustees is not reduced pursuant to Section 5.1, or if the number of
Trustees is increased pursuant to Section 5.1, a vacancy shall occur. A
resolution certifying the existence of such vacancy by the Regular Trustees or,
if there are more than two, a majority of the Regular Trustees shall be
conclusive evidence of the existence of such vacancy. The vacancy shall be
filled with a Trustee appointed in accordance with Section 5.7.
SECTION 5.9 Effect of Vacancies.
The death, resignation, retirement, removal, bankruptcy,
dissolution, liquidation, incompetence or incapacity to perform the duties of a
Trustee shall not operate to annul the Trust. Whenever a vacancy in the number
of Regular Trustees shall occur, until such vacancy is filled by the
appointment of a Regular Trustee in accordance with Section 5.7, the Regular
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Trustees in office, regardless of their number, shall have all the powers
granted to the Regular Trustees and shall discharge all the duties imposed upon
the Regular Trustees by this Declaration.
SECTION 5.10 Meetings.
If there is more than one Regular Trustee, meetings of the
Regular Trustees shall be held from time to time upon the call of any Regular
Trustee. Regular meetings of the Regular Trustees may be held at a time and
place fixed by resolution of the Regular Trustees. Notice of any in-person
meetings of the Regular Trustees shall be hand delivered or otherwise delivered
in writing (including by facsimile, with a hard copy by overnight courier) not
less than 48 hours before such meeting. Notice of any telephonic meetings of
the Regular Trustees or any committee thereof shall be hand delivered or
otherwise delivered in writing (including by facsimile, with a hard copy by
overnight courier) not less than 24 hours before a meeting. Notices shall
contain a brief statement of the time, place and anticipated purposes of the
meeting. The presence (whether in person or by telephone) of a Regular Trustee
at a meeting shall constitute a waiver of notice of such meeting except where a
Regular Trustee attends a meeting for the express purpose of objecting to the
transaction of any activity on the ground that the meeting has not been
properly called or convened. Unless provided otherwise in this Declaration,
any action of the Regular Trustees may be taken at a meeting by vote of a
majority of the Regular Trustees present (whether in person or by telephone)
and eligible to vote with respect to such matter, provided that a Quorum is
present, or without a meeting by the unanimous written consent of the Regular
Trustees. In the event there is only one Regular Trustee, any and all action
of such Regular Trustee shall be evidenced by a written consent of such Regular
Trustee.
SECTION 5.11 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney
consistent with applicable law, delegate to any other natural person over the
age of 21 his or her power for the purpose of executing any documents
contemplated in Section 3.6, including any registration statement or amendment
thereto filed with the Commission, or making any other governmental filing; and
(b) the Regular Trustees shall have power to delegate
from time to time to such of their number or to officers of the Trust the doing
of such things and the execution of such instruments either in the name of the
Trust or the names of the Regular Trustees or otherwise as the Regular Trustees
may deem expedient, to the extent such delegation is not prohibited by
applicable law or contrary to the provisions of the Trust, as set forth herein.
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Section 5.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Property Trustee or the
Delaware Trustee, as the case may be, may be merged or converted or with which
either may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Property Trustee or the Delaware
Trustee, as the case may be, shall be a party, or any corporation succeeding to
all or substantially all the corporate trust business of the Property Trustee
or the Delaware Trustee, as the case may be, shall be the successor of the
Property Trustee or the Delaware Trustee, as the case may be, hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions.
Holders shall receive Distributions (as defined herein) in
accordance with the applicable terms of the relevant Holder's Securities.
Distributions shall be made on the Preferred Securities and the Common
Securities in accordance with the preferences set forth in their respective
terms. If and to the extent that the Debenture Issuer makes a payment of
interest (including [Compounded Interest (as defined in the Indenture), and]
Additional Interest (as defined in the Indenture)), premium and/or principal on
the Debentures held by the Property Trustee (the amount of any such payment
being a "Payment Amount"), the Property Trustee shall and is directed, to the
extent funds are avail- able for that purpose, to make a distribution (a
"Distribution") of the Payment Amount to Holders.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Regular Trustees shall on behalf of the Trust
issue one class of preferred securities representing undivided beneficial
interests in the assets of the Trust having such terms as are set forth in
Annex I (the "Preferred Securities") and one class of common securities
representing undivided beneficial interests in the assets of the Trust having
such terms as are set forth in Annex I (the "Common Securities.") The Trust
shall issue no securities or other interests in the assets of the Trust other
than the Preferred Securities and the Common Securities.
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(b) The Certificates shall be signed on behalf of the
Trust by a Regular Trustee. Such signature shall be the manual signature of
any present or any future Regular Trustee. In case any Regular Trustee of the
Trust who shall have signed any of the Securities shall cease to be such
Regular Trustee before the Certificates so signed shall be delivered by the
Trust, such Certificates nevertheless may be delivered as though the person who
signed such Certificates had not ceased to be such Regular Trustee; and any
Certificate may be signed on behalf of the Trust by such persons who, at the
actual date of execution of such Security, shall be the Regular Trustees of the
Trust, although at the date of the execution and delivery of the Declaration
any such person was not such a Regular Trustee Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation of any stock exchange on which Securities may be listed, or to
conform to usage.
(c) The consideration received by the Trust for the
issuance of the Securities shall constitute a contribution to the capital of
the Trust and shall not constitute a loan to the Trust.
(d) Upon issuance of the Securities as provided in this
Declaration, the Securities so issued shall be deemed to be validly issued,
fully paid and non-assessable.
(e) Every Person, by virtue of having become a Holder or
a Preferred Security Beneficial Owner in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.
SECTION 7.2 Paying Agent.
In the event that the Preferred Securities are not in
book-entry only form, the Trust shall maintain in the Borough of Manhattan,
City of New York, State of New York, an office or agency where the Preferred
Securities may be presented for payment ("Paying Agent). The Trust may appoint
the Paying Agent and may appoint one or more additional paying agents in such
other locations as it shall determine. The term "Paying Agent" includes any
additional paying agent. The Trust may change any Paying Agent without prior
notice to any Holder. The Trust shall notify the Property Trustee of the name
and address of any Agent not a party to this Declaration. If the Trust fails
to appoint or maintain another entity as Paying Agent, the Property Trustee
shall act as such. The Trust or any of its Affiliates may act as
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Paying Agent. The Trust shall initially act as Paying Agent for the Preferred
Securities and the Common Securities.
ARTICLE VIII
TERMINATION OF TRUST
SECTION 8.1 Termination of Trust.
(a) The Trust shall terminate:
(i) upon the bankruptcy of the Depositor;
(ii) upon the filing of a certificate of
dissolution or its equivalent with respect to the Depositor;
the filing of a certificate of cancellation with respect to
the Trust after having obtained the consent of a majority in
liquidation amount of the Securities voting together as a
single class to file such certificate of cancellation or the
revocation of the Depositor's charter and the expiration of 90
days after the date of revocation without a reinstatement
thereof;
(iii) upon the entry of a decree of judicial
dissolution of the Holder of the Common Securities, the
Depositor or the Trust;
(iv) when all of the Securities shall have
been called for redemption and the amounts necessary for
redemption thereof shall have been paid to the Holders in
accordance with the terms of the Securities;
(v) upon the occurrence and continuation of a
Special Event pursuant to which the Trust shall have been
dissolved in accordance with the terms of the Securities and
all of the Debentures endorsed thereon shall have been
distributed to the Holders of Securities in exchange for all
of the Securities; [or at the Depositor's direction (wholly
discretionary and optional) to the Property Trustee to
terminate and distribute the Debentures. However, in such
case, if the distribution of Debentures is deemed not
practical by the Property Trustee, the Property Trustee may
dissolve the Trust and liquidate the assets instead;] or
(vi) before the issuance of any Securities,
with the consent of all of the Regular Trustees and the
Depositor.
(b) As soon as is practicable after the occurrence of an
event referred to in Section 8.1(a), the Trustees shall file a
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certificate of cancellation with the Secretary of State of the State of
Delaware.
(c) The provisions of Section 3.9 and Article X shall
survive the termination of the Trust.
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.
(a) Securities may only be transferred, in whole or in
part, in accordance with the terms and conditions set forth in this Declaration
and in the terms of the Securities. Any transfer or purported transfer of any
Security not made in accordance with this Declaration shall be null and void.
(b) Subject to this Article IX, Preferred Securities
shall be freely transferable.
(c) The Depositor may not transfer the Common Securities.
SECTION 9.2 Transfer of Certificates.
The Regular Trustees shall provide for the registration of
Certificates and of transfers of Certificates, which will be effected without
charge but only upon payment (with such indemnity as the Regular Trustees may
require) in respect of any tax or other government charges that may be imposed
in relation to it. Upon surrender for registration of transfer of any
Certificate, the Regular Trustees shall cause one or more new Certificates to
be issued in the name of the designated transferee or transferees. Every
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the Regular Trustees
duly executed by the Holder or such Holder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer shall be
canceled by the Regular Trustees. A transferee of a Certificate shall be
entitled to the rights and subject to the obligations of a Holder hereunder
upon the receipt by such transferee of a Certificate. By acceptance of a
Certificate, each transferee shall be deemed to have agreed to be bound by this
Declaration.
SECTION 9.3 Deemed Security Holders.
The Trustees may treat the Person in whose name any
Certificate shall be registered on the books and records of the Trust as the
sole holder of such Certificate and of the Securities represented by such
Certificate for purposes of receiving
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Distributions and for all other purposes whatsoever and, accordingly, shall not
be bound to recognize any equitable or other claim to or interest in such
Certificate or in the Securities represented by such Certificate on the part of
any Person, whether or not the Trust shall have actual or other notice thereof.
SECTION 9.4 Book Entry Interests.
Unless otherwise specified in the terms of the Preferred
Securities, the Preferred Securities Certificates, on original issuance, will
be issued in the form of one or more, fully registered, global Preferred
Security Certificates (each a "Global Certificate"), to be delivered to DTC,
the initial Clearing Agency, by, or on behalf of, the Trust. Such Global
Certificates shall initially be registered on the books and records of the
Trust in the name of Cede & Co., the nominee of DTC, and no Preferred Security
Beneficial Owner will receive a definitive Preferred Security Certificate
representing such Preferred Security Beneficial Owner's interests in such
Global Certificates, except as provided in Section 9.7. Unless and until
definitive, fully registered Preferred Security Certificates (the "Definitive
Preferred Security Certificates") have been issued to the Preferred Security
Beneficial Owners pursuant to Section 9.7:
(a) the provisions of this Section 9.4 shall be in full
force and effect;
(b) the Trust and the Trustees shall be entitled to deal
with the Clearing Agency for all purposes of this Declaration (including the
payment of Distributions on the Global Certificates and receiving approvals,
votes or consents hereunder) as the Holder of the Preferred Securities and the
sole holder of the Global Certificates and shall have no obligation to the
Preferred Security Beneficial Owners;
(c) to the extent that the provisions of this Section 9.4
conflict with any other provisions of this Declaration, the provisions of this
Section 9.4 shall control; and
(d) the rights of the Preferred Security Beneficial
Owners shall be exercised only through the Clearing Agency and shall be limited
to those established by law and agreements between such Preferred Security
Beneficial Owners and the Clearing Agency and/or the Clearing Agency
Participants and receive and transmit payments of Distributions on the Global
Certificates to such Clearing Agency Participants. DTC will make book entry
transfers among the Clearing Agency Participants.
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SECTION 9.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Declaration, unless and until
Definitive Preferred Security Certificates shall have been issued to the
Preferred Security Beneficial Owners pursuant to Section 9.7, the Regular
Trustees shall give all such notices and communications specified herein to be
given to the Preferred Security Holders to the Clearing Agency, and shall have
no notice obligations to the Preferred Security Beneficial Owners.
SECTION 9.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depositary with respect to the Preferred Securities, the Regular
Trustees may, in their sole discretion, appoint a successor Clearing Agency
with respect to such Preferred Securities.
SECTION 9.7 Definitive Preferred Security Certificates.
If:
(a) a Clearing Agency elects to discontinue its services
as securities depositary with respect to the Preferred Securities and a
successor Clearing Agency is not appointed within 90 days after such
discontinuance pursuant to Section 9.6; or
(b) the Regular Trustees elect after consultation with
the Depositor to terminate the book entry system through the Clearing Agency
with respect to the Preferred Securities;
then:
(c) Definitive Preferred Security Certificates shall be
prepared by the Regular Trustees on behalf of the Trust with respect to such
Preferred Securities; and
(d) upon surrender of the Global Certificates by the
Clearing Agency, accompanied by registration instructions, the Regular Trustees
shall cause Definitive Preferred Security Certificates to be delivered to
Preferred Security Beneficial Owners in accordance with the instructions of the
Clearing Agency. Neither the Trustees nor the Trust shall be liable for any
delay in delivery of such instructions and each of them may conclusively rely
on and shall be protected in relying on, said instructions of the Clearing
Agency. The Definitive Preferred Security Certificates shall be printed,
lithographed or engraved or may be produced in any other manner as is
reasonably acceptable to the Regular Trustees, as evidenced by their execution
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thereof, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements as the Regular Trustees may deem
appropriate, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which Preferred Securities may be listed, or to conform to usage.
SECTION 9.8 Mutilated, Destroyed, Lost or Stolen Certificates.
If:
(a) any mutilated Certificates should be surrendered to
the Regular Trustees, or if the Regular Trustees shall receive evidence to
their satisfaction of the destruction, loss or theft of any Certificate; and
(b) there shall be delivered to the Regular Trustees such
security or indemnity as may be required by them to keep each of them harmless;
then, in the absence of notice that such Certificate shall have been acquired
by a bona fide purchaser, any Regular Trustee on behalf of the Trust shall
execute and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like denomination.
In connection with the issuance of any new Certificate under this Section 9.8,
the Regular Trustees may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicate Certificate issued pursuant to this Section shall constitute
conclusive evidence of an ownership interest in the relevant Securities, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability.
(a) Except as expressly set forth in this Declaration,
the Securities Guarantees and the terms of the Securities, the Depositor shall
not be:
(i) personally liable for the return of any
portion of the capital contributions (or any return thereon)
of the Holders of the Securities which shall be made solely
from assets of the Trust; and
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(ii) be required to pay to the Trust or to any
Holder of Securities any deficit upon dissolution of the Trust
or otherwise.
(b) The Holder of the Common Securities shall be liable
for all of the debts and obligations of the Trust (other than with respect to
the Securities) to the extent not satisfied out of the Trust's assets.
(c) Pursuant to Section 3803(a) of the Business Trust
Act, the Holders of the Preferred Securities 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.
SECTION 10.2 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person's gross
negligence or willful misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Trust and upon such information,
opinions, reports or statements presented to the Trust by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Trust, including information, opinions,
reports or statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and amount of
assets from which Distributions to Holders of Securities might properly be
paid.
SECTION 10.3 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Trust or to any other Covered Person, an Indemnified
Person acting under this Declaration shall not be liable to the Trust or to any
other Covered Person for its good faith reliance on the provisions of this
Declaration. The provisions of this Declaration, to the extent that they
restrict the duties and liabilities of an Indemnified Person otherwise existing
at law or in equity (other than the duties imposed on
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the Property Trustee under the Trust Indenture Act), are agreed by the parties
hereto to replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein:
(i) whenever a conflict of interest exists or
arises between any Covered Persons; or
(ii) whenever this Declaration or any other
agreement contemplated herein or therein provides that an
Indemnified Person shall act in a manner that is, or provides
terms that are, fair and reasonable to the Trust or any Holder
of Securities,
the Indemnified Person shall resolve such conflict of interest, take such
action or provide such terms, considering in each case the relative interest of
each party (including its own interest) to such conflict, agreement,
transaction or situation and the benefits and burdens relating to such
interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Indemnified Person, the resolution, action or term so made, taken
or provided by the Indemnified Person shall not constitute a breach of this
Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Declaration an Indemnified Person is
permitted or required to make a decision:
(i) in its "discretion" or under a grant of
similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including
its own interests, and shall have no duty or obligation to
give any consideration to any interest of or factors affecting
the Trust or any other Person; or
(ii) in its "good faith" or under another
express standard, the Indemnified Person shall act under such
express standard and shall not be subject to any other or
different standard imposed by this Declaration or by
applicable law.
SECTION 10.4 Indemnification.
(a) (i) The Debenture Issuer shall indemnify, to the full
extent permitted by law, any Company Indemnified Person who
was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal,
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administrative or investigative (other than an action by or in
the right of the Trust) by reason of the fact that he is or was
a Company Indemnified Person against expenses (including
attorneys' fees and expenses), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in
good faith and in a manner he reasonably believed to be in or
not opposed to the best interests of the Trust, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the
Company Indemnified Person did not act in good faith and in a
manner which he reasonably believed to be in or not opposed to
the best interests of the Trust, and, with respect to any
criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(ii) The Debenture Issuer shall indemnify, to the
full extent permitted by law, any Company Indemnified Person
who was or is a party or is threatened to be made a party to
any threatened, pending or completed action or suit by or in
the right of the Trust to procure a judgment in its favor by
reason of the fact that he is or was a Company Indemnified
Person against expenses (including attorneys' fees and
expenses) actually and reasonably incurred by him in
connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the
Trust and except that no such indemnification shall be made in
respect of any claim, issue or matter as to which such Company
Indemnified Person shall have been adjudged to be liable to
the Trust unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit
was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which such Court of Chancery or
such other court shall deem proper.
(iii) To the extent that a Company Indemnified
Person shall be successful on the merits or otherwise
(including dismissal of an action without prejudice or the
settlement of an action without admission of liability) in
defense of any action, suit or proceeding referred to in
paragraphs (i) and (ii) of this Section
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10.4(a), or in defense of any claim, issue or matter therein,
he shall be indemnified, to the full extent permitted by law,
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
(iv) Any indemnification under paragraphs (i) and
(ii) of this Section 10.4(a) (unless ordered by a court) shall
be made by the Debenture Issuer only as authorized in the
specific case upon a determination that indemnification of the
Company Indemnified Person is proper in the circumstances
because he has met the applicable standard of conduct set
forth in paragraphs (i) and (ii). Such determination shall be
made (1) by the Regular Trustees by a majority vote of a
quorum consisting of such Regular Trustees who were not
parties to such action, suit or proceeding, (2) if such a
quorum is not obtainable, or, even if obtainable, if a quorum
of disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion, or (3) by the Common
Security Holder of the Trust.
(v) Expenses (including attorneys' fees and
expenses) incurred by a Company Indemnified Person in
defending a civil, criminal, administrative or investigative
action, suit or proceeding referred to in paragraphs (i) and
(ii) of this Section 10.4(a) shall be paid by the Debenture
Issuer in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on
behalf of such Company Indemnified Person to repay such amount
if it shall ultimately be determined that he is not entitled
to be indemnified by the Debenture Issuer as authorized in
this Section 10.4(a). Notwithstanding the foregoing, no
advance shall be made by the Debenture Issuer if a
determination is reasonably and promptly made (i) by the
Regular Trustees by a majority vote of a quorum of
disinterested Regular Trustees, (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of
disinterested Regular Trustees so directs, by independent
legal counsel in a written opinion or (iii) the Common
Security Holder of the Trust, that, based upon the facts known
to the Regular Trustees, counsel or the Common Security Holder
at the time such determination is made, such Company
Indemnified Person acted in bad faith or in a manner that such
person did not believe to be in or not opposed to the best
interests of the Trust, or, with respect to any criminal
proceeding, that such Company Indemnified Person believed or
had reasonable cause to believe his conduct was unlawful. In
no event shall any advance be made in instances where the
Regular Trustees, independent legal coun-
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sel or Common Security Holder reasonably determine that such
person deliberately breached his duty to the Trust or its
Common or Preferred Security Holders.
(vi) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of
this Section 10.4(a) shall not be deemed exclusive of any
other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement,
vote of stockholders or disinterested directors of the
Debenture Issuer or Preferred Security Holders of the Trust or
otherwise, both as to action in his official capacity and as
to action in another capacity while holding such office. All
rights to indemnification under this Section 10.4(a) shall be
deemed to be provided by a contract between the Debenture
Issuer and each Company Indemnified Person who serves in such
capacity at any time while this Section 10.4(a) is in effect.
Any repeal or modification of this Section 10.4(a) shall not
affect any rights or obligations then existing.
(vii) The Debenture Issuer or the Trust may purchase
and maintain insurance on behalf of any person who is or was a
Company Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the
Debenture Issuer would have the power to indemnify him against
such liability under the provisions of this Section 10.4(a).
(viii) For purposes of this Section 10.4(a),
references to "the Trust" shall include, in addition to the
resulting or surviving entity, any constituent entity
(including any constituent of a constituent) absorbed in a
consolidation or merger, so that any person who is or was a
director, trustee, officer or employee of such constituent
entity, or is or was serving at the request of such
constituent entity as a director, trustee, officer, employee
or agent of another entity, shall stand in the same position
under the provisions of this Section 10.4(a) with respect to
the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence
had continued.
(ix) The indemnification and advancement of expenses
provided by, or granted pursuant to, this Section 10.4(a)
shall, unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a Company
Indemnified Person and shall
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inure to the benefit of the heirs, executors and administrators
of such a person.
(b) The Debenture Issuer agrees to indemnify the (i)
Property Trustee, (ii) the Delaware Trustee [(in its individual capacity)],
(iii) any Affiliate of the Property Trustee and the Delaware Trustee, and (iv)
any officers, directors, shareholders, members, partners, employees,
representatives, custodians, nominees or agents of the Property Trustee and the
Delaware Trustee (each of the Persons in (i) through (iv) being referred to as
a "Fiduciary Indemnified Person") for, and to hold each Fiduciary Indemnified
Person harmless against, any and all loss, liability, damage, claim or expense
including taxes (other than taxes based on the income of such Fiduciary
Indemnified Person) incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration or the
trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against or
investigating any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 10.4(b) shall survive the satisfaction
and discharge of this Declaration.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Depositor, the Delaware Trustee and
the Property Trustee may engage in or possess an interest in other business
ventures of any nature or description, independently or with others, similar or
dissimilar to the business of the Trust, and the Trust and the Holders of
Securities shall have no rights by virtue of this Declaration in and to such
independent ventures or the income or profits derived therefrom, and the
pursuit of any such venture, even if competitive with the business of the
Trust, shall not be deemed wrongful or improper. No Covered Person, the
Depositor, the Delaware Trustee, or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Depositor, the Delaware Trustee
and the Property Trustee shall have the right to take for its own account
(individually or as a partner or fiduciary) or to recommend to others any such
particular investment or other opportunity. Any Covered Person, the Delaware
Trustee and the Property Trustee may engage or be interested in any financial
or other transaction with the Depositor or any Affiliate of the Depositor, or
may act as depositary for, trustee or agent for, or act on any committee or
body of holders of, securities or other obligations of the Depositor or its
Affiliates.
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ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year.
The fiscal year ("Fiscal Year") of the Trust shall be the
calendar year, or such other year as is required by the Code.
SECTION 11.2 Certain Accounting Matters.
(a) At all times during the existence of the Trust, the
Regular Trustees shall keep, or cause to be kept, full books of account,
records and supporting documents, which shall reflect in reasonable detail,
each transaction of the Trust. The books of account shall be maintained on the
accrual method of accounting, in accordance with generally accepted accounting
principles, consistently applied. The Trust shall use the accrual method of
accounting for United States federal income tax purposes. The books of account
and the records of the Trust shall be examined by and reported upon as of the
end of each Fiscal Year of the Trust by a firm of independent certified public
accountants selected by the Regular Trustees.
(b) The Regular Trustees shall cause to be prepared and
delivered to each of the Holders of Securities, within [90] days after the end
of each Fiscal Year of the Trust, annual financial statements of the Trust,
including a balance sheet of the Trust as of the end of such Fiscal Year, and
the related statements of income or loss;
(c) The Regular Trustees shall cause to be duly prepared
and delivered to each of the Holders of Securities, any annual United States
federal income tax information statement, required by the Code, containing such
information with regard to the Securities held by each Holder as is required by
the Code and the Treasury Regulations. Notwithstanding any right under the
Code to deliver any such statement at a later date, the Regular Trustees shall
endeavor to deliver all such statements within 30 days after the end of each
Fiscal Year of the Trust.
(d) The Regular Trustees shall cause to be duly prepared
and filed with the appropriate taxing authority, an annual United States
federal income tax return, on a Form 1041 or such other form required by United
States federal income tax law, and any other annual income tax returns required
to be filed by the Regular Trustees on behalf of the Trust with any state or
local taxing authority.
SECTION 11.3 Banking.
The Trust shall maintain one or more bank accounts in the name
and for the sole benefit of the Trust; provided, howev-
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er, that all payments of funds in respect of the Debentures held by the
Property Trustee shall be made directly to the Property Trustee Account and no
other funds of the Trust shall be deposited in the Property Trustee Account.
The sole signatories for such accounts shall be designated by the Regular
Trustees; provided, however, that the Property Trustee shall designate the
signatories for the Property Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Regular Trustees shall comply with all
withholding requirements under United States federal, state and local law. The
Trust shall request, and the Holders shall provide to the Trust, such forms or
certificates as are necessary to establish an exemption from withholding with
respect to each Holder, and any representations and forms as shall reasonably
be requested by the Trust to assist it in determining the extent of, and in
fulfilling, its withholding obligations. The Regular Trustees shall file
required forms with applicable jurisdictions and, unless an exemption from
withholding is properly established by a Holder, shall remit amounts withheld
with respect to the Holder to applicable jurisdictions. To the extent that the
Trust is required to withhold and pay over any amounts to any authority with
respect to distributions or allocations to any Holder, the amount withheld
shall be deemed to be a distribution in the amount of the withholding to the
Holder. In the event of any claimed over withholding, Holders shall be limited
to an action against the applicable jurisdiction. If the amount required to be
withheld was not withheld from actual Distributions made, the Trust may reduce
subsequent Distributions by the amount of such withholding.
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments.
(a) Except as otherwise provided in this Declaration or
by any applicable terms of the Securities, this Declaration may only be amended
by a written instrument approved and executed by:
(i) the Regular Trustees (or, if there are
more than two Regular Trustees a majority of the Regular
Trustees);
(ii) if the amendment affects the rights,
powers, duties, obligations or immunities of the Property
Trustee, the Property Trustee; and
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(iii) if the amendment affects the rights, powers,
duties, obligations or immunities of the Delaware Trustee, the
Delaware Trustee;
(b) no amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless, in the case of any proposed
amendment, the Property Trustee shall have first received an
Officers' Certificate from each of the Trust and the Depositor
that such amendment is permitted by, and conforms to, the
terms of this Declaration (including the terms of the
Securities);
(ii) unless, in the case of any proposed
amendment which affects the rights, powers, duties,
obligations or immunities of the Property Trustee, the
Property Trustee shall have first received:
(A) an Officers' Certificate from each of the
Trust and the Depositor that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(B) an opinion of counsel (who may be counsel
to the Depositor or the Trust) that such amendment is
permitted by, and conforms to, the terms of this
Declaration (including the terms of the Securities);
and
(iii) to the extent the result of such amendment
would be to:
(A) cause the trust to fail to continue to be
classified for purposes of United States federal
income taxation as a grantor trust;
(B) reduce or otherwise adversely affect the
powers of the Property Trustee in contravention of
the Trust Indenture Act; or
(C) cause the Trust to be deemed to be an
Investment Company required to be registered under
the Investment Company Act;
(c) at such time after the Trust has issued any
Securities that remain outstanding, any amendment that would adversely affect
the rights, privileges or preferences of any Holder of Securities may be
effected only with such additional requirements as may be set forth in the
terms of such Securities;
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(d) Section 9.1(c) and this Section 12.1 shall not be
amended without the consent of all of the Holders of the Securities;
(e) Article IV shall not be amended without the consent
of the Holders of a Majority in liquidation amount of the Common Securities;
(f) the rights of the holders of the Common Securities
under Article V to increase or decrease the number of, and appoint and remove
Trustees shall not be amended without the consent of the Holders of a Majority
in liquidation amount of the Common Securities; and
(g) notwithstanding Section 12.1(c), this Declaration may
be amended by the Depositor and the Trustees without the consent of the Holders
of the Securities to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in this
Declaration that may be defective or inconsistent with any
other provision of this Declaration;
(iii) add to the covenants, restrictions or
obligations of the Depositor;
(iv) conform to any change in Rule 3a-5 or written
change in interpretation or application of Rule 3a-5 by any
legislative body, court, government agency or regulatory
authority which amendment does not have a material adverse
effect on the right, preferences or privileges of the Holders;
and
(v) modify, eliminate and add to any provision of
this Declaration to such extent as may be necessary.
SECTION 12.2 Meetings of the Holders of Securities; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Regular Trustees (or as provided in the terms
of the Securities) to consider and act on any matter on which Holders of such
class of Securities are entitled to act under the terms of this Declaration,
the terms of the Securities or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading. The Regular Trustees
shall call a meeting of the Holders of such class if directed to do so by the
Holders of at least 10% in liquidation amount of such class of Securities.
Such direction shall be given by delivering to the Regular Trustees one or more
calls in a writing stating that the signing Holders of Securities wish to call
a
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meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Holders of Securities calling a meeting shall specify in
writing the Security Certificates held by the Holders of Securities exercising
the right to call a meeting and only those Securities specified shall be
counted for purposes of determining whether the required percentage set forth
in the second sentence of this paragraph has been met.
(b) Except to the extent otherwise provided in the terms
of the Securities, the following provisions shall apply to meetings of Holders
of Securities:
(i) notice of any such meeting shall be given
to all the Holders of Securities having a right to vote
thereat at least 7 days and not more than 60 days before the
date of such meeting. Whenever a vote, consent or approval of
the Holders of Securities is permitted or required under this
Declaration or the rules of any stock exchange on which the
Preferred Securities are listed or admitted for trading, such
vote, consent or approval may be given at a meeting of the
Holders of Securities. Any action that may be taken at a
meeting of the Holders of Securities may be taken without a
meeting if a consent in writing setting forth the action so
taken is signed by the Holders of Securities owning not less
than the minimum amount of Securities in liquidation amount
that would be necessary to authorize or take such action at a
meeting at which all Holders of Securities having a right to
vote thereon were present and voting. Prompt notice of the
taking of action without a meeting shall be given to the
Holders of Securities entitled to vote who have not consented
in writing. The Regular Trustees may specify that any written
ballot submitted to the Security Holder for the purpose of
taking any action without a meeting shall be returned to the
Trust within the time specified by the Regular Trustees;
(ii) each Holder of a Security may authorize
any Person to act for it by proxy on all matters in which a
Holder of Securities is entitled to participate, including
waiving notice of any meeting, or voting or participating at a
meeting. No proxy shall be valid after the expiration of 11
months from the date thereof unless otherwise provided in the
proxy. Every proxy shall be revocable at the pleasure of the
Holder of Securities executing it. Except as otherwise
provided herein, all matters relating to the giving, voting or
validity of proxies shall be governed by the General
Corporation Law of the State of Delaware relating to proxies,
and judicial interpretations thereunder, as if the Trust were
a Delaware corporation and
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the Holders of the Securities were stockholders of a Delaware
corporation;
(iii) each meeting of the Holders of the
Securities shall be conducted by the Regular Trustees or by
such other Person that the Regular Trustees may designate; and
(iv) unless the Business Trust Act, this
Declaration, the terms of the Securities, the Trust Indenture
Act or the listing rules of any stock exchange on which the
Preferred Securities are then listed or trading, otherwise
provides, the Regular Trustees, in their sole discretion,
shall establish all other provisions relating to meetings of
Holders of Securities, including notice of the time, place or
purpose of any meeting at which any matter is to be voted on
by any Holders of Securities, waiver of any such notice,
action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by proxy
or any other matter with respect to the exercise of any such
right to vote.
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property Trustee.
The Trustee that acts as initial Property Trustee represents
and warrants to the Trust and to the Depositor at the date of this Declaration,
and each Successor Property Trustee represents and warrants to the Trust and
the Depositor at the time of the Successor Property Trustee's acceptance of its
appointment as Property Trustee that:
(a) the Property Trustee is a Massachusetts trust company
with trust powers and authority to execute and deliver, and to carry out and
perform its obligations under the terms of, this Declaration;
(b) the execution, delivery and performance by the
Property Trustee of the Declaration has been duly authorized by all necessary
corporate action on the part of the Property Trustee. The Declaration has been
duly executed and delivered by the Property Trustee, and it constitutes a
legal, valid and binding obligation of the Property Trustee, enforceable
against it in accordance with its terms, subject to applicable bankruptcy,
reorganization, moratorium, insolvency, and other similar laws affecting
creditors' rights generally and to general principles
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of equity and the discretion of the court (regardless of whether the
enforcement of such remedies is considered in a proceeding in equity or at
law);
(c) the execution, delivery and performance of this
Declaration by the Property Trustee does not conflict with or constitute a
breach of the charter or by-laws of the Property Trustee; and
(d) no consent, approval or authorization of, or
registration with or notice to, any Massachusetts or federal banking authority
is required for the execution, delivery or performance by the Property Trustee,
of this Declaration.
SECTION 13.2 Representations and Warranties of Delaware Trustee.
The Trustee that acts as initial Delaware Trustee represents
and warrants to the Trust and to the Depositor at the date of this Declaration,
and each Successor Delaware Trustee represents and warrants to the Trust and
the Depositor at the time of the Successor Delaware Trustee's acceptance of its
appointment as Delaware Trustee that:
(a) The Delaware Trustee is duly organized, validly
existing and in good standing under the laws of the State of Delaware, with
trust power and authority to execute and deliver, and to carry out and perform
its obligations under the terms of, this Declaration.
(b) The Delaware Trustee has been authorized to perform
its obligations under the Certificate of Trust and this Declaration. This
Declaration under Delaware law constitutes a legal, valid and binding
obligation of the Delaware Trustee, enforceable against it in accordance with
its terms, subject to applicable bankruptcy, reorganization, moratorium,
insolvency, and other similar laws affecting creditors' rights generally and to
general principles of equity and the discretion of the court (regardless of
whether the enforcement of such remedies is considered in a proceeding in
equity or at law).
(c) No consent, approval or authorization of, or
registration with or notice to, any banking authority of the State of Delaware
or any federal banking authority governing the banking or trust powers of the
Delaware Trustee is required for the execution, delivery or performance by the
Delaware Trustee, of this Declaration.
(d) The Delaware Trustee is a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware.
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
All notices provided for in this Declaration shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by first class mail, as follows:
(a) if given to the Trust, in care of the Regular
Trustees at the Trust's mailing address set forth below (or such other address
as the Trust may give notice of to the Holders of the Securities):
[Allstate Financing I]
c/o The Allstate Corporation
2775 Sanders Road
Northbrook, Illinois 60062
Attention:
Telecopy:
(b) if given to the Delaware Trustee, at the mailing
address set forth below (or such other address as Delaware Trustee may give
notice of to the Holders of the Securities):
Delaware Trust Capital
Management, Inc.
900 Market Street, 2nd Floor
Wilmington, Delaware 19801
Attention: Corporate Trust Administration/
Richard N. Smith
Telecopy:
(c) if given to the Property Trustee, at the Property
Trustee's mailing address set forth below (or such other address as the
Property Trustee may give notice of to the Holders of the Securities):
State Street Bank and
Trust Company
Two International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Department
Telecopy:
(d) if given to the Holder of the Common Securities, at
the mailing address of the Depositor set forth below (or such other address as
the Holder of the Common Securities may give notice to the Trust):
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The Allstate Corporation
2775 Sanders Road
Northbrook, Illinois 60062
Attention:
Telecopy:
(e) if given to any other Holder, at the address set
forth on the books and records of the Trust.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 14.2 Governing Law.
This Declaration and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws of the State of
Delaware and all rights and remedies shall be governed by such laws without
regard to principles of conflict of laws.
SECTION 14.3 Intention of the Parties.
It is the intention of the parties hereto that the Trust be
classified for United States federal income tax purposes as a grantor trust.
The provisions of this Declaration shall be interpreted to further this
intention of the parties.
SECTION 14.4 Headings.
Headings contained in this Declaration are inserted for
convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.
SECTION 14.5 Successors and Assigns.
Whenever in this Declaration any of the parties hereto is
named or referred to, the successors and assigns of such party shall be deemed
to be included, and all covenants and agreements in this Declaration by the
Depositor and the Trustees shall bind and inure to the benefit of their
respective successors and assigns, whether so expressed.
SECTION 14.6 Partial Enforceability.
If any provision of this Declaration, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Declaration, or the applica-
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tion of such provision to persons or circumstances other than those to which it
is held invalid, shall not be affected thereby.
SECTION 14.7 Counterparts.
This Declaration may contain more than one counterpart of the
signature page and this Declaration may be executed by the affixing of the
signature of each of the Trustees to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed as of the day and year first above written.
__________________________________
______________, as Regular Trustee
__________________________________
______________, as Regular Trustee
__________________________________
______________, as Regular Trustee
DELAWARE TRUST CAPITAL
MANAGEMENT, INC.,
as Delaware Trustee
By:_______________________________
Name:
Title:
STATE STREET BANK AND
TRUST COMPANY,
as Property Trustee
By:_______________________________
Name:
Title:
THE ALLSTATE CORPORATION,
as Depositor
By:_______________________________
Name:
Title:
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ANNEX I
TERMS OF
_____% _________ PREFERRED SECURITIES
_____% _________ COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of _______ __, ____ (as amended from time to
time, the "Declaration"), the designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities and the
Common Securities are set out below (each capitalized term used but not defined
herein has the meaning set forth in the Declaration or, if not defined in such
Declaration, as defined in the Prospectus referred to below):
1. Designation and Number.
(a) Preferred Securities. __________ Preferred
Securities of the Trust with an aggregate liquidation amount with respect to
the assets of the Trust of _____________________ dollars ($__________) and a
liquidation amount with respect to the assets of the Trust of $___ per
preferred security, are hereby designated for the purposes of identification
only as "_____% __________ Preferred Securities(SM) ("______"(SM))" (the
"Preferred Securities"). The Preferred Security Certificates evidencing the
Preferred Securities shall be substantially in the form of Exhibit A-1 to the
Declaration, with such changes and additions thereto or deletions therefrom as
may be required by ordinary usage, custom or practice or to conform to the rules
of any stock exchange on which the Preferred Securities are listed.
(b) Common Securities. __________ Common
Securities of the Trust with an aggregate liquidation amount with respect to
the assets of the Trust of ______________________ dollars ($__________) and a
liquidation amount with respect to the assets of the Trust of $___ per common
security, are hereby designated for the purposes of identification only as
"_____% ____________ Common Securities" (the "Common Securities"). The Common
Security Certificates evidencing the Common Securities shall be substantially
in the form of Exhibit A-2 to the Declaration, with such changes and additions
thereto or deletions therefrom as may be required by ordinary usage, custom or
practice.
2. Distributions.
(a) Distributions payable on each Security will be
fixed at a rate per annum of _____% (the "Coupon Rate") of the
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stated liquidation amount of $___ per Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarter will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Property Trustee and to the extent the Property Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
(b) Distributions on the Securities will be
cumulative, will accrue from ______ __, ____, and will be payable quarterly in
arrears, on March 31, June 30, September 30, and December 31 of each year,
commencing on ______ __, ____, except as otherwise described below. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters or extending
beyond the maturity date of the Debentures (each an "Extension Period"), during
which Extension Period no interest shall be due and payable on the Debentures;
provided that no Extension Period shall last beyond the date of maturity of the
Debentures. As a consequence of such deferral, Distributions will also be
deferred. Despite such deferral, quarterly Distributions will continue to
accrue with interest thereon (to the extent permitted by applicable law) at the
Coupon Rate compounded quarterly during any such Extension Period. Prior to
the termination of any such Extension Period, the Debenture Issuer may further
extend such Extension Period; provided that such Extension Period together with
all such previous and further extensions thereof may not exceed 20 consecutive
quarters or extend beyond the maturity of the Debentures. Payments of accrued
Distributions will be payable to Holders as they appear on the books and
records of the Trust on the first record date after the end of the Extension
Period. Upon the termination of any Extension Period and the payment of all
amounts then due, the Debenture Issuer may commence a new Extension Period,
subject to the above requirements.
(c) Distributions on the Securities will be
payable to the Holders thereof as they appear on the books and records of the
Trust on the relevant record dates. While the Preferred Securities remain in
book-entry only form, the relevant record dates shall be one Business Day prior
to the relevant payment dates which payment dates correspond to the interest
payment dates on the Debentures. Subject to any applicable laws
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and regulations and the provisions of the Declaration, each such payment in
respect of the Preferred Securities will be made as described under the heading
"Description of the Preferred Securities -- Book-Entry Only Issuance -- The
Depository Trust Company" in the Prospectus Supplement dated ______ __, ____,
to the Prospectus dated ______ __, ____ (together, the "Prospectus"), of the
Trust included in the Registration Statement on Form S-3 of the Depositor, the
Trust and certain other business trusts. The relevant record dates for the
Common Securities shall be the same record date as for the Preferred
Securities. If the Preferred Securities shall not continue to remain in
book-entry only form, the relevant record dates for the Preferred Securities,
shall conform to the rules of any securities exchange on which the securities
are listed and, if none, shall be selected by the Regular Trustees, which dates
shall be at least one Business Day but less than 60 Business Days before the
relevant payment dates, which payment dates correspond to the interest payment
dates on the Debentures. Distributions payable on any Securities that are not
punctually paid on any Distribution payment date, as a result of the Debenture
Issuer having failed to make a payment under the Debentures, will cease to be
payable to the Person in whose name such Securities are registered on the
relevant record date, and such defaulted Distribution will instead be payable
to the Person in whose name such Securities are registered on the special
record date or other specified date determined in accordance with the
Indenture. If any date on which Distributions are payable on the Securities is
not a Business Day, then payment of the Distribution payable on such date will
be made on the next succeeding day that is a Business Day (and without any
interest or other payment in respect of any such delay) except that, if such
Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same
force and effect as if made on such date.
(d) In the event that there is any money or other
property held by or for the Trust that is not accounted for hereunder, such
property shall be distributed Pro Rata (as defined herein) among the Holders of
the Securities.
3. Liquidation Distribution Upon Dissolution.
In the event of any voluntary or involuntary dissolution,
winding-up or termination of the Trust, the Holders of the Securities on the
date of the dissolution, winding-up or termination, as the case may be, will be
entitled to receive out of the assets of the Trust available for distribution
to Holders of Securities after satisfaction of liabilities of creditors an
amount equal to the aggregate of the stated liquidation amount of $___ per
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"), unless, in connection with
such dissolution, winding-up or termination, Debentures in an aggregate stated
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principal amount equal to the aggregate stated liquidation amount of such
Securities, with an interest rate equal to the Coupon Rate of, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on, such Securities, shall be distributed on a Pro Rata basis to
the Holders of the Securities in exchange for such Securities.
If, upon any such dissolution, the Liquidation Distribution
can be paid only in part because the Trust has insufficient assets available to
pay in full the aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Securities shall be paid on a Pro Rata basis.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures in whole
or in part, whether at maturity or upon redemption (either at the option of the
Debenture Issuer or pursuant to a Tax Event as described below), the proceeds
from such repayment or payment shall be simultaneously applied to redeem
Securities having an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so repaid or redeemed at a redemption price
of $___ per Security plus an amount equal to accrued and unpaid Distributions
thereon at the date of the redemption, payable in cash (the "Redemption
Price"). Holders will be given not less than 30 nor more than 60 days notice
of such redemption.
(b) If fewer than all the outstanding Securities
are to be so redeemed, the Common Securities and the Preferred Securities will
be redeemed Pro Rata and the Preferred Securities to be redeemed will be as
described in Section 4(f)(ii) below.
(c) If, at any time, a Tax Event (as defined
below) shall occur and be continuing the Regular Trustees shall, except in
certain limited circumstances described in this Section 4(c), dissolve the
Trust and, after satisfaction of creditors, cause Debentures held by the
Property Trustee, having an aggregate principal amount equal to the aggregate
stated liquidation amount of, with an interest rate identical to the Coupon
Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on, and having the same record date for payment as the
Securities, to be distributed to the Holders of the Securities in liquidation
of such Holders' interests in the Trust on a Pro Rata basis, within 90 days
following the occurrence of such Tax Event (the "90 Day Period"); provided,
however, that, as a condition of such dissolution and distribution, the Regular
Trustees shall have received an opinion of a nationally recognized independent
tax counsel experienced in such matters (a "No Recognition Opinion"), which
opinion may rely on published revenue rulings of the Internal Revenue Service,
to the effect that the Holders of the Securities will not recognize any gain or
loss for United States federal income tax purposes as a result of
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the dissolution of the Trust and the distribution of Debentures; and provided,
further, that, if at the time there is available to the Trust the opportunity
to eliminate, within the 90 Day Period, the Tax Event by taking some
ministerial action, such as filing a form or making an election, or pursuing
some other similar reasonable measure that has no adverse effect on the Trust,
the Debenture Issuer, the Depositor or the Holders of the Securities
("Ministerial Action"), the Trust will pursue such Ministerial Action in lieu
of dissolution.
If in the event of a Tax Event, (i) after receipt of a Tax
Event Opinion (as defined hereinafter) by the Regular Trustees, the Debenture
Issuer has received an opinion (a "Redemption Tax Opinion") of a nationally
recognized independent tax counsel experienced in such matters that, as a
result of a Tax Event, there is more than an insubstantial risk that the
Debenture Issuer would be precluded from deducting the interest on the
Debentures for United States federal income tax purposes even after the
Debentures were distributed to the Holders of Securities in liquidation of such
Holders' interests in the Trust as described in this Section 4(c), or (ii) the
Regular Trustees shall have been informed by such tax counsel that a No
Recognition Opinion cannot be delivered to the Trust, the Debenture Issuer
shall have the right at any time, upon not less than 30 nor more than 60 days
notice, to redeem the Debentures in whole or in part for cash within 90 days
following the occurrence of such Tax Event, and, following such redemption,
Securities with an aggregate liquidation amount equal to the aggregate
principal amount of the Debentures so redeemed shall be redeemed by the Trust
at the Redemption Price on a Pro Rata basis; provided, however, that, if at the
time there is available to the Debenture Issuer or the Trust the opportunity to
eliminate, within such 90 day period, the Special Event by taking some
Ministerial Action, the Trust or the Debenture Issuer will pursue such
Ministerial Action in lieu of redemption.
"Tax Event" means that the Regular Trustees shall have
received an opinion of a nationally recognized independent tax counsel
experienced in such matters (a "Dissolution Tax Opinion") to the effect that on
or after the date of the Prospectus Supplement, as a result of (a) any
amendment to, clarification of or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United States or
any political subdivision or taxing authority thereof or therein affecting
taxation, (b) any judicial decision, official administrative pronouncement,
ruling, regulatory procedure, notice or announcement, including any notice or
announcement of intent to adopt such procedures or regulations (an
"Administrative Action") or (c) any amendment to, clarification of, or change
in the official position or the interpretation of such Administrative Action or
judicial decision that differs from the theretofore generally accepted
position, in each case, by any legislative
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<PAGE> 69
body, court, governmental authority or regulatory body, irrespective of the
manner in which such amendment, clarification or change is made known, which
amendment, clarification, or change is effective or such pronouncement or
decision is announced, in each case, on or after, the first date of issuance of
the Securities, there is more than an insubstantial risk that (i) the Trust is
or will be within 90 days of the date thereof, subject to United States federal
income tax with respect to interest accrued or received on the Debentures, (ii)
the Trust is, or will be within 90 days of the date thereof, subject to more
than a de minimis amount of taxes, duties or other governmental charges, or
(iii) interest payable by the Debenture Issuer to the Trust on the Debentures
is not, or within 90 days of the date thereof will not be, deductible, in whole
or in part, by the Debenture Issuer for United States federal income tax
purposes.
On and from the date fixed by the Regular Trustees for any
distribution of Debentures and dissolution of the Trust: (i) the Securities
will no longer be deemed to be outstanding, (ii) DTC or its nominee (or any
successor Clearing Agency or its nominee), as the record Holder of the
Preferred Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon such distribution
and any certificates representing Securities, except for certificates
representing Preferred Securities held by DTC or its nominee (or any successor
Clearing Agency or its nominee), will be deemed to represent beneficial
interests in the Debentures having an aggregate principal amount equal to the
aggregate stated liquidation amount of, with an interest rate identical to the
Coupon Rate of, and accrued and unpaid interest equal to accrued and unpaid
Distributions on such Securities until such certificates are presented to the
Debenture Issuer or its agent for transfer or reissue.
(d) The Trust may not redeem fewer than all the
outstanding Securities unless all accrued and unpaid Distribu- tions have been
paid on all Securities for all quarterly Distribution periods terminating on or
before the date of redemption.
(e) If the Debentures are distributed to holders
of the Securities, pursuant to the terms of the Indenture, the Debenture Issuer
will use its best efforts to have the Debentures listed on the New York Stock
Exchange or on such other exchange as the Preferred Securities were listed
immediately prior to the distribution of the Debentures.
(f) "Redemption or Distribution Procedures."
(i) Notice of any redemption of, or notice
of distribution of Debentures in exchange for the
Securities (a "Redemption/Distribution Notice") will
be given by
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the Trust by mail to each Holder of Securities to be
redeemed or exchanged not fewer than 30 nor more than
60 days before the date fixed for redemption or
exchange thereof which, in the case of a redemption,
will be the date fixed for redemption of the
Debentures. For purposes of the calculation of the
date of redemption or exchange and the dates on which
notices are given pursuant to this Section 4(f)(i), a
Redemption/ Distribution Notice shall be deemed to be
given on the day such notice is first mailed by
first-class mail, postage prepaid, to Holders of
Securities. Each Redemption/Distribution Notice shall
be addressed to the Holders of Securities at the
address of each such Holder appearing in the books and
records of the Trust. No defect in the
Redemption/Distribution Notice or in the mailing of
either thereof with respect to any Holder shall affect
the validity of the redemption or exchange proceedings
with respect to any other Holder.
(ii) In the event that fewer than all the
outstanding Securities are to be redeemed, the
Securities to be redeemed shall be redeemed Pro Rata
from each Holder of Preferred Securities, it being
understood that, in respect of Preferred Securities
registered in the name of and held of record by the
DTC or its nominee (or any successor Clearing Agency
or its nominee) or any nominee, the distribution of
the proceeds of such redemption will be made to each
Clearing Agency Participant (or Person on whose
behalf such nominee holds such securities) in
accordance with the procedures applied by such agency
or nominee.
(iii) If Securities are to be redeemed and
the Trust gives a Redemption/Distribution Notice,
which notice may only be issued if the Debentures are
redeemed as set out in this Section 4 (which notice
will be irrevocable), then (A) while the Preferred
Securities are in book-entry only form, with respect
to the Preferred Securities, by 12:00 noon, New York
City time, on the redemption date, provided that the
Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the
related re-
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<PAGE> 71
demption or maturity of the Debentures, the Property
Trustee will deposit irrevocably with DTC or its
nominee (or successor Clearing Agency or its nominee)
funds sufficient to pay the applicable Redemption
Price with respect to the Preferred Securities and
will give DTC irrevocable instructions and authority
to pay the Redemption Price to the Holders of the
Preferred Securities, and (B) with respect to
Preferred Securities issued in definitive form and
Common Securities, provided that the Debenture Issuer
has paid the Property Trustee a sufficient amount of
cash in connection with the related redemption or
maturity of the Debentures, the Property Trustee will
pay the relevant Redemption Price to the Holders of
such Securities by check mailed to the address of the
relevant Holder appearing on the books and records of
the Trust on the redemption date. If a
Redemption/Distribution Notice shall have been given
and funds deposited as required, if applicable, then
immediately prior to the close of business on the date
of such deposit, or on the redemption date, as
applicable, distributions will cease to accrue on the
Securities so called for redemption and all rights of
Holders of such Securities so called for redemption
will cease, except the right of the Holders of such
Securities to receive the Redemption Price, but
without interest on such Redemption Price. Neither
the Regular Trustees nor the Trust shall be required
to register or cause to be registered the transfer of
any Securities that have been so called for
redemption. If any date fixed for redemption of
Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on
the next succeeding day that is a Business Day (and
without any interest or other payment in respect of
any such delay) except that, if such Business Day
falls in the next calendar year, such payment will be
made on the immediately preceding Business Day, in
each case with the same force and effect as if made on
such date fixed for redemption. If payment of the
Redemption Price in respect of any Securities is
improperly withheld or refused and not paid either by
the Property Trustee or by the Depositor as guarantor
pursuant to the relevant Securities
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<PAGE> 72
Guarantee, Distributions on such Securities will
continue to accrue from the original redemption date
to the actual date of payment, in which case the
actual payment date will be considered the date fixed
for redemption for purposes of calculating the
Redemption Price.
(iv) Redemption/Distribution Notices shall
be sent by the Regular Trustees on behalf of the
Trust to (A) in respect of the Preferred Securities,
DTC or its nominee (or any successor Clearing Agency
or its nominee) if the Global Certificates have been
issued or, if Definitive Preferred Security
Certificates have been issued, to the Holder thereof,
and (B) in respect of the Common Securities to the
Holder thereof.
(v) Subject to the foregoing and applicable
law (including, without limitation, United States
federal securities laws), provided the acquiror is
not the Holder of the Common Securities or the
obligor under the Indenture, the Depositor or any of
its subsidiaries may at any time and from time to
time purchase outstanding Preferred Securities by
tender, in the open market or by private agreement.
5. Voting Rights - Preferred Securities.
(a) Except as provided under Sections 5(b) and 7
and as otherwise required by law and the Declaration, the Holders of the
Preferred Securities will have no voting rights.
(b) Subject to the requirements set forth in this
paragraph, the Holders of a Majority in aggregate liquidation amount of the
Preferred Securities, voting separately as a class may direct the time, method,
and place of conducting any proceeding for any remedy available to the Property
Trustee, or exercising any trust or power conferred upon the Property Trustee
under the Declaration, including the right to direct the Property Trustee, as
holder of the Debentures, to (i) exercise the remedies available under the
Indenture, conducting any proceeding for any remedy available to the Debenture
Trustee, or exercising any trust or power conferred on the Debenture Trustee
with respect to the Debentures, (ii) waive any past default and its
consequences that is waivable under Section ___ of the Indenture, or (iii)
exercise any right to rescind or annul a declaration that the principal of all
the Debentures shall be due and payable[; provided, however, that, where a
consent under the Indenture would
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<PAGE> 73
require the consent or act of the Holders of greater than a majority of the
Holders in principal amount of Debentures affected thereby, (a "Super
Majority"), the Property Trustee may only give such consent or take such action
at the written direction of the Holders of at least the proportion in
liquidation amount of the Preferred Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding]. The Property Trustee shall not revoke any action previously
authorized or approved by a vote of the Holders of the Preferred Securities.
Other than with respect to directing the time, method and place of conducting
any remedy available to the Property Trustee or the Debenture Trustee as set
forth above, the Property Trustee shall not take any action in accordance with
the directions of the Holders of the Preferred Securities under this paragraph
unless the Property Trustee has obtained an opinion of tax counsel to the
effect that for the purposes of United States federal income tax the Trust will
not be classified as other than a grantor trust on account of such action. If
a Declaration Event of Default has occurred and is continuing and such event is
attributable to the failure of the Debenture Issuer to pay interest or
principal on the Debentures on the date such interest or principal is otherwise
payable (or in the case of redemption, on the redemption date), then a holder
of Preferred Securities may directly institute a proceeding for enforcement of
payment to such Holder of the principal of or interest on the Debentures having
a principal amount equal to the aggregate liquidation amount of the Preferred
Securities of such holder (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct Action, the
rights of the holders of the Common Securities Holder will be subrogated to the
rights of such holder of Preferred Securities to the extent of any payment made
by the Issuer to such holder of Preferred Securities in such Direct Action.
Except as provided in the preceding sentences, the Holders of Preferred
Securities will not be able to exercise directly any other remedy available to
the holders of the Debentures.
Any approval or direction of Holders of Preferred Securities
may be given at a separate meeting of Holders of Preferred Securities convened
for such purpose, at a meeting of all of the Holders of Securities in the Trust
or pursuant to written consent. The Regular Trustees will cause a notice of
any meeting at which Holders of Preferred Securities are entitled to vote, or
of any matter upon which action by written consent of such Holders is to be
taken, to be mailed to each Holder of record of Preferred Securities. Each
such notice will include a statement setting forth (i) the date of such meeting
or the date by which such action is to be taken, (ii) a description of any
resolution proposed for adoption at such meeting on which such Holders are
entitled to vote or of such matter upon which written consent is sought and
(iii) instructions for the delivery of proxies or consents.
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<PAGE> 74
No vote or consent of the Holders of the Preferred Securities
will be required for the Trust to redeem and cancel Preferred Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
Notwithstanding that Holders of Preferred Securities are
entitled to vote or consent under any of the circumstances described above, any
of the Preferred Securities that are owned by the Depositor or any Affiliate of
the Depositor shall not be entitled to vote or consent and shall, for purposes
of such vote or consent, be treated as if they were not outstanding.
6. Voting Rights - Common Securities.
(a) Except as provided under Sections 6(b), (c),
7(a) and 8 as otherwise required by law and the Declaration, the Holders of the
Common Securities will have no voting rights.
(b) The Holders of the Common Securities are
entitled, in accordance with Article V of the Declaration, to vote to appoint,
remove or replace any Trustee or to increase or decrease the number of
Trustees.
(c) Subject to Section 2.6 of the Declaration and
only after the Event of Default with respect to the Preferred Securities has
been cured, waived, or otherwise eliminated and subject to the requirements of
the second to last sentence of this paragraph, the Holders of a Majority in
liquidation amount of the Common Securities, voting separately as a class, may
direct the time, method, and place of conducting any proceeding for any remedy
available to the Property Trustee, or exercising any trust or power conferred
upon the Property Trustee under the Declaration, including (i) directing the
time, method, place of conducting any proceeding for any remedy available to
the Debenture Trustee, or exercising any trust or power conferred on the
Debenture Trustee with respect to the Debentures, (ii) waive any past default
and its consequences that is waivable under Section ____ of the Indenture, or
(iii) exercise any right to rescind or annul a declaration that the principal
of all the Debentures shall be due and payable[; provided that, where a consent
or action under the Indenture would require the consent or act of a Super
Majority, the Property Trustee may only give such consent or take such action
at the written direction of the Holders of at least the proportion in
liquidation amount of the Common Securities which the relevant Super Majority
represents of the aggregate principal amount of the Debentures outstanding].
Pursuant to this Section 6(c), the Property Trustee shall not revoke any action
previously authorized or approved by a vote of the Holders of the Preferred
Securities. Other than with respect to directing the time, method and place of
conducting any remedy available to the Property Trustee or the Debenture
Trustee as set forth above, the Property Trustee shall not take any action in
accor-
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dance with the directions of the Holders of the Common Securities under this
paragraph unless the Property Trustee has obtained an opinion of tax counsel to
the effect that for the purposes of United States federal income tax the Trust
will not be classified as other than a grantor trust on account of such action.
If the Property Trustee fails to enforce its rights under the Declaration, any
Holder of Common Securities may institute a legal proceeding directly against
any Person to enforce the Property Trustee's rights under the Declaration,
without first instituting a legal proceeding against the Property Trustee or
any other Person.
Any approval or direction of Holders of Common Securities may
be given at a separate meeting of Holders of Common Securities convened for
such purpose, at a meeting of all of the Holders of Securities in the Trust or
pursuant to written consent. The Regular Trustees will cause a notice of any
meeting at which Holders of Common Securities are entitled to vote, or of any
matter upon which action by written consent of such Holders is to be taken, to
be mailed to each Holder of record of Common Securities. Each such notice will
include a statement setting forth (i) the date of such meeting or the date by
which such action is to be taken, (ii) a description of any resolution proposed
for adoption at such meeting on which such Holders are entitled to vote or of
such matter upon which written consent is sought and (iii) instructions for the
delivery of proxies or consents.
No vote or consent of the Holders of the Common Securities
will be required for the Trust to redeem and cancel Common Securities or to
distribute the Debentures in accordance with the Declaration and the terms of
the Securities.
7. Amendments to Declaration and Indenture.
(a) In addition to any requirements under Section
12.1 of the Declaration, if any proposed amendment to the Declaration provides
for, or the Regular Trustees otherwise propose to effect, (i) any action that
would adversely affect the powers, preferences or special rights of the
Securities, whether by way of amendment to the Declaration or otherwise, or
(ii) the dissolution, winding- up or termination of the Trust, other than as
described in Section 8.1 of the Declaration, then the Holders of outstanding
Securities voting together as a single class, will be entitled to vote on such
amendment or proposal (but not on any other amendment or proposal) and such
amendment or proposal shall not be effective except with the approval of the
Holders of at least a Majority in liquidation amount of the Securities,
affected thereby, provided, however, if any amendment or proposal referred to
in clause (i) above would adversely affect only the Preferred Securities or
only the Common Securities, then only the affected class will be entitled to
vote on such amendment or
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<PAGE> 76
proposal and such amendment or proposal shall not be effective except with the
approval of a Majority in liquidation amount of such class of Securities.
(b) In the event the consent of the Property
Trustee as the holder of the Debentures is required under the Indenture with
respect to any amendment, modification or termination on the Indenture or the
Debentures, the Property Trustee shall request the written direction of the
Holders of the Securities with respect to such amendment, modification or
termination and shall vote with respect to such amendment, modification or
termination as directed by a Majority in liquidation amount of the Securities
voting together as a single class[; provided, however, that where a consent
under the Indenture would require the consent of a Super Majority, the Property
Trustee may only give such consent at the direction of the Holders of at least
the proportion in liquidation amount of the Securities which the relevant Super
Majority represents of the aggregate principal amount of the Debentures
outstanding]; provided, further, that the Property Trustee shall not take any
action in accordance with the directions of the Holders of the Securities under
this Section 7(b) unless the Property Trustee has obtained an opinion of tax
counsel to the effect that for the purposes of United States federal income tax
the Trust will not be classified as other than a grantor trust on account of
such action.
8. Pro Rata.
A reference in these terms of the Securities to any payment,
distribution or treatment as being "Pro Rata" shall mean pro rata to each
Holder of Securities according to the aggregate liquidation amount of the
Securities held by the relevant Holder in relation to the aggregate liquidation
amount of all Securities outstanding unless, in relation to a payment, an Event
of Default under the Declaration has occurred and is continuing, in which case
any funds available to make such payment shall be paid first to each Holder of
the Preferred Securities pro rata according to the aggregate liquidation amount
of Preferred Securities held by the relevant Holder relative to the aggregate
liquidation amount of all Preferred Securities outstanding, and only after
satisfaction of all amounts owed to the Holders of the Preferred Securities, to
each Holder of Common Securities pro rata according to the aggregate
liquidation amount of Common Securities held by the relevant Holder relative to
the aggregate liquidation amount of all Common Securities outstanding.
9. Ranking.
The Preferred Securities rank pari passu and payment thereon
shall be made Pro Rata with the Common Securities except that, where a
Declaration Event of Default occurs and is continuing the rights of Holders of
the Common Securities to payment in
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<PAGE> 77
respect of Distributions and payments upon liquidation, redemption and
otherwise are subordinated to the rights to payment of the Holders of the
Preferred Securities.
10. Listing.
The Regular Trustees shall use their best efforts to cause the
Preferred Securities to be listed for quotation on the New York Stock Exchange,
Inc.
11. Acceptance of Securities Guarantee and Indenture.
Each Holder of Preferred Securities and Common Securities, by
the acceptance thereof, agrees to the provisions of the Preferred Securities
Guarantee and the Common Securities Guarantee, respectively, including the
subordination provisions therein and to the provisions of the Indenture.
12. No Preemptive Rights.
The Holders of the Securities shall have no preemptive rights
to subscribe for any additional securities.
13. Miscellaneous.
These terms constitute a part of the Declaration.
The Depositor will provide a copy of the Declaration, the
Preferred Securities Guarantee or the Common Securities Guarantee (as may be
appropriate), and the Indenture to a Holder without charge on written request
to the Trust at its principal place of business.
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<PAGE> 78
EXHIBIT A-1
FORM OF PREFERRED SECURITY CERTIFICATE
This Preferred Security is a Global Certificate within the
meaning of the Declaration hereinafter referred to and is registered in the
name of The Depository Trust Company ("DTC") or a nominee of DTC. This
Preferred Security is exchangeable for Preferred Securities registered in the
name of a person other than DTC or its nominee only in the limited
circumstances described in the Declaration and no transfer of this Preferred
Security (other than a transfer of this Preferred Security as a whole by DTC to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC) may
be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of DTC (55 Water Street, New York, New York) to the Trust or its
agent for registration of transfer, exchange or payment, and any Preferred
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of DTC and any payment hereon is made
to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY A PERSON IS WRONGFUL since the registered owner hereof, Cede & Co., has an
interest herein.
Certificate Number Number of Preferred Securities
CUSIP NO. _______________
Certificate Evidencing Preferred Securities
of
[Allstate Financing III]
_____% ____________ Preferred Securities(SM) ("______(SM))
(liquidation amount $___ per Preferred Security)
[Allstate Financing I], a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
______________ (the "Holder") is the registered owner of preferred securities
of the Trust representing undivided beneficial interests in the assets of the
Trust designated the ____% _________ Preferred Securities (SM) (liquidation
amount $___ per Preferred Security) (the "Preferred Securities"). The Preferred
Securities are transferable on the books and
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<PAGE> 79
records of the Trust, in person or by a duly authorized attorney, upon
surrender of this certificate duly endorsed and in proper form for transfer.
The designation, rights, privileges, restrictions, preferences and other terms
and provisions of the Preferred Securities represented hereby are issued and
shall in all respects be subject to the provisions of the Amended and Restated
Declaration of Trust of the Trust dated as of ______ __, ____, as the same may
be amended from time to time (the "Declaration"), including the designation of
the terms of the Preferred Securities as set forth in Annex I to the
Declaration. Capitalized terms used herein but not defined shall have the
meaning given them in the Declaration. The Holder is entitled to the benefits
of the Preferred Securities Guarantee to the extent provided therein. The
Depositor will provide a copy of the Declaration, the Preferred Securities
Guarantee and the Indenture to a Holder without charge upon written request to
the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the
Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate this ____ day of
_______, ____.
[ALLSTATE FINANCING III]
By:_____________________________________
Name:
Title: Regular Trustee
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<PAGE> 80
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Security will be
fixed at a rate per annum of _____% (the "Coupon Rate") of the stated
liquidation amount of $___ per Preferred Security, such rate being the rate of
interest payable on the Debentures to be held by the Property Trustee.
Distributions in arrears for more than one quarter will bear interest thereon
compounded quarterly at the Coupon Rate (to the extent permitted by applicable
law). The term "Distributions" as used herein includes such cash distributions
and any such interest payable unless otherwise stated. A Distribution is
payable only to the extent that payments are made in respect of the Debentures
held by the Property Trustee and to the extent the Property Trustee has funds
available therefor. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on the
Preferred Securities will be cumulative, will accrue from the date of original
issuance and will be payable quarterly in arrears, on March 31, June 30,
September 30 and December 31 of each year, commencing on _____ __, ____, to
______ __, ____. The Debenture Issuer has the right under the Indenture to
defer payments of interest by extending the interest payment period from time
to time on the Debentures for a period not exceeding 20 consecutive quarters
(each an "Extension Period"); provided that no Extension Period shall last
beyond the date of the maturity of the Debentures and as a consequence of such
deferral, Distributions will also be deferred. Despite such deferral,
quarterly Distributions will continue to accrue with interest thereon (to the
extent permitted by applicable law) at the Coupon Rate compounded quarterly
during any such Extension Period. Prior to the termination of any such
Extension Period, the Debenture Issuer may further extend such Extension
Period; provided that such Extension Period together with all such previous and
further extensions thereof may not exceed 20 consecutive quarters or extend
beyond the maturity of the Debentures. Payments of accrued Distributions will
be payable to Holders as they appear on the books and records of the Trust on
the first record date after the end of the Extension Period. Upon the
termination of any Extension Period and the payment of all amounts then due,
the Debenture Issuer may commence a new Extension Period, subject to the above
requirements.
The Preferred Securities shall be redeemable as provided in the
Declaration.
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<PAGE> 81
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert assignee's name and social security or tax identification number)
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
______________________________________________________________________________
______________________________________________________________________________
______________________________________________________________________________
_________________________________________________________________ agent
to transfer this Preferred Security Certificate on the books of the Trust.
The agent may substitute another to act for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee*: ___________________________________
___________________________
* Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
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<PAGE> 82
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
[Allstate Financing III]
_____% __________ Common Securities
(liquidation amount $___ per Common Security)
[Allstate Financing III], a statutory business trust formed
under the laws of the State of Delaware (the "Trust"), hereby certifies that
[The Allstate Corporation] (the "Holder") is the registered owner of common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust designated the _____% __________ Common Securities
(liquidation amount $___ per Common Security) (the "Common Securities"). The
Common Securities are transferable on the books and records of the Trust, in
person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer. The designation, rights,
privileges, restrictions, preferences and other terms and provisions of the
Common Securities represented hereby are issued and shall in all respects be
subject to the provisions of the Amended and Restated Declaration of Trust of
the Trust dated as of ______ __, ____, as the same may be amended from time to
time (the "Declaration"), including the designation of the terms of the Common
Securities as set forth in Annex I to the Declaration. Capitalized terms used
herein but not defined shall have the meaning given them in the Declaration.
The Holder is entitled to the benefits of the Common Securities Guarantee to
the extent provided therein. The Depositor will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture to a Holder
without charge upon written request to the Trust at its principal place of
business.
Upon receipt of this certificate, the Depositor is bound by
the Declaration and is entitled to the benefits thereunder.
By acceptance, the Holder agrees to treat, for United States
federal income tax purposes, the Debentures as indebted-
A2-1
<PAGE> 83
ness and the Common Securities as evidence of indirect beneficial ownership in
the Debentures.
IN WITNESS WHEREOF, the Trust has executed this certificate
this ___ day of ____________, ____.
[ALLSTATE FINANCING III]
By:_____________________________________
Name:
Title: Regular Trustee
A2-2
<PAGE> 84
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be fixed at
a rate per annum of _____% (the "Coupon Rate") of the stated liquidation amount
of $___ per Common Security, such rate being the rate of interest payable on
the Debentures to be held by the Property Trustee. Distributions in arrears
for more than one quarter will bear interest thereon compounded quarterly at
the Coupon Rate (to the extent permitted by applicable law). The term
"Distributions" as used herein includes such cash distributions and any such
interest payable unless otherwise stated. A Distribution is payable only to
the extent that payments are made in respect of the Debentures held by the
Property Trustee and to the extent the Property Trustee has funds available
therefor. The amount of Distributions payable for any period will be computed
for any full quarterly Distribution period on the basis of a 360-day year of
twelve 30-day months, and for any period shorter than a full quarterly
Distribution period for which Distributions are computed, Distributions will be
computed on the basis of the actual number of days elapsed per 90-day quarter.
Except as otherwise described below, distributions on the
Common Securities will be cumulative, will accrue from the date of original
issuance and will be payable quarterly in arrears, on March 31, June 30,
September 30 and December 31 of each year, commencing on ________ __, ____, to
Holders of record fifteen (15) days prior to such payment dates, which payment
dates shall correspond to the interest payment dates on the Debentures. The
Debenture Issuer has the right under the Indenture to defer payments of
interest by extending the interest payment period from time to time on the
Debentures for a period not exceeding 20 consecutive quarters (each an
"Extension Period"); provided that no Extension Period shall last beyond the
date of the maturity of the Debentures and as a consequence of such deferral,
Distributions will also be deferred. Despite such deferral, quarterly
Distributions will continue to accrue with interest thereon (to the extent
permitted by applicable law) at the Coupon Rate compounded quarterly during any
such Extension Period. Prior to the termination of any such Extension Period,
the Debenture Issuer may further extend such Extension Period; provided that
such Extension Period together with all such previous and further extensions
thereof may not exceed 20 consecutive quarters or extend beyond the maturity
date of the Debentures. Payments of accrued Distributions will be payable to
Holders as they appear on the books and records of the Trust on the first
record date after the end of the Extension Period. Upon the termination of any
Extension Period and the payment of all amounts then due, the Debenture Issuer
may commence a new Extension Period, subject to the above requirements.
The Common Securities shall be redeemable as provided in the
Declaration.
A2-3
<PAGE> 85
_____________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Common Security
Certificate to:
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert assignee's name and social security or tax identification number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints ________________________________________
________________________________________________________________________________
_______________________________ agent to transfer this Common Security
Certificate on the books of the Trust. The agent may substitute another to act
for him or her.
Date: _______________________
Signature: __________________
(Sign exactly as your name appears on the other side of this Common Security
Certificate)
Signature Guarantee*: ___________________________________
_________________________
* Signature must be guaranteed by an "eligible guarantor institution"
that is a bank, stockbroker, savings and loan association or credit
union meeting the requirements of the Registrar, which requirements
include membership or participation in the Securities Transfer Agents
Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities and
Exchange Act of 1934, as amended.
A2-4
<PAGE> 86
EXHIBIT B
SPECIMEN OF DEBENTURE
B-1
<PAGE> 87
EXHIBIT C
UNDERWRITING AGREEMENT
C-1
<PAGE> 1
EXHIBIT 4.14
[FORM OF PREFERRED SECURITIES GUARANTEE]
====================================
PREFERRED SECURITIES GUARANTEE AGREEMENT
[Allstate Financing III]
Dated as of _______ __, ____
====================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
____
ARTICLE I
DEFINITIONS AND INTERPRETATION
<S> <C> <C>
SECTION 1.1 Definitions and Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.2 Lists of Holders of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.3 Reports by the Preferred Guarantee
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.5 Evidence of Compliance with Conditions Precedent . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.6 Events of Default; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.7 Event of Default; Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2.8 Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . 8
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.3 Not Responsible for Recitals or Issuance of Preferred Securities Guarantee . . . . . . . . 12
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee Trustee . . . . . . . . . . . . 13
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.2 Waiver of Notice and Demand . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.3 Obligations Not Affected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 5.4 Rights of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 5.5 Guarantee of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
____
<S> <C> <C>
SECTION 5.6 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 5.7 Independent Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.2 Ranking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VII
TERMINATION
SECTION 7.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 8.2 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.2 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 9.4 Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 9.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
</TABLE>
ii
<PAGE> 4
PREFERRED SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Preferred Securities
Guarantee"), dated as of ______ __, ____, is executed and delivered by The
Allstate Corporation, a Delaware corporation (the "Guarantor"), and State
Street Bank and Trust Company, a trust company duly organized and existing
under the laws of the Commonwealth of Massachusetts, as trustee (the "Preferred
Guarantee Trustee"), for the benefit of the Holders (as defined herein) from
time to time of the Preferred Securities (as defined herein) of [Allstate
Financing III], a Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated Declaration of
Trust (the "Declaration"), dated as of _____ __, ____, among the trustees of
the Issuer named therein, the Guarantor, as Depositor, and the holders from
time to time of undivided beneficial interests in the assets of the Issuer,
the Issuer is issuing on the date hereof ___________ preferred securities,
having an aggregate liquidation amount of $__________, designated the ___%
______________ Preferred Securities (the "Preferred Securities");
WHEREAS, the Preferred Securities will be issued by the Issuer
and the proceeds thereof, together with the proceeds from the issuance of the
Issuer's Common Securities (as defined below), will be used to purchase the
Debentures (as defined in the Declaration) of the Guarantor which will be
deposited with State Street Bank and Trust Company, as Property Trustee under
the Declaration, as trust assets; and
WHEREAS, as incentive for the Holders to purchase the
Preferred Securities, the Guarantor desires irrevocably and unconditionally to
agree, to the extent set forth in this Preferred Securities Guarantee, to pay
to the Holders of the Preferred Securities the Guarantee Payments (as defined
herein) and to make certain other payments on the terms and conditions set
forth herein.
[WHEREAS, the Guarantor is also executing and delivering a
guarantee agreement (the "Common Securities Guarantee") in substantially
identical terms to this Preferred Securities Guarantee for the benefit of the
holders of the Common Securities (as defined herein), except that if an Event
of Default (as defined in the Indenture), has occurred and is continuing, the
rights of holders of the Common Securities to receive Guarantee Payments under
the Common Securities Guarantee are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments under this Preferred
Securities Guarantee.]
NOW, THEREFORE, in consideration of the purchase by each
Holder of Preferred Securities, which purchase the Guarantor
<PAGE> 5
hereby agrees shall benefit the Guarantor, the Guarantor executes and delivers
this Preferred Securities Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Preferred Securities Guarantee, unless the context
otherwise requires:
(a) Capitalized terms used in this Preferred Securities
Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this
Section 1.1;
(b) a term defined anywhere in this Preferred Securities
Guarantee has the same meaning throughout;
(c) all references to "the Preferred Securities
Guarantee" or "this Preferred Securities Guarantee"
are to this Preferred Securities Guarantee as
modified, supplemented or amended from time to time;
(d) all references in this Preferred Securities Guarantee
to Articles and Sections are to Articles and Sections
of this Preferred Securities Guarantee, unless
otherwise specified;
(e) a term defined in the Trust Indenture Act has the
same meaning when used in this Preferred Securities
Guarantee, unless otherwise defined in this Preferred
Securities Guarantee or unless the context otherwise
requires; and
(f) a reference to the singular includes the plural and
vice versa.
"Affiliate" has the same meaning as given to that term in Rule
405 of the Securities Act of 1933, as amended, or any successor rule
thereunder. [An Affiliate of the Guarantor shall not be deemed to include the
Issuer.]
"Business Day" means any day other than a Saturday or Sunday
or any day on which banking institutions in the City of New York, New York or
Boston, Massachusetts are authorized or required by any applicable law to
close.
2
<PAGE> 6
"Common Securities" means the securities representing common
undivided beneficial interests in the assets of the Issuer.
"Corporate Trust Office" means the office of the Preferred
Guarantee Trustee at which the corporate trust business of the Preferred
Guarantee Trustee shall, at any particular time, be principally administered,
which office at the date of execution of this Agreement is located at Two
International Place, Boston, Massachusetts 02110.
"Covered Person" means any Holder or beneficial owner of
Preferred Securities.
"Debentures" means the series of subordinated debt securities
of the Guarantor designated the ___% Subordinated Deferrable Interest
Debentures due __________ ___, ____ held by the Property Trustee (as defined in
the Declaration) of the Issuer.
"Event of Default" means a default by the Guarantor on any of
its payment or other obligations under this Preferred Securities Guarantee[,
provided, however, that, except with respect to a default in payment of any
Guarantee Payments, the Guarantor shall have received notice of default and
shall not have cured such default within 60 days after receipt of such notice].
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Preferred Securities,
to the extent not paid or made by the Issuer: (i) any accrued and unpaid
Distributions (as defined in the Declaration) that are required to be paid on
such Preferred Securities to the extent the Issuer shall have funds available
therefor, (ii) the redemption price, including all accrued and unpaid
Distributions to the date of redemption (the "Redemption Price") to the extent
the Issuer has funds available therefor, with respect to any Preferred
Securities called for redemption by the Issuer, and (iii) upon a voluntary or
involuntary dissolution, winding-up or termination of the Issuer (other than in
connection with the distribution of Debentures to the Holders in exchange for
Preferred Securities as provided in the Declaration), the lesser of (a) the
aggregate of the liquidation amount of $_________ per Preferred Security and
all accrued and unpaid Distributions on the Preferred Securities to the date of
payment, to the extent the Issuer shall have funds available therefor, and (b)
the amount of assets of the Issuer remaining available for distribution to
Holders in liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an event of default under the Indenture has occurred and is
continuing, the rights of holders of the Common Securities to receive payments
under the Common
3
<PAGE> 7
Securities Guarantee Agreement are subordinated to the rights of Holders of
Preferred Securities to receive Guarantee Payments.
"Holder" shall mean any holder, as registered on the books and
records of the Issuer of any Preferred Securities; provided, however, that, in
determining whether the holders of the requisite percentage of Preferred
Securities have given any request, notice, consent or waiver hereunder,
"Holder" shall not include the Guarantor[, the Preferred Guarantee Trustee] or
any Affiliate of the Guarantor [or the Preferred Guarantee Trustee].
"Indemnified Person" means the Preferred Guarantee Trustee,
any Affiliate of the Preferred Guarantee Trustee, or any officers, directors,
shareholders, members, partners, employees, representatives, nominees,
custodians or agents of the Preferred Guarantee Trustee.
"Indenture" means the Indenture, dated as of _________ ___,
____, between the Guarantor (the "Debenture Issuer") and State Street Bank and
Trust Company, as trustee, and any indenture supplemental thereto pursuant to
which certain subordinated debt securities of the Debenture Issuer are to be
issued to the Property Trustee of the Issuer.
"Majority in liquidation amount of the Securities" means,
except as provided by the Trust Indenture Act, a vote by Holder(s) of Preferred
Securities, voting separately as a class, of more than 50% of the liquidation
amount (including the stated amount that would be paid on redemption,
liquidation or otherwise, plus accrued and unpaid Distributions to the date
upon which the voting percentages are determined) of all Preferred Securities.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Authorized Officers of such Person. Any Officers'
Certificate delivered with respect to compliance with a condition or covenant
provided for in this Preferred Securities Guarantee shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definition
relating thereto;
(b) a brief statement of the nature and scope of the
examination or investigation undertaken by each officer in rendering
the Officers' Certificate;
(c) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
4
<PAGE> 8
(d) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Person" means a legal person, including any individual,
corporation, estate, partnership, joint venture, association, joint stock
company, limited liability company, trust, unincorporated association, or
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
"Preferred Guarantee Trustee" means State Street Bank and
Trust Company, a Massachusetts trust company, until a Successor Preferred
Guarantee Trustee has been appointed and has accepted such appointment pursuant
to the terms of this Preferred Securities Guarantee and thereafter means each
such Successor Preferred Guarantee Trustee.
"Responsible Officer" means, with respect to the Preferred
Guarantee Trustee, any officer within the Corporate Trust Office of the
Preferred Guarantee Trustee, including any vice president, any assistant vice
president, any assistant secretary, the treasurer, any assistant treasurer or
other officer of the Corporate Trust Office of the Preferred Guarantee Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Successor Preferred Guarantee Trustee" means a successor
Preferred Guarantee Trustee possessing the qualifications to act as Preferred
Guarantee Trustee under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Securities" means the Common Securities and the
Preferred Securities.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Preferred Securities Guarantee is subject to the
provisions of the Trust Indenture Act that are required to be part of this
Preferred Securities Guarantee and shall, to the extent applicable, be governed
by such provisions; and
(b) if and to the extent that any provision of this
Preferred Securities Guarantee limits, qualifies or conflicts
5
<PAGE> 9
with the duties imposed by Section 310 to 317, inclusive, of the Trust
Indenture Act, such imposed duties shall control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Preferred Guarantee Trustee
with a list, in such form as the Preferred Guarantee Trustee may reasonably
require, of the names and addresses of the Holders of the Preferred Securities
("List of Holders") as of such date, (i) within 1 Business Day after January 1
and June 30 of each year, and (ii) at any other time within 30 days of receipt
by the Guarantor of a written request for a List of Holders as of a date no
more than 14 days before such List of Holders is given to the Preferred
Guarantee Trustee; provided, that the Guarantor shall not be obligated to
provide such List of Holders at any time the List of Holders does not differ
from the most recent List of Holders given to the Preferred Guarantee Trustee
by the Guarantor. The Preferred Guarantee Trustee may destroy any List of
Holders previously given to it on receipt of a new List of Holders.
(b) The Preferred Guarantee Trustee shall comply with its
obligations under Sections 311(a), 311(b) and Section 312(b) of the Trust
Indenture Act.
SECTION 2.3 Reports by the Preferred Guarantee Trustee
Within 60 days after May 15 of each year, the Preferred
Guarantee Trustee shall provide to the Holders of the Preferred Securities such
reports as are required by Section 313 of the Trust Indenture Act, if any, in
the form and in the manner provided by Section 313 of the Trust Indenture Act.
The Preferred Guarantee Trustee shall also comply with the requirements of
Section 313(d) of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Preferred Guarantee Trustee
The Guarantor shall provide to the Preferred Guarantee
Trustee[, the Securities and Exchange Commission and the Holders] such
documents, reports and information as required by Section 314 (if any) and the
compliance certificate required by Section 314 of the Trust Indenture Act in
the form, in the manner and at the times required by Section 314 of the Trust
Indenture Act.
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Preferred Guarantee Trustee
such evidence of compliance with any conditions precedent, if any, provided for
in this Preferred Securities Guarantee that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act. Any certificate or opinion
required to
6
<PAGE> 10
be given by an officer pursuant to Section 314(c)(1) may be given in the form
of an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in liquidation amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default and its consequences. Upon such
waiver, any such Event of Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Preferred Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 2.7 Event of Default; Notice
(a) The Preferred Guarantee Trustee shall, within 90 days
after the occurrence of an Event of Default, transmit by mail, first class
postage prepaid, to the Holders of the Preferred Securities, notices of all
Events of Default actually known to a Responsible Officer of the Preferred
Guarantee Trustee, unless such defaults have been cured before the giving of
such notice, provided, that, [except in the case of a default in the payment of
a Guarantee Payment,] the Preferred Guarantee Trustee shall be protected in
withholding such notice if and so long as [the Board of Directors, the
executive committee or a trust committee of directors and/or] a Responsible
Officer of the Preferred Guarantee Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the Preferred
Securities.
(b) The Preferred Guarantee Trustee shall not be deemed
to have knowledge of any Event of Default unless the Preferred Guarantee
Trustee shall have received written notice, or of which a Responsible Officer
of the Preferred Guarantee Trustee charged with the administration of the
Declaration shall have obtained actual knowledge.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically described
in this Preferred Securities Guarantee for the purposes of clause (i) of the
first proviso contained in Section 310(b) of the Trust Indenture Act.
7
<PAGE> 11
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
PREFERRED GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Preferred Guarantee Trustee
(a) This Preferred Securities Guarantee shall be held by
the Preferred Guarantee Trustee for the benefit of the Holders of the Preferred
Securities, and the Preferred Guarantee Trustee shall not transfer this
Preferred Securities Guarantee to any Person except a Holder of Preferred
Securities exercising his or her rights pursuant to Section 5.4(b) or to a
Successor Preferred Guarantee Trustee on acceptance by such Successor Preferred
Guarantee Trustee of its appointment to act as Successor Preferred Guarantee
Trustee. The right, title and interest of the Preferred Guarantee Trustee
shall automatically vest in any Successor Preferred Guarantee Trustee, and such
vesting and cessation of title shall be effective whether or not conveyancing
documents have been executed and delivered pursuant to the appointment of such
Successor Preferred Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Preferred Guarantee Trustee has occurred and is
continuing, the Preferred Guarantee Trustee shall enforce this Preferred
Securities Guarantee for the benefit of the Holders of the Preferred
Securities.
(c) The Preferred Guarantee Trustee, before the
occurrence of any Event of Default and after the curing of all Events of
Default that may have occurred, shall undertake to perform only such duties as
are specifically set forth in this Preferred Securities Guarantee, and no
implied covenants shall be read into this Preferred Securities Guarantee
against the Preferred Guarantee Trustee. In case an Event of Default has
occurred (that has not been cured or waived pursuant to Section 2.6) and is
actually known to a Responsible Officer of the Preferred Guarantee Trustee, the
Preferred Guarantee Trustee shall exercise such of the rights and powers vested
in it by this Preferred Securities Guarantee, and use the same degree of care
and skill in its exercise thereof, as a prudent person would exercise or use
under the circumstances in the conduct of his or her own affairs.
(d) No provision of this Preferred Securities Guarantee
shall be construed to relieve the Preferred Guarantee Trustee from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(i) prior to the occurrence of any Event of Default and
after the curing or waiving of all such Events of Default that may
have occurred:
8
<PAGE> 12
(A) the duties and obligations of the Preferred
Guarantee Trustee shall be determined solely by the express
provisions of this Preferred Securities Guarantee, and the
Preferred Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are specifically
set forth in this Preferred Securities Guarantee, and no
implied covenants or obligations shall be read into this
Preferred Securities Guarantee against the Preferred Guarantee
Trustee; and
(B) in the absence of bad faith on the part of
the Preferred Guarantee Trustee, the Preferred Guarantee
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon any certificates or opinions furnished to the
Preferred Guarantee Trustee and conforming to the requirements
of this Preferred Securities Guarantee; but in the case of any
such certificates or opinions that by any provision hereof are
specifically required to be furnished to the Preferred
Guarantee Trustee, the Preferred Guarantee Trustee shall be
under a duty to examine the same to determine whether or not
they conform to the requirements hereof or thereof;
(ii) the Preferred Guarantee Trustee shall not be liable
for any error of judgment made in good faith by a Responsible Officer
of the Preferred Guarantee Trustee, unless it shall be proved that the
Preferred Guarantee Trustee was negligent in ascertaining the
pertinent facts upon which such judgment was made;
(iii) the Preferred Guarantee Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith
in accordance with the direction of the Holders of not less than a
Majority in liquidation amount of the Preferred Securities relating to
the time, method and place of conducting any proceeding for any remedy
available to the Preferred Guarantee Trustee, or exercising any trust
or power conferred upon the Preferred Guarantee Trustee under this
Preferred Securities Guarantee; and
(iv) no provision of this Preferred Securities Guarantee
shall require the Preferred Guarantee Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the
performance of any of its duties or in the exercise of any of its
rights or powers, if the Preferred Guarantee Trustee shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this
Preferred Securities Guarantee or indemnity, reasonably satisfactory
9
<PAGE> 13
to the Preferred Guarantee Trustee, against such risk or liability is
not reasonably assured to it.
SECTION 3.2 Certain Rights of Preferred Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Preferred Guarantee Trustee may conclusively
rely, and shall be fully protected in acting or refraining from acting
upon, any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed, sent or
presented by the proper party or parties.
(ii) Any direction or act of the Guarantor contemplated by
this Preferred Securities Guarantee shall be sufficiently evidenced by
an Officers' Certificate.
(iii) Whenever, in the administration of this Preferred
Securities Guarantee, the Preferred Guarantee Trustee shall deem it
desirable that a matter be proved or established before taking,
suffering or omitting any action hereunder, the Preferred Guarantee
Trustee (unless other evidence is herein specifically prescribed) may,
in the absence of bad faith on its part, request and conclusively rely
upon an Officers' Certificate which, upon receipt of such request,
shall be promptly delivered by the Guarantor.
(iv) The Preferred Guarantee Trustee shall have no duty to
see to any recording, filing or registration of any instrument (or any
rerecording, refiling or registration thereof).
(v) The Preferred Guarantee Trustee may consult with
counsel of its selection, and the advice or opinion of such counsel
with respect to legal matters shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in accordance with such advice or
opinion. Such counsel may be counsel to the Guarantor or any of its
Affiliates and may include any of its employees. The Preferred
Guarantee Trustee shall have the right at any time to seek
instructions concerning the administration of this Preferred
Securities Guarantee from any court of competent jurisdiction.
(vi) The Preferred Guarantee Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by
this Preferred Securities Guarantee at the request or direction of any
Holder, unless such Holder shall have pro-
10
<PAGE> 14
vided to the Preferred Guarantee Trustee such security and indemnity,
reasonably satisfactory to the Preferred Guarantee Trustee,
against the costs, expenses (including attorneys' fees and expenses
and the expenses of the Preferred Guarantee Trustee's agents, nominees
or custodians) and liabilities that might be incurred by it in
complying with such request or direction, including such reasonable
advances as may be requested by the Preferred Guarantee Trustee;
provided that, nothing contained in this Section 3.2(a)(vi) shall be
taken to relieve the Preferred Guarantee Trustee, upon the occurrence
of an Event of Default, of its obligation to exercise the rights and
powers vested in it by this Preferred Securities Guarantee.
(vii) The Preferred Guarantee Trustee shall not be bound to
make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document, but the
Preferred Guarantee Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(viii) The Preferred Guarantee Trustee may execute any of
the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents, nominees, custodians or attorneys,
and the Preferred Guarantee Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(ix) Any action taken by the Preferred Guarantee Trustee
or its agents hereunder shall bind the Holders of the Preferred
Securities, and the signature of the Preferred Guarantee Trustee or
its agents alone shall be sufficient and effective to perform any such
action. No third party shall be required to inquire as to the
authority of the Preferred Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this Preferred
Securities Guarantee, both of which shall be conclusively evidenced by
the Preferred Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Preferred
Securities Guarantee the Preferred Guarantee Trustee shall deem it
desirable to receive instructions with respect to enforcing any remedy
or right or taking any other action hereunder, the Preferred Guarantee
Trustee (i) may request instructions from the Holders of a Majority in
liquidation amount of the Preferred Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action until such
instructions are received, and (iii) shall be
11
<PAGE> 15
protected in conclusively relying on or acting in accordance with such
instructions.
(xi) The Preferred Guarantee Trustee shall not be liable
for any action taken, suffered or omitted to be taken by it in good
faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Preferred
Securities Guarantee.
(b) No provision of this Preferred Securities Guarantee
shall be deemed to impose any duty or obligation on the Preferred Guarantee
Trustee to perform any act or acts or exercise any right, power, duty or
obligation conferred or imposed on it in any jurisdiction in which it shall be
illegal, or in which the Preferred Guarantee Trustee shall be unqualified or
incompetent in accordance with applicable law, to perform any such act or acts
or to exercise any such right, power, duty or obligation. No permissive power
or authority available to the Preferred Guarantee Trustee shall be construed to
be a duty.
SECTION 3.3. Not Responsible for Recitals or Issuance of Preferred
Securities Guarantee
The recitals contained in this Preferred Securities Guarantee
shall be taken as the statements of the Guarantor, and the Preferred Guarantee
Trustee does not assume any responsibility for their correctness. The
Preferred Guarantee Trustee makes no representation as to the validity or
sufficiency of this Preferred Securities Guarantee.
ARTICLE IV
PREFERRED GUARANTEE TRUSTEE
SECTION 4.1 Preferred Guarantee Trustee; Eligibility
(a) There shall at all times be a Preferred Guarantee
Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business under
the laws of the United States of America or any State or Territory
thereof or of the District of Columbia, or a corporation or Person
permitted by the Securities and Exchange Commission to act as an
institutional trustee under the Trust Indenture Act, authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars ($50,000,000),
and subject to supervision or examination by Federal, State,
Territorial or District of Columbia authority. If such corporation
publishes reports of condition at
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least annually, pursuant to law or to the requirements of the
supervising or examining authority referred to above, then, for the
purposes of this Section 4.1(a)(ii), the combined capital and surplus
of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so
published.
(b) If at any time the Preferred Guarantee Trustee shall
cease to be eligible to so act under Section 4.1(a), the Preferred Guarantee
Trustee shall immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Preferred Guarantee Trustee has or shall
acquire any "conflicting interest" within the meaning of Section 310(b) of the
Trust Indenture Act, the Preferred Guarantee Trustee and Guarantor shall in all
respects comply with the provisions of Section 310(b) of the Trust Indenture
Act.
SECTION 4.2 Appointment, Removal and Resignation of Preferred Guarantee
Trustee
(a) Subject to Section 4.2(b), the Preferred Guarantee
Trustee may be appointed or removed without cause at any time by the Guarantor
except during an Event of Default.
(b) The Preferred Guarantee Trustee shall not be removed
in accordance with Section 4.2(a) until a Successor Preferred Guarantee Trustee
has been appointed and has accepted such appointment by written instrument
executed by such Successor Preferred Guarantee Trustee and delivered to the
Guarantor.
(c) The Preferred Guarantee Trustee appointed to office
shall hold office until a Successor Preferred Guarantee Trustee shall have been
appointed or until its removal or resignation. The Preferred Guarantee Trustee
may resign from office (without need for prior or subsequent accounting) by an
instrument in writing executed by the Preferred Guarantee Trustee and delivered
to the Guarantor, which resignation shall not take effect until a Successor
Preferred Guarantee Trustee has been appointed and has accepted such
appointment by instrument in writing executed by such Successor Preferred
Guarantee Trustee and delivered to the Guarantor and the resigning Preferred
Guarantee Trustee.
(d) If no Successor Preferred Guarantee Trustee shall
have been appointed and accepted appointment as provided in this Section 4.2
within 60 days after delivery of an instrument of removal or resignation, the
Preferred Guarantee Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Preferred Guarantee
Trustee. Such court may thereupon, after prescribing such notice, if any, as
it may deem proper, appoint a Successor Preferred Guarantee Trustee.
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(e) No Preferred Guarantee Trustee shall be liable for
the acts or omissions to act of any Successor Preferred Guarantee Trustee.
(f) Upon termination of this Preferred Securities
Guarantee or removal or resignation of the Preferred Guarantee Trustee pursuant
to this Section 4.2, the Guarantor shall pay to the Preferred Guarantee Trustee
all amounts accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders the Guarantee Payments (without duplication of amounts
theretofore paid by the Issuer), as and when due, regardless of any defense,
right of set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be satisfied by direct
payment of the required amounts by the Guarantor to the Holders or by causing
the Issuer to pay such amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of this
Preferred Securities Guarantee and of any liability to which it applies or may
apply, presentment, demand for payment, any right to require a proceeding first
against the Preferred Guarantee Trustee, the Issuer or any other Person before
proceeding against the Guarantor, protest, notice of nonpayment, notice of
dishonor, notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of the
Guarantor under this Preferred Securities Guarantee shall in no way be affected
or impaired by reason of the happening from time to time of any of the
following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any express or
implied agreement, covenant, term or condition relating to the Preferred
Securities to be performed or observed by the Issuer;
(b) the extension of time for the payment by the Issuer
of all or any portion of the Distributions, Redemption Price, Liquidation
Distribution or any other sums payable under the terms of the Preferred
Securities or the extension of time
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for the performance of any other obligation under, arising out of, or in
connection with, the Preferred Securities (other than an extension of time for
payment of Distributions, Redemption Price, Liquidation Distribution or other
sum payable that results from the extension of any interest payment period on
the Debentures or any extension of the maturity date of the Debentures
permitted by the Indenture);
(c) any failure, omission, delay or lack of diligence on
the part of the Holders to enforce, assert or exercise any right, privilege,
power or remedy conferred on the Holders pursuant to the terms of the Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;
(d) the voluntary or involuntary liquidation,
dissolution, sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt of, or other similar proceedings affecting,
the Issuer or any of the assets of the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Preferred Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of a guarantor,
it being the intent of this Section 5.3 that the obligations of the Guarantor
hereunder shall be absolute and unconditional under any and all circumstances.
There shall be no obligation of the Holders to give notice to,
or obtain consent of, the Guarantor with respect to the happening of any of the
foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in liquidation amount of
the Preferred Securities have the right to direct the time, method and place of
conducting of any proceeding for any remedy available to the Preferred
Guarantee Trustee in respect of this Preferred Securities Guarantee or
exercising any trust or power conferred upon the Preferred Guarantee Trustee
under this Preferred Securities Guarantee.
(b) If the Preferred Guarantee Trustee fails to enforce
such Preferred Securities Guarantee, any Holder of Preferred Securities may
institute a legal proceeding directly against the Guarantor to enforce the
Preferred Guarantee
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Trustee's rights under this Preferred Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Preferred Guarantee
Trustee or any other person or entity. The Guarantor waives any right or
remedy to require that any action be brought first against the Issuer or any
other person or entity before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Preferred Securities Guarantee creates a guarantee of
payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any) rights of
the Holders of Preferred Securities against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Preferred Securities
Guarantee; provided, however, that the Guarantor shall not (except to the
extent required by mandatory provisions of law) be entitled to enforce or
exercise any right that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of payment under
this Preferred Securities Guarantee, if, at the time of any such payment, any
amounts are due and unpaid under this Preferred Securities Guarantee. If any
amount shall be paid to the Guarantor in violation of the preceding sentence,
the Guarantor agrees to hold such amount in trust for the Holders and to pay
over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations hereunder are
independent of the obligations of the Issuer with respect to the Preferred
Securities, and that the Guarantor shall be liable as principal and as debtor
hereunder to make Guarantee Payments pursuant to the terms of this Preferred
Securities Guarantee notwithstanding the occurrence of any event referred to in
subsections (a) through (g), inclusive, of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Preferred Securities remain outstanding, if
there shall have occurred an Event of Default or an event of default under the
Declaration, then (a) the Guarantor shall not declare or pay any dividend on,
make any distributions with respect to, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock (other than (i)
purchases or acquisitions of shares of Common Stock in connection
16
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with the satisfaction by the Guarantor of its obligations under any employee
benefit plans, (ii) as a result of a reclassification of the Guarantor's
capital stock or the exchange or conversion of one class or series of the
Guarantor's capital stock for another class or series of the Guarantor's
capital stock or (iii) the purchase of fractional interests in shares of the
Guarantor's capital stock pursuant to the conversion or exchange provisions of
such capital stock of the Guarantor or the security being converted or
exchanged) or make any guarantee payments with respect to the foregoing and (b)
the Guarantor shall not make any payment of interest, principal or premium, if
any, on or repay, repurchase or redeem any debt securities (including
guarantees) issued by the Guarantor which rank pari passu with or junior to the
Debentures.
SECTION 6.2 Ranking
This Preferred Securities Guarantee will constitute an
unsecured obligation of the Guarantor and will rank (i) subordinate and junior
in right of payment to all other liabilities of the Guarantor, (ii) pari passu
with the most senior preferred or preference stock now or hereafter issued by
the Guarantor and with any guarantee now or hereafter entered into by the
Guarantor in respect of any preferred or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's Common Stock.
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Preferred Securities Guarantee shall terminate upon (i)
full payment of the Redemption Price of all Preferred Securities, (ii) upon the
distribution of the Debentures to the Holders of all of the Preferred
Securities or (iii) upon full payment of the amounts payable in accordance with
the Declaration upon liquidation of the Issuer. Notwithstanding the foregoing,
this Preferred Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder of Preferred
Securities must restore payment of any sums paid under the Preferred Securities
or under this Preferred Securities Guarantee.
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ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 Exculpation
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Guarantor or any Covered Person for
any loss, damage or claim incurred by reason of any act or omission performed
or omitted by such Indemnified Person in good faith in accordance with this
Preferred Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority conferred on such
Indemnified Person by this Preferred Securities Guarantee or by law, except
that an Indemnified Person shall be liable for any such loss, damage or claim
incurred by reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in relying in
good faith upon the records of the Guarantor and upon such information,
opinions, reports or statements presented to the Guarantor by any Person as to
matters the Indemnified Person reasonably believes are within such other
Person's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Guarantor, including information,
opinions, reports or statements as to the value and amount of the assets,
liabilities, profits, losses, or any other facts pertinent to the existence and
amount of assets from which Distributions to Holders of Preferred Securities
might properly be paid.
SECTION 8.2 Indemnification
The Guarantor agrees to indemnify each Indemnified Person for,
and to hold each Indemnified Person harmless against, any and all loss,
liability, damage, claim or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against, or
investigating, any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The obligation to
indemnify as set forth in this Section 8.2 shall survive the termination of
this Preferred Securities Guarantee.
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ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Successors and Assigns
All guarantees and agreements contained in this Preferred
Securities Guarantee shall bind the successors, assigns, receivers, trustees
and representatives of the Guarantor and shall inure to the benefit of the
Holders of the Preferred Securities then outstanding. [Except in connection
with a consolidation, merger or sale involving the Guarantor that is permitted
under Article Eight of the Indenture and pursuant to which the assignee agrees
in writing to perform the Guarantor's obligations hereunder, the Guarantor
shall not assign its obligations hereunder.]
SECTION 9.2 Amendments
Except with respect to any changes that do not adversely
affect the rights of Holders in any material respect (in which case no consent
of Holders will be required), this Preferred Securities Guarantee may only be
amended with the prior approval of the Holders of at least a Majority in
liquidation amount (including the stated amount that would be paid on
redemption, liquidation or otherwise, plus accrued and unpaid Distributions to
the date upon which the voting percentages are determined) of all the
outstanding Preferred Securities. The provisions of Section [12.2] of the
Declaration with respect to meetings of Holders of the Securities apply to the
giving of such approval.
SECTION 9.3 Notices
All notices provided for in this Preferred Securities
Guarantee shall be in writing, duly signed by the party giving such notice, and
shall be delivered, telecopied or mailed by first class mail, as follows:
(a) If given to the Preferred Guarantee Trustee, at the Preferred
Guarantee Trustee's mailing address set forth below (or such other address as
the Preferred Guarantee Trustee may give notice of to the Holders of the
Preferred Securities):
State Street Bank and Trust Company
Two International Place
Boston, Massachusetts 02110
Attention: Corporate Trust Administration
Telecopy:
(b) If given to the Guarantor, at the Guarantor's mailing
address set forth below (or such other address as the Guarantor may give notice
of to the Holders of the Preferred Securities):
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<PAGE> 23
The Allstate Corporation
2775 Sanders Road
Northbrook, Illinois 60062
Attention: _____________
Telecopy: _____________
(c) If given to any Holder of Preferred Securities, at
the address set forth on the books and records of the Issuer.
All such notices shall be deemed to have been given when
received in person, telecopied with receipt confirmed, or mailed by first class
mail, postage prepaid except that if a notice or other document is refused
delivery or cannot be delivered because of a changed address of which no notice
was given, such notice or other document shall be deemed to have been delivered
on the date of such refusal or inability to deliver.
SECTION 9.4 Benefit
This Preferred Securities Guarantee is solely for the benefit
of the Holders of the Preferred Securities and, subject to Section 3.1(a), is
not separately transferable from the Preferred Securities.
SECTION 9.5 Governing Law
THIS PREFERRED SECURITIES GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THEREOF.
20
<PAGE> 24
THIS PREFERRED SECURITIES GUARANTEE is executed as of the day
and year first above written.
THE ALLSTATE CORPORATION, as
Guarantor
By:
---------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY,
as Preferred Guarantee Trustee
By:
---------------------------------
Name:
Title:
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<PAGE> 1
EXHIBIT 4.15
[FORM OF DEBT WARRANT AGREEMENT]
________________________________________________________________________________
THE ALLSTATE CORPORATION
and
____________________
As Warrant Agent
_________________
Warrant Agreement
Dated as of _________ __, ____
_________________
________________________________________________________________________________
<PAGE> 2
TABLE OF CONTENTS(1)
<TABLE>
<CAPTION>
Page
<S> <C> <C>
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Form of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Execution and Authentication of
Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 Temporary Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.5 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.6 Definition of Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.2 Duration of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.3 Exercise of Warrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE III
[REGISTRATION,] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 3.1 [Registration,] Exchange and Transfer
of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 3.2 Mutilated, Destroyed, Lost or Stolen
Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 3.3 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 3.4 Cancellation of Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
</TABLE>
____________________
(1) The Table of Contents is not a part of the Warrant Agree-
ment.
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
c
<S> <C>
Section 4.1 No Rights as Holders of Warrant Debt
Securities Conferred by Warrants or
Warrant Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 4.2 Holder of Warrant Certificate May
Enforce Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.1 Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.2 Conditions of Warrant Agent's
Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 5.3 Resignation, Removal and Appointment
of Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VI
MISCELLANEOUS
Section 6.1 Consolidations and Mergers of the
Company and Sales, Leases and
Conveyances Permitted Subject to
Certain Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 6.2 Rights and Duties of Successor
Corporation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.4 Notice and Demands to the Company
and Warrant Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 6.5 Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.7 Delivery of Prospectus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.8 Obtaining of Governmental Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.9 Persons Having Rights under Warrant
Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Section 6.10 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 6.12 Inspection of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Testimonium . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Signatures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Exhibit A - Form of Warrant Certificate
</TABLE>
ii
<PAGE> 4
This WARRANT AGREEMENT, dated as of __________ __, ____,
between The Allstate Corporation, a corporation duly organized and existing
under the laws of the State of Delaware (the "Company"), and
_____________________, a __________ organized and existing under the laws of
_______________, as Warrant Agent (the "Warrant Agent").
WHEREAS, the Company has entered into an Indenture, dated as
of ____________ __, ____ (the "Indenture), with State Street Bank and Trust
Company, a Massachusetts trust company, as trustee (such trustee, and any
successors to such trustee, herein called the "Trustee"), providing for the
issuance from time to time of its unsecured and unsubordinated notes or other
evidences of senior indebtedness, to be issued in one or more series as
provided in the Indenture.
WHEREAS, the Company proposes to sell [If Offered Debt
Securities and Warrants -- [title of Debt Securities being offered] (the
"Offered Debt Securities") with] warrant certificates (such warrant
certificates and other warrant certificates issued pursuant to this Agreement
herein called the "Warrant Certificates") evidencing one or more warrants
("Warrants" or, individually, a "Warrant") representing the right to purchase
[title of Debt Securities purchasable through exercise of Warrants ] (the
"Warrant Debt Securities"); and
WHEREAS, the Company desires the Warrant Agent to act on
behalf of the Company, and the Warrant Agent is willing to so act, in
connection with the issuance, exchange, exercise and replacement of the Warrant
Certificates, and in this Agreement wishes to set forth, among other things,
the form and provisions of the Warrant Certificates and the terms and
conditions on which they may be issued, exchanged, exercised and replaced;
NOW, THEREFORE, in consideration of the premises and of the
mutual agreements herein contained, the parties hereto agree as follows:
<PAGE> 5
ARTICLE I
ISSUANCE, EXECUTION AND COUNTERSIGNATURE
OF WARRANT CERTIFICATES
Section 1.1 Issuance of Warrant Certificates. [If Warrants
alone -- Upon issuance, each Warrant Certificate shall evidence one or more
Warrants.] [If Offered Debt Securities and Warrants -- Warrant Certificates
shall be [initially] issued in units with the Offered Debt Securities and shall
[not] be separately transferable [before ____________ __, ____ (the "Detachable
Date")]. Each such unit shall consist of a Warrant Certificate or Certificates
evidencing an aggregate of ____ Warrants for each $___________ principal amount
of Offered Debt Securities.] Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
Warrant Debt Securities in the aggregate principal amount of $________.
Section 1.2 Form of Warrant Certificates. The Warrant
Certificates (including the Form[s] of Exercise [and Assignment] to be set
forth on the reverse thereof) shall be in substantially the form set forth in
Exhibit A hereto, shall be printed, lithographed or engraved on steel engraved
borders (or in any other manner determined by the officers executing such
Warrant Certificates) and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange on which the
Warrant Certificates may be listed or as may, consistently herewith, be
determined by the officers executing such Warrant Certificates, as evidenced by
their execution of the Warrant Certificates.
Section 1.3 Execution and Authentication of Warrant
Certificates. The Warrant Certificates shall be executed on behalf of the
Company by its Chairman, its President or one of its Vice Presidents (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President") under its
corporate seal reproduced thereon attested to by its Treasurer or
2
<PAGE> 6
Secretary or one of its Assistant Treasurers or Assistant Secretaries. The
signature of any of these officers on the Warrant Certificates may be manual or
facsimile.
Warrant Certificates evidencing the right to purchase an
aggregate principal amount not exceeding $____________ of Warrant Debt
Securities (except as provided in Sections 1.4, 2.3(c), 3.1 and 3.2) may be
executed by the Company and delivered to the Warrant Agent upon the execution
of this Warrant Agreement or from time to time thereafter. The Warrant Agent
shall, upon receipt of Warrant Certificates duly executed on behalf of the
Company, authenticate Warrant Certificates evidencing Warrants representing the
right to purchase up to $_____________ aggregate principal amount of Warrant
Debt Securities and shall deliver such Warrant Certificates to or upon the
order of the Company. Subsequent to such original issuance of the Warrant
Certificates, the Warrant Agent shall authenticate a Warrant Certificate only
if the Warrant Certificate is issued in exchange or substitution for one or
more previously authenticated Warrant Certificates [If registered Warrants --
or in connection with their transfer], as hereinafter provided.
Each Warrant Certificate shall be dated the date of its
authentication by the Warrant Agent.
No Warrant Certificate shall be entitled to any benefit under
this Agreement or be valid or obligatory for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
authenticated by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence, and the only evidence, that the Warrant Certificate so
authenticated has been duly issued hereunder.
Warrant Certificates bearing the manual or facsimile
signatures of individuals who were at the time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Warrant Certificates or did not hold such offices at the date of such
Warrant Certificates.
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<PAGE> 7
Section 1.4 Temporary Warrant Certificates. Pending the
preparation of definitive Warrant Certificates, the Company may execute, and
upon the order of the Company the Warrant Agent shall authenticate and deliver,
temporary Warrant Certificates which are printed, lithographed, typewritten,
mimeographed or otherwise produced substantially of the tenor of the definitive
Warrant Certificates in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Warrant Certificates may determine, as evidenced by their
execution of such Warrant Certificates.
If temporary Warrant Certificates are issued, the Company will
cause definitive Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Warrant Certificates, the temporary
Warrant Certificates shall be exchangeable for definitive Warrant Certificates
upon surrender of the temporary Warrant Certificates at the corporate trust
office of the Warrant Agent [or ], without charge to the Holder (as
defined in Section 1.6 below). Upon surrender for cancellation of any one or
more temporary Warrant Certificates the Company shall execute and the Warrant
Agent shall authenticate and deliver in exchange therefor definitive Warrant
Certificates representing the same aggregate number of Warrants. Until so
exchanged, the temporary Warrant Certificates shall in all respects be entitled
to the same benefits under this Agreement as definitive Warrant Certificates.
Section 1.5 Payment of Taxes. The Company will pay all stamp
taxes and other duties, if any, to which, under the laws of the United States
of America or any State or political subdivision thereof, this Agreement or the
original issuance of the Warrant Certificates may be subject.
Section 1.6 Definition of Holder. The term "Holder" as used
herein shall mean [If Offered Debt Securities and Warrants which are not
immediately detachable --, prior to the Detachable Date, the registered owner
of the Offered Debt Security to which such Warrant Certificate was initially
attached, and, after such Detachable Date,] [if bearer Warrants, the bearer of
such Warrant Certificates] [if registered Warrants, the person in whose name at
the time such Warrant Certificate shall
4
<PAGE> 8
be registered upon the books to be maintained by the Warrant Agent for that
purpose pursuant to Section 3.01]. [If Offered Debt Securities and Warrants
which are not immediately detachable -- Prior to the Detachable Date, the
Company will, or will cause the registrar of the Offered Debt Securities to,
make available to the Warrant Agent current information as to Holders of the
Offered Debt Securities.]
ARTICLE II
WARRANT PRICE, DURATION AND EXERCISE OF WARRANTS
Section 2.1 Warrant Price. (2) During the period from
____________ __, ____ through and including ____________ __, ____, each Warrant
shall entitle the Holder thereof, subject to the provisions of this Agreement,
to purchase from the Company the principal amount of Warrant Debt Securities
stated in the Warrant Certificate at the exercise price of __% of the principal
amount thereof [plus accrued amortization, if any, of the original issue
discount of the Warrant Debt Securities] [plus accrued interest, if any, from
the most recent date from which interest shall have been paid on the Warrant
Debt Securities or, if no interest shall have been paid on the Warrant Debt
Securities, from ____________ __, ____].
[In each case, the original issue discount ($__________ for
each $1,000 principal amount of Warrant Debt Securities) will be amortized at a
___% annual rate, computed on a[n] [semi-]annual basis [using a 360-day year
consisting of twelve 30-day months].] Such exercise price of each Warrant is
referred to in this Agreement as the "Exercise Price."
Section 2.2 Duration of Warrants. Any Warrant evidenced by a
Warrant Certificate may be exercised at any time, as specified herein, on or
after [the date thereof] [____________ __, ____] and at or before the close of
business on ____________ __, ____ (the "Expira-
____________________
(2) Complete and modify the provisions of this Section as appro-
priate to reflect the exact terms of the Warrants and the
Warrant Debt Securities.
5
<PAGE> 9
tion Date"). Each Warrant not exercised at or before the close of business on
the Expiration Date shall become void, and all rights of the Holder of the
Warrant Certificate evidencing such Warrant under this Agreement or otherwise
shall cease.
Section 2.3 Exercise of Warrants. (a) During the period
specified in Section 2.2, any whole number of Warrants may be exercised by
surrendering the Warrant Certificate evidencing such Warrants at the place or
at the places set forth in the Warrant Certificate, with the purchase form set
forth in the Warrant Certificate duly executed, accompanied [by payment in
full, in lawful money of the United States of America, [in cash or by certified
check or official bank check in New York Clearing House funds]] [by surrender
of the [specified aggregate amount of [identified securities]] [by bank wire
transfer in immediately available funds], of the Exercise Price for each
Warrant exercised. The date on which payment in full of the Exercise Price for
a Warrant and the duly executed and completed Warrant Certificate are received
by the Warrant Agent shall be deemed to be the date on which such Warrant is
exercised. The Warrant Agent shall deposit all funds received by it as payment
for the exercise of Warrants to the account of the Company maintained with it
for such purpose and shall advise the Company by telephone at the end of each
day on which such a payment is received of the amount so deposited to its
account. The Warrant Agent shall promptly confirm such telephonic advice to
the Company in writing.
(b) The Warrant Agent shall from time to time, as
promptly as practicable after the exercise of any Warrants in accordance with
the terms and conditions of this Agreement and the Warrant Certificates, advise
the Company and the Trustee of (i) the number of Warrants so exercised, (ii)
the instructions of each Holder of the Warrant Certificates evidencing such
Warrants with respect to delivery of the Warrant Debt Securities to which such
Holder is entitled upon such exercise, and instructions of such Holder as to
delivery of Warrant Certificates evidencing the balance, if any, of the
Warrants remaining after such exercise, and (iii) such other information as the
Company or the Trustee shall reasonably require.
6
<PAGE> 10
(c) As soon as practicable after the exercise of any
Warrants, the Company shall issue, pursuant to the Indenture, in authorized
denominations, to or upon the order of the Holder of the Warrant Certificate
evidencing such Warrants, the Warrant Debt Security or Warrant Debt Securities
to which such Holder is entitled in fully registered form, registered in such
name or names as may be directed by such Holder; and, if fewer than all of the
Warrants evidenced by such Warrant Certificate were exercised, the Company
shall execute and an authorized officer of the Warrant Agent shall manually
authenticate and deliver a new Warrant Certificate evidencing the number of
Warrants remaining unexercised.
(d) The Company shall not be required to pay any stamp
or other tax or other governmental charge required to be paid in connection
with any transfer involved in the issue of the Warrant Debt Securities; and in
the event that any such transfer is involved, the Company shall not be required
to issue or deliver any Warrant Debt Securities until such tax or other charge
shall have been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
ARTICLE III
[REGISTRATION,] EXCHANGE, TRANSFER AND
SUBSTITUTION OF WARRANT CERTIFICATES
Section 3.1 [Registration,] Exchange and Transfer of Warrant
Certificates. [If registered Warrants -- The Warrant Agent shall keep, at its
corporate trust office [and at ____________________________________], books in
which, subject to such reasonable regulations as it may prescribe, it shall
register Warrant Certificates and transfers of outstanding Warrant
Certificates].
[If Offered Debt Securities and Warrants which are not
immediately detachable -- Prior to the Detachable Date, a Warrant Certificate
may be exchanged or transferred only together with the Offered Debt Security to
which such Warrant Certificate was initially attached, and only for the purpose
of effecting, or in conjunction with, an exchange or transfer of such Offered
Debt Security. Additionally, on or prior to the Detachable Date,
7
<PAGE> 11
each transfer or exchange of an Offered Debt Security [on the register of the
Offered Debt Securities] shall operate also to transfer or exchange the Warrant
Certificate or Certificates to which such Offered Debt Security was initially
attached. After the Detachable Date, upon] [If Offered Debt Securities and
Warrants which are immediately detachable or if Warrants alone -- Upon]
surrender at the corporate trust office of the Warrant Agent [or_____________
____ ______] of Warrant Certificates properly endorsed [or accompanied by
appropriate instruments of transfer] and accompanied by written instructions
for [transfer or] exchange, all in form satisfactory to the Company and the
Warrant Agent, such Warrant Certificates may be exchanged for other Warrant
Certificates [If registered Warrants -- or may be transferred in whole or in
part]; provided that Warrant Certificates issued in exchange for [or upon
transfer of] surrendered Warrant Certificates shall evidence the same aggregate
number of Warrants as the Warrant Certificates so surrendered. No service
charge shall be made for any exchange [or transfer] of Warrant Certificates,
but the Company may require payment of a sum sufficient to cover any stamp or
other tax or governmental charge that may be imposed in connection with any
such exchange [or transfer]. Whenever any Warrant Certificates are so
surrendered for exchange [or transfer], the Company shall execute and an
authorized officer of the Warrant Agent shall manually authenticate and deliver
to the person or persons entitled thereto a Warrant Certificate or Warrant
Certificates as so requested. The Warrant Agent shall not be required to
effect any exchange [or transfer] which would result in the issuance of a
Warrant Certificate evidencing a fraction of a Warrant or a number of full
Warrants and a fraction of a Warrant. All Warrant Certificates issued upon any
exchange [or transfer] of Warrant Certificates shall evidence the same
obligations, and be entitled to the same benefits under this Agreement, as the
Warrant Certificates surrendered for such exchange [or transfer].
Section 3.2 Mutilated, Destroyed, Lost or Stolen Warrant
Certificates. If any mutilated Warrant Certificate is surrendered to the
Warrant Agent, the Company shall execute and an officer of the Warrant Agent
shall manually authenticate and deliver in exchange therefore a new Warrant
Certificate of like tenor and principal amount and bearing a number not
contemporaneously outstanding. If there shall be delivered to the
8
<PAGE> 12
Company and the Warrant Agent (i) evidence to their satisfaction of the
destruction, loss or theft of any Warrant Certificate and of the ownership
thereof and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Warrant Agent that such Warrant Certificate has
been acquired by a bona fide purchaser, the Company shall execute and upon its
request an officer of the Warrant Agent shall manually authenticate and
deliver, in lieu of any such destroyed, lost or stolen Warrant Certificate, a
new Warrant Certificate of like tenor and principal amount and bearing a number
not contem- poraneously outstanding. Upon the issuance of any new Warrant
Certificate under this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Warrant Agent) connected therewith. Every new Warrant Certificate issued
pursuant to this Section in lieu of any destroyed, lost or stolen Warrant
Certificate shall evidence an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Warrant Certificate shall
be at any time enforceable by anyone, and shall be entitled to all the benefits
of this Agreement equally and proportionately with any and all other Warrant
Certificates duly issued hereunder. The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Warrant Certificates.
Section 3.3 Persons Deemed Owners. [If Offered Debt
Securities and Warrants which are not immediately detachable -- Prior to the
Detachable Date, the Company, the Warrant Agent and all other persons may treat
the registered owner of any Offered Debt Security as the owner of the Warrant
Certificates initially attached thereto for any purpose and as the person
entitled to exercise the rights represented by the Warrants evidenced by such
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date,] [If registered Warrants -- and prior to due presentment of a
Warrant Certificate for registration of transfer, the] [If Offered Debt
Securities and Warrants which are immediately detachable or Warrants alone --
The] Company, the
9
<PAGE> 13
Warrant Agent and all other persons may treat the Holder as the owner thereof
for any purpose and as the person entitled to exercise the rights represented
by the Warrants evidenced thereby, any notice to the contrary notwithstanding.
Section 3.4 Cancellation of Warrant Certificates. Any Warrant
Certificate surrendered for exchange [, transfer] or exercise of the Warrants
evidenced thereby shall, if surrendered to the Company, be delivered to the
Warrant Agent, and [If Warrant Certificates are issued in bearer form -- ,
except as provided below,] all Warrant Certificates surrendered or so delivered
to the Warrant Agent shall be promptly cancelled by it and shall not be
reissued and, except as expressly permitted by this Agreement, no Warrant
Certificate shall be issued hereunder in lieu or in exchange thereof. [If
Warrant Certificates are issued in bearer form -- Warrant Certificates
delivered to the Warrant Agent in exchange for Warrant Certificates of other
denominations may be retained by the Warrant Agent for reissue as authorized
hereunder.] The Company may at any time deliver to the Warrant Agent for
cancellation any Warrant Certificates previously issued hereunder which the
Company may have acquired in any manner whatsoever, and all Warrant
Certificates so delivered shall be promptly cancelled by the Warrant Agent. All
cancelled Warrant Certificates held by the Warrant Agent shall be disposed of,
as instructed by the Company, subject to applicable law.
ARTICLE IV
OTHER PROVISIONS RELATING TO RIGHTS
OF HOLDERS OF WARRANT CERTIFICATES
Section 4.1 No Rights as Holders of Warrant Debt Securities
Conferred by Warrants or Warrant Certificates. No Warrant Certificate or
Warrant evidenced thereby shall entitle the Holder thereof to any of the rights
of a Holder of the Warrant Debt Securities, including, without limitation, the
right to receive the payment of principal of (or premium, if any) or interest,
if any, on the Warrant Debt Securities or to enforce any of the covenants in
the Indenture.
10
<PAGE> 14
Section 4.2 Holder of Warrant Certificate May Enforce Rights.
Notwithstanding any of the provisions of this Agreement, any Holder of any
Warrant Certificate, without the consent of the Warrant Agent, the Trustee, the
holder of any Warrant Debt Securities or the Holder of any other Warrant
Certificate, may, on its own behalf and for its own benefit, enforce, and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce or otherwise in respect of, its right to exercise the
Warrant or Warrants evidenced by his Warrant Certificate in the manner provided
in the Warrant Certificates and in this Agreement.
ARTICLE V
CONCERNING THE WARRANT AGENT
Section 5.1 Warrant Agent. The Company hereby appoints
________________________ as Warrant Agent of the Company in respect of the
Warrants and the Warrant Certificates upon the terms and subject to the
conditions herein set forth, and ____________________________ hereby accepts
such appointment. The Warrant Agent shall have the power and authority granted
to and conferred upon it in the Warrant Certificates and hereby and such
further power and authority to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. All of the terms and provisions with
respect to such power and authority contained in the Warrant Certificates are
subject to and governed by the terms and provisions hereof.
Section 5.2 Conditions of Warrant Agent's Obligations. The
Warrant Agent accepts its obligations herein set forth, upon the terms and
conditions hereof, including the following, to all of which the Company agrees
and to all of which the rights hereunder of the Holders from time to time of
the Warrant Certificates shall be subject:
(a) Compensation and Indemnification. The Company agrees
promptly to pay the Warrant Agent the compensation to be agreed upon with the
Company for all services rendered by the Warrant Agent and to reimburse the
Warrant Agent for reasonable out-of-pocket expenses (including counsel fees)
incurred by the Warrant Agent in
11
<PAGE> 15
connection with the services rendered hereunder by the Warrant Agent. The
Company also agrees to indemnify the Warrant Agent for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad
faith on the part of the Warrant Agent, arising out of or in connection with
its acting as such Warrant Agent hereunder, including the reasonable costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance at any time of its powers or duties hereunder. The
obligations of the Company under this subsection (a) shall survive the exercise
of the Warrant Certificates and the resignation or removal of the Warrant
Agent.
(b) Agent for the Company. In acting under this Warrant
Agreement and in connection with the Warrant Certificates, the Warrant Agent is
acting solely as agent of the Company and does not assume any obligation or
relationship of agency or trust for or with any of the owners or Holders of the
Warrant Certificates.
(c) Counsel. The Warrant Agent may consult with
counsel, which may include counsel for the Company, and the written advice of
such counsel shall be full and complete authorization and protection in respect
of any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(d) Documents. The Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken or omitted by it
in reliance upon any notice, direction, consent, certificate, affidavit,
statement or other paper or document reasonably believed by it to be genuine
and to have been presented or signed by the proper parties.
(e) Certain Transactions. The Warrant Agent, any of its
officers, directors and employees, or any other agent of the Company, in its
individual or any other capacity, may become the owner of, or acquire any
interest in, any Warrant Certificates, with the same rights that it would have
if it were not such Warrant Agent, officer, director, employee or other agent,
and, to the extent permitted by applicable law, it may engage or be interested
in any financial or other transaction with the Company and may act on, or as
depositary, trustee or agent for, any committee or body of holders of
12
<PAGE> 16
Warrant Debt Securities or other obligations of the Company as freely as if it
were not such Warrant Agent, officer, director, employee or other agent.
Nothing in this Warrant Agreement shall be deemed to prevent the Warrant Agent
from acting as Trustee under the Indenture.
(f) No Liability for Interest. The Warrant Agent shall
not be under any liability for interest on any monies at any time received by
it pursuant to any of the provisions of this Agreement or of the Warrant
Certificates unless otherwise agreed to in writing by the Company and the
Warrant Agent and except for the negligence of the Warrant Agent.
(g) No Liability for Invalidity. The Warrant Agent
shall not incur any liability with respect to the validity of this Agreement or
any of the Warrant Certificates.
(h) No Responsibility for Representations. The Warrant
Agent shall not be responsible for any of the recitals or representations
contained herein or in the Warrant Certificates (except as to the Warrant
Agent's Certificate of Authentication thereon), all of which are made solely by
the Company.
(i) No Implied Obligations. The Warrant Agent shall be
obligated to perform such duties as are herein and in the Warrant Certificates
specifically set forth and no implied duties or obligations shall be read into
this Agreement or the Warrant Certificates against the Warrant Agent. The
Warrant Agent shall not be under any obligation to take any action hereunder
which may tend to involve it in any expense or liability, the payment of which
within a reasonable time is not, in its reasonable opinion, assured to it. The
Warrant Agent shall not be accountable or under any duty or responsibility for
the use by the Company of any of the Warrant Certificates authenticated by the
Warrant Agent and delivered by it to the Company pursuant to this Agreement or
for the application by the Company of the proceeds of the Warrant Certificates
or any exercise of the Warrants evidenced thereby. The Warrant Agent shall have
no duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained herein or in the Warrant
Certificates or in the Warrant Debt Securities or in the case of the receipt of
13
<PAGE> 17
any written demand from a Holder of a Warrant Certificate with respect to such
default, including, without limiting the generality of the foregoing, any duty
or responsibility to initiate or attempt to initiate any proceeding at law or
otherwise or, except as provided in Section 6.4 hereof, to make any demand upon
the Company.
Section 5.3 Resignation, Removal and Appointment of
Successor. (a) The Company agrees, for the benefit of the Holders from time to
time of the Warrant Certificates, that there shall at all times be a Warrant
Agent hereunder until all of the Warrant Certificates are no longer
exercisable.
(b) The Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which it desires its resignation to become effective;
provided that, without the consent of the Company, such date shall not be less
than [three months] after the date on which such notice is given. The Warrant
Agent hereunder may be removed at any time by the filing with it of an
instrument in writing signed by or on behalf of the Company and specifying such
removal and the date on which the Company expects such removal to become
effective. Such resignation or removal shall take effect upon the appointment
by the Company of a successor Warrant Agent (which shall be a bank or trust
company organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under
such laws to exercise corporate trust powers) by an instrument in writing filed
with such successor Warrant Agent and the acceptance of such appointment by
such successor Warrant Agent pursuant to Section 5.3(d).
(c) In case at any time the Warrant Agent shall resign,
or be removed, or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or shall file a voluntary petition in bankruptcy or make
an assignment for the benefit of its creditors or consent to the appointment of
a receiver or custodian of all or any substantial part of its property, or
shall admit in writing its inability to pay or meet its debts as they mature,
or if a receiver or custodian of it or of all or any substantial part of its
property shall be appointed, or if an order of any court shall be entered
approving
14
<PAGE> 18
any petition filed by or against it under the provisions of any applicable
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Warrant Agent or of its property or affairs, a successor Warrant
Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Warrant Agent. Upon the
appointment as aforesaid of a successor Warrant Agent and acceptance by the
latter of such appointment, the Warrant Agent so superseded shall cease to be
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Warrant Agent, without any further act, deed or conveyance, shall become vested
with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer,
deliver and pay over, and such successor Warrant Agent shall be entitled to
receive, all monies, securities and other property on deposit with or held by
such predecessor, as Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent
hereunder may be merged or converted or any corporation with which the Warrant
Agent may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Warrant Agent shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Warrant Agent, provided that it shall be qualified as aforesaid, shall
be the successor Warrant Agent under this Agreement without the execution or
filing of any paper or any further act on the part of any of the parties
hereto.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Consolidations and Mergers of the Company and
Sales, Leases and Conveyances Permitted
15
<PAGE> 19
Subject to Certain Conditions. To the extent permitted in the Indenture, the
Company may consolidate with, or sell or convey all or substantially all of its
assets to, or merge with or into any other corporation.
Section 6.2 Rights and Duties of Successor Corporation. In
case of any such consolidation, merger, sale, lease or conveyance and upon any
such assumption by the successor corporation, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein, and the predecessor corporation, except in the event of
a lease, shall be relieved of any further obligation under this Agreement and
the Warrants. Such successor corporation thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Warrant Debt Securities issuable pursuant to the terms hereof. All the
Warrant Debt Securities so issued shall in all respects have the same legal
rank and benefit under the Indenture as the Warrant Debt Securities theretofore
or thereafter issued in accordance with the terms of this Agreement and the
Indenture.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Warrant Debt Securities thereafter to be issued as may be
appropriate.
Section 6.3 Amendment. This Agreement may be amended by the
parties hereto, without the consent of the Holder of any Warrant Certificate,
for the purpose of curing any ambiguity, or of curing, correcting or
supplementing any defective provision contained herein, or making such
provisions in regard to matters or questions arising under this Agreement as
the Company may deem necessary or desirable; provided that such action shall
not adversely affect the interests of the Holders of the Warrant Certificates
in any material respect. The Warrant Agent may, but shall not be obligated to,
enter into any amendment to this Agreement which affects the Warrant Agent's
own rights, duties or immunities under this Agreement or otherwise.
Section 6.4 Notice and Demands to the Company and Warrant
Agent. If the Warrant Agent shall receive any notice or demand addressed to the
Company by the Holder
16
<PAGE> 20
of a Warrant Certificate pursuant to the provisions of the Warrant
Certificates, the Warrant Agent shall promptly forward such notice or demand to
the Company.
Section 6.5 Addresses. Any communications from the Company to
the Warrant Agent with respect to this Agreement shall be addressed to
___________________, Attention: ___________________, and any communications
from the Warrant Agent to the Company with respect to this Agreement shall be
addressed to The Allstate Corporation, 2775 Sanders Road, Northbrook, Illinois
60062, Attention: ________________ (or such other address as shall be specified
in writing by the Warrant Agent or by the Company).
Section 6.6 Governing Law. This Agreement and each Warrant
Certificate issued hereunder shall be governed by and construed in accordance
with the laws of the State of New York.
Section 6.7 Delivery of Prospectus. The Company will furnish
to the Warrant Agent sufficient copies of a prospectus, appropriately
supplemented, relating to the Warrant Debt Securities (the "Prospectus"), and
the Warrant Agent agrees that, upon the exercise of any Warrant Certificate,
the Warrant Agent will deliver to the person designated to receive Warrant Debt
Securities, prior to or concurrently with the delivery of such Securities, a
Prospectus.
Section 6.8 Obtaining of Governmental Approvals. The Company
will from time to time take all action which may be necessary to obtain and
keep effective any and all permits, consents and approvals of governmental
agencies and authorities and securities acts filings under United States
Federal and State laws (including, without limitation, the maintenance of the
effectiveness of a registration statement in respect of the Warrant Debt
Securities under the Securities Act to 1933, as amended), which may be or
become required in connection with exercise of the Warrant Certificates and the
original issuance and delivery of the Warrant Debt Securities.
Section 6.9 Persons Having Rights under Warrant Agreement.
Nothing in this Agreement expressed or implied and nothing that may be inferred
from any of the provisions hereof is intended, or shall be construed, to
17
<PAGE> 21
confer upon, or give to, any person or corporation other than the Company, the
Warrant Agent and the Holders of the Warrant Certificates any right, remedy or
claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be for
the sole and exclusive benefit of the Company and the Warrant Agent and their
successors and of the Holders of the Warrant Certificates.
Section 6.10 Headings. The Article and Section headings
herein and the Table of Contents are for convenience of reference only and
shall not affect the construction hereof.
Section 6.11 Counterparts. This Agreement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original; but such counterparts shall together constitute but one and the same
instrument.
Section 6.12 Inspection of Agreement. A copy of this
Agreement shall be available at all reasonable times at the principal corporate
trust office of the Warrant Agent [and at ____________] for inspection by the
Holder of any Warrant Certificate. The Warrant Agent may require such Holder to
submit its Warrant Certificate for inspection by it.
18
<PAGE> 22
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above written.
THE ALLSTATE CORPORATION
By_____________________________________
Name:
Title:
Attest:
_______________________________________
Name:
Title:
[NAME OF WARRANT AGENT]
By_____________________________________
Name:
Title:
Attest:
_______________________________________
Name:
Title:
19
<PAGE> 23
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
[Face]
Form of Legend if Offered [Prior to __________, this Warrant
Debt Securities with Warrants Certificate may be transferred or
which are not immediately detachable: exchanged if and only if the [Title of
Offered Debt Security] to which it was
initially attached is so transferred or
exchanged.]
Form of Legend if Warrants [Prior to ____________, Warrants
are not immediately exercisable: evidenced by this Warrant Certificate
cannot be exercised.]
EXERCISABLE ONLY IF AUTHENTICATED BY THE WARRANT
AGENT AS PROVIDED HEREIN
VOID AFTER THE CLOSE OF BUSINESS ON _______ __, ____
THE ALLSTATE CORPORATION
Warrant Certificate representing
Warrants to purchase
[Title of Warrant Debt Securities]
as described herein
______________________
No. _________ Warrants
This certifies that [the bearer is the]
[_______________________ or registered assigns is the registered] owner of the
above indicated number of Warrants, each Warrant entitling such [bearer [If
Offered Debt Securities and Warrants which are not immediately detachable --,
subject to the bearer qualifying as a "Holder" of this Warrant Certificate, as
hereinafter defined] [registered owner] to purchase, at any time [after the
close of business on _________ __, ____, and] on or before the close of
business on __________ __,
A - 1
<PAGE> 24
____, $_______ principal amount of [Title of Warrant Debt Securities] (the
"Warrant Debt Securities") of The Allstate Corporation (the "Company"), issued
or to be issued under the Indenture (as hereinafter defined), on the following
basis.* [During the period from ________ __, ____ through and including
________ __, ____, each Warrant shall entitle the Holder thereof, subject to
the provisions of this Agreement, to purchase from the Company the principal
amount of Warrant Debt Securities stated above in this Warrant Certificate at
the exercise price of ___% of the principal amount thereof [plus accrued
amortization, if any, of the original issue discount of the Warrant Debt
Securities] [plus accrued interest, if any, from the most recent date from
which interest shall have been paid on the Warrant Debt Securities or, if no
interest shall have been paid on the Warrant Debt Securities, from __________
__, ____]; [in each case, the original issue discount ($________ for each
$1,000 principal amount of Warrant Debt Securities) will be amortized at a ___%
annual rate, computed on a[n] [semi-]annual basis[, using a 360-day year
consisting of twelve 30-day months] [(the "Exercise Price")]. The Holder of
this Warrant Certificate may exercise the Warrants evidenced hereby, in whole
or in part, by surrendering this Warrant Certificate, with the purchase form
set forth hereon duly completed, accompanied [by payment in full, in lawful
money of the United States of America, [in cash or by certified check or
official bank check in New York Clearing House funds] [by bank wire transfer in
immediately available funds]] [by surrender of the [specified aggregate
principal amount of [identified securities]], the Exercise Price for each
Warrant exercised, to the Warrant Agent (as hereinafter defined), at the
corporate trust office of [name of Warrant Agent], or its successor as warrant
agent (the "Warrant Agent") [or at ________,] at the addresses specified on the
reverse hereof and upon compliance with and subject to the conditions set forth
herein and in the Warrant Agreement (as hereinafter defined). This Warrant
Certificate may be exercised only for the purchase of Warrant Debt Securities
in the principal amount of [$1,000] or any integral multiple thereof.
__________________________________
* Complete and modify the following provisions as appropriate to reflect
the terms of the Warrants and the Warrant Debt Securities.
A - 2
<PAGE> 25
The term "Holder" as used herein shall mean [If Offered Debt
Securities and Warrants which are not immediately detachable -- , prior to
___________ __, ____ (the "Detachable Date"), the registered owner of the
Company's [title of Offered Debt Securities] to which such Warrant Certificate
was initially attached, and after such Detachable Date,] [the bearer of such
Warrant Certificate] [the person in whose name at the time such Warrant
Certificate shall be registered upon the books to be maintained by the Warrant
Agent for that purpose pursuant to Section 3.01 of the Warrant Agreement].
Any whole number of Warrants evidenced by this Warrant
Certificate may be exercised to purchase Warrant Debt Securities in registered
form. Upon any exercise of fewer than all of the Warrants evidenced by this
Warrant Certificate, there shall be issued to the [bearer] [registered owner]
hereof a new Warrant Certificate evidencing the number of Warrants remaining
unexercised.
This Warrant Certificate is issued under and in accordance
with the Warrant Agreement dated as of ____________ __, ____ (the "Warrant
Agreement"), between the Company and the Warrant Agent and is subject to the
terms and provisions contained in the Warrant Agreement, to all of which terms
and provisions the Holder of this Warrant Certificate consents by acceptance
hereof. Copies of the Warrant Agreement are on file at the above-mentioned
office at the Warrant Agent [and at ____________].
The Warrant Debt Securities to be issued and delivered upon
the exercise of warrants evidenced by this Warrant Certificate will be issued
under and in accordance with an Indenture, dated as of ____________ __, ____
(the "Indenture"), between the Company and State Street Bank and Trust Company,
a Massachusetts trust company, as trustee (such trustee, and any successors to
such trustee, the "Trustee") and will be subject to the terms and provisions
contained in the Warrant Debt Securities and in the Indenture. Copies of the
Indenture, including the form of the Warrant Debt Securities, are on file at
the corporate trust office of the Trustee [and at ____________________].
[If Offered Debt Securities and Warrants which are not
immediately detachable -- Prior to
A - 3
<PAGE> 26
___________ __, ____ (the "Detachable Date"), this Warrant Certificate may be
exchanged or transferred only together with the [title of Offered Debt
Security] (the "Offered Debt Security") to which this Warrant Certificate was
initially attached, and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Debt Security. Additionally, on
or prior to the Detachable Date each transfer of such Offered Debt Security on
the register of the Offered Debt Securities shall operate also to transfer this
Warrant Certificate. After the Detachable Date, this] [If Offered Debt
Securities and Warrants which are immediately detachable or Warrants alone --
This] Warrant Certificate, and all rights hereunder, may be transferred [If
bearer Warrants -- by delivery and the Company and the Warrant Agent may treat
the bearer hereof as the owner for all purposes] [If registered Warrants --
when surrendered at the corporate trust office of the Warrant Agent [or
___________] by the registered owner or his assigns, in person or by an
attorney duly authorized in writing, in the manner and subject to the
limitations provided in the Warrant Agreement].
[If Offered Debt Securities and Warrants which are not
immediately detachable -- Except as provided in the immediately preceding
paragraph, after] [If Offered Debt Securities and Warrants which are
immediately detachable or Warrants alone -- After] authentication by the
Warrant Agent and prior to the expiration of this Warrant Certificate, this
Warrant Certificate may be exchanged at the corporate trust office at the
Warrant Agent [or at _______________] for Warrant Certificates representing the
same aggregate number of Warrants.
This Warrant Certificate shall not entitle the [bearer]
[registered owner] hereof to any of the rights of a [registered] [holder] of
the Warrant Debt Securities, including, without limitation, the right to
receive payments of principal (and premium, if any) or interest, if any, on the
Warrant Debt Securities or to enforce any of the covenants of the Indenture.
Reference is hereby made to the further provisions of this
Warrant 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.
A - 4
<PAGE> 27
This Warrant Certificate shall not be valid or obligatory for
any purpose until authenticated by the Warrant Agent.
IN WITNESS WHEREOF, the Company has caused this Warrant
Certificate to be duly executed.
Dated: ____________ __, ____
THE ALLSTATE CORPORATION
By:_________________________
Name:
Title:
Attest:
___________________________________________
Certificate of Authentication
This is one of the Warrant Certificates referred to in the
within-mentioned Warrant Agreement.
___________________________________________
As Warrant Agent
By:________________________________________
Authorized Signature
A - 5
<PAGE> 28
[FORM OF WARRANT CERTIFICATE]
[REVERSE]
(Instructions for Exercise of Warrants)
To exercise any Warrants evidenced hereby, the Holder of this
Warrant Certificate must pay [in cash or by certified check or official bank
check in New York Clearing House funds or by bank wire transfer in immediately
available funds], the Exercise Price in full for each of the Warrants
exercised, to _______________, Corporate Trust Department, ______________,
Attn: _____________ [or ________________], which payment should specify the
name of the Holder of this Warrant Certificate and the number of Warrants
exercised by such Holder. In addition, the Holder of this Warrant Certificate
should complete the information required below and present in person or mail by
registered mail this Warrant Certificate to the Warrant Agent at the addresses
set forth below.
[FORM OF EXERCISE]
(To be executed upon exercise of Warrants.)
The undersigned hereby irrevocably elects to exercise ____
Warrants, represented by this Warrant Certificate, to purchase $________
principal amount of the [Title of Warrant Debt Securities] (the "Warrant Debt
Securities") of The Allstate Corporation and represents that he has tendered
payment for such Warrant Debt Securities [in cash or by certified check or
official bank check in New York Clearing House funds or by bank wire transfer
in immediately available funds] to the order of The Allstate Corporation, c/o
Treasurer, in the amount of $_________ in accordance with the terms hereof.
The undersigned requests that said principal amount of Warrant Debt Securities
be in fully registered form, in the authorized denominations, registered in
such names and delivered, all as specified in accordance with the instructions
set forth below.
If said principal amount of Warrant Debt Securities is less
than all of the Warrant Debt Securities purchasable hereunder, the undersigned
requests that a new Warrant Certificate representing the remaining balance of
the Warrants evidenced hereby be issued and
A - 6
<PAGE> 29
delivered to the undersigned unless otherwise specified in the instructions
below.
Dated:
Name___________________________________
__________________________________
(Insert Social Security or Other
Identifying Number of Holder) Address________________________________
_______________________________________
Signature______________________________
[If registered warrant -- (Signature
must conform in all respects to name of
holder as specified on the face of the
Warrant Certificate and must bear a
signature guarantee by a bank, trust
company or member broker of the New
York, Chicago or Pacific Stock
Exchange.)]
This Warrant may be exercised at the following addresses:
By hand at ______________________________________
______________________________________
_____________________________________
______________________________________
By mail at ______________________________________
______________________________________
______________________________________
______________________________________
(Instructions as to form and delivery of Warrant Debt Securities and/or Warrant
Certificates):
A - 7
<PAGE> 30
[FORM OF ASSIGNMENT]
(TO BE EXECUTED TO TRANSFER
THE WARRANT CERTIFICATE)
FOR VALUE RECEIVED ____________________ hereby sells, assigns
and transfers unto
Please insert social security
or other identifying number
_____________________________
____________________________
(Please print name and
address including zip code)
________________________________________________________________________________
the right represented by the within Warrant Certificate and does hereby
irrevocably constitute and appoint ________________, Attorney, to transfer said
Warrant Certificate on the books of the Warrant Agent with full power of
substitution.
Dated:
_______________________________________
Signature
(Signature must conform in all respects
to name of holder as specified
on the face of this Warrant Certificate
and must bear a signature guarantee
by a bank, trust company or member
broker of the New York, Chicago or
Pacific Stock Exchange)
Signature Guaranteed:
__________________________________]
A - 8
<PAGE> 1
[KIRKLAND & ELLIS LETTERHEAD]
EXHIBIT 5.1
August 18, 1998
The Allstate Corporation
2775 Sanders Road
Northbrook, Illinois 60062
Re: Registration of Securities
Ladies and Gentlemen:
We are acting as counsel to The Allstate Corporation, a Delaware
corporation (the "Company"), in connection with the proposed registration by
the Company of the Company's senior and subordinated unsecured debt securities
(the "Debt Securities"), preferred stock, par value $1.00 per share (the
"Preferred Stock"), preferred securities guarantees (the "Preferred
Securities Guarantees") and warrants to purchase Debt Securities (the
"Warrants") (collectively, the "Securities"), pursuant to a Registration
Statement on Form S-3 to be filed with the Securities and Exchange Commission
(the "Commission") on or about August 18, 1998 under the Securities Act of
1933, as amended (the "Securities Act") (such Registration Statement, as
amended or supplemented, is hereinafter referred to as the "Registration
Statement"). The Debt Securities are to be issued pursuant to the Indenture,
dated December 16, 1997 between the Company and State Street Bank and Trust
Company, as Trustee as may be supplemented by one or more supplemental
indentures (as so supplemented, the "Senior Indenture") or the Indenture,
dated November 25, 1996, between the Company and State Street Bank and Trust
Company, as Trustee, as may be supplemented by one or more supplemental
indentures in the form set forth as an exhibit to the Registration Statement
(as so supplemented, the "Subordinated Indenture," together with the Senior
Indenture, the "Indentures"). The Warrants are to be issued pursuant to a Debt
Warrant Agreement in the form set forth as an exhibit to the Registration
Statement to be entered into by the Company and a bank or trust company as Debt
Warrant Agent (the "Warrant Agreement"). The Preferred Securities Guarantees
are to be issued pursuant to a Preferred Securities Guarantee Agreement in the
form set forth as an exhibit to the Registration Statement (the "Guarantee
Agreement") to be entered into by the Company and State Street Bank and Trust
Company, as Trustee (the "Guarantee Trustee").
In that connection, we have examined originals, or copies certified or
otherwise identified to our satisfaction, of such documents, corporate records
and other instruments as we have deemed necessary for the purpose of this
opinion, including (i) the corporate and organizational documents of the
Company, (ii) minutes and records of the corporate proceedings of the Company
with respect to the issuance of the Securities and (iii) the Registration
Statement and the exhibits thereto.
For the purposes of this opinion, we have assumed the authenticity of all
documents submitted to us as originals, the conformity to the originals of all
documents submitted to us as copies and the authenticity of the originals
submitted to us as copies. We have also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto other than the Company, and the due authorization, execution and
delivery of all documents by the parties thereto other than the Company. As to
any facts material to the opinions expressed herein which we have not
independently established or verified, we have relied upon statements and
representations of officers and other representatives of the Company and others.
Based upon and subject to the foregoing qualification, assumptions and
limitations and the further limitations set forth below, we are of the opinion
that:
<PAGE> 2
(1) The Company is a corporation existing and in good standing under the
General Corporation Law of the State of Delaware.
(2) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) the
appropriate corporate action has been taken by the Company to authorize the
form, terms, execution and delivery of any supplemental indentures and the
terms of any series of Debt Securities, (iii) the Debt Securities shall have
been issued in the form and containing the terms described in the Registration
Statement, the Indentures and such corporate action and any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities are obtained, and (iv) the Debt Securities have
been authenticated by the Trustee, the Debt Securities, when issued, will be
binding obligations of the Company, enforceable against the Company in
accordance with their terms.
(3) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) appropriate
corporate action has been taken to authorize the issuance of Preferred Stock, to
fix the terms thereof and to authorize the execution and filing of a Certificate
of Designations relating thereto with the Secretary of State of the State of
Delaware, (iii) such Certificate of Designations shall have been executed by
duly authorized officers of the Company and so filed by the Company, all in
accordance with the laws of the State of Delaware and any legally required
consents, approvals, authorizations and other orders of the Commission and any
other regulatory authorities are obtained, (iv) Preferred Stock with terms so
fixed shall have been duly issued and delivered by the Company against payment
therefor in accordance with such corporate action, and (vi) certificates
representing shares of Preferred Stock have been duly executed by the duly
authorized officers of the Company in accordance with applicable law, such
Preferred Stock will be validly issued, fully paid and nonassessable.
(4) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) the appropriate
corporate action has been taken by the Company to authorize the form, terms,
execution and delivery of the Warrant Agreement (including a form of certificate
evidencing the Warrants) and (iii) Warrants with such terms are duly executed,
attested, issued and delivered by duly authorized officers of the Company
against payment in the manner provided for in the Warrant Agreement and such
corporate action, such Warrants will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
(5) When, as and if (i) the Registration Statement shall have become
effective pursuant to the provisions of the Securities Act, (ii) appropriate
corporate action has been taken by the Company to authorize the form, terms,
execution and delivery of the Guarantee Agreement with respect to preferred
securities ("Preferred Securities") to be issued by Allstate Financing III,
Allstate Financing IV, Allstate Financing V or Allstate Financing VI (the
"Allstate Trusts"), (iii) making and performing the Guarantee Agreement is
necessary or convenient to the conduct, promotion or attainment of the business
of the Company and (iv) such Preferred Securities shall have been duly
authorized for issuance by the applicable Allstate Trust's declaration of
trust, as the same may be amended or restated from time to time (a
"Declaration"), and duly executed issued and delivered by duly authorized
trustees of the applicable Allstate Trust against payment of the consideration
therefor and authenticated by the Guarantee Trustee, all in the manner provided
for in the Declaration, such Guarantee Agreement will
<PAGE> 3
constitute a valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms.
Our opinions expressed above are subject to the qualifications that we
express no opinion as to the applicability of, compliance with, or effect of
(i) any bankruptcy, insolvency, reorganization, fraudulent transfer,
fraudulent conveyance, moratorium or other similar law or judicially developed
doctrine in this area (such as substantive consolidation or equitable
subordination) affecting the enforcement of creditors' rights generally, (ii)
general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), (iii) public policy considerations which
may limit the rights of parties to obtain certain remedies and (iv) any laws
except the laws of the State of New York and the General Corporation Law of the
State of Delaware. We advise you that issues addressed by this letter may be
governed in whole or in part by other laws, but we express no opinion as to
whether any relevant difference exists between the laws upon which our opinions
are based and any other laws which may actually govern. In addition, our
opinions expressed above regarding the enforceability of any guarantee are
further limited by principles of law that may render guarantees unenforceable
under circumstances where (i) the guaranteed obligations are materially
modified without the consent of the guarantor or (ii) the beneficiary releases
the primary obligor.
For purposes of the opinions in paragraph 1, we have relied exclusively
upon a recent certificate issued by the Delaware Secretary of State, and such
opinion is not intended to provide any conclusion or assurance beyond that
conveyed by such certificate. We have assumed without investigation that there
has been no relevant change or development between the date of such certificate
and the date of this letter. For purposes of the other opinions above, we have
assumed that (i) the Preferred Securities will have been validly issued and will
be fully paid and non-assessable and (ii) the Declaration of each Allstate Trust
has been duly authorized, executed and delivered by, and constitutes a valid,
binding and enforceable obligation of, the parties thereto and that the Allstate
Trusts have been duly organized and are validly existing in good standing as
business trusts under Delaware law.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement. We also consent to the reference to our firm under the
heading "Legal Opinion" in the Registration Statement. In giving this consent,
we do not thereby admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of the rules and regulations of
the Commission.
We do not find it necessary for the purposes of this opinion, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the issuance of the Securities.
This opinion is limited to the specific issues addressed herein, and no
opinion may be inferred or implied beyond that expressly stated herein. We
assume no obligation to revise or supplement this opinion should the present
laws of the State of New York or the General Corporation Law of the State of
Delaware be changed by legislative action, judicial decision or otherwise.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purposes.
Yours very truly,
/s/ KIRKLAND & ELLIS
-------------------------------------
<PAGE> 1
EXHIBIT 5.2
August 18, 1998
Allstate Financing III
c/o The Allstate Corporation
2775 Sanders Road
Northbrook, IL 60062
Re: Allstate Financing III
Ladies and Gentlemen:
We have acted as special Delaware counsel for Allstate Financing III, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. This opinion is being furnished to you at your request.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals, forms
or copies furnished to us of the following:
(a) The Declaration of Trust of the Trust, dated as of August 16, 1996,
among The Allstate Corporation, a Delaware corporation (the "Company"), and the
trustees of the Trust named therein;
(b) The Certificate of Trust of the Trust, as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary of State") and
effective as of August 21, 1996 (the "Certificate");
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a prospectus (the "Prospectus") relating to the $2,000,000,000
principal amount of Debt Securities, Debt Warrants and Preferred Stock (each
such term being used as defined in the Prospectus) of the Company, as proposed
to be filed by the Company, the Trust and others
<PAGE> 2
as set forth therein with the Securities and Exchange Commission on or about
August 18, 1998;
(d) A form of Amended and Restated Declaration of Trust, to be entered
into among the Company, as Depositor, the trustees of the Trust named therein,
and the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant thereto (including Annex I, Exhibit A-1 and Exhibit
A-2 thereto) (the "Declaration"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated August 17,
1998, obtained from the Secretary of State.
Unless otherwise defined herein, all capitalized terms used in this
opinion letter shall have the respective meanings provided in the Declaration,
except that reference herein to any document shall mean such document as in
effect on the date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, (iii) the genuineness of all signatures, and (iv) such documents
submitted to us in final or execution form have not been and will not be altered
or amended in any respect material to our opinions as expressed in this letter
and conform in all material respects to the final, executed originals of such
documents.
For purposes of this opinion letter, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the creation, operation, and termination of the Trust, and that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) that there are no proceedings, pending or contemplated, for the
merger, consolidation, liquidation, dissolution or termination of the Trust,
(iii) except to the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, formation or organization, (iv) the legal
capacity of each natural person who is a party to the documents examined by us,
(v) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (vi) that each of the parties to the documents examined by us has
duly authorized, executed
<PAGE> 3
and delivered such documents, (vii) the receipt by each Person to whom a
Preferred Security is to be issued by the Trust (collectively, the "Preferred
Securities Holders") of an appropriate certificate for such Preferred Security,
and the payment for the Preferred Security acquired by it, in accordance with
the Declaration and the Registration Statement, and (viii) that the Preferred
Securities are issued to the Preferred Securities Holders in accordance with
the Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
The opinions in this letter are limited to the laws of the State of
Delaware (excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq).
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Securities Holders, as beneficial owners of the Trust,
will 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. We note that the Preferred Securities
Holders may be obligated to make payments as provided in the Declaration.
We consent to the filing of this opinion letter with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinion" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the and regulations of the Securities
and Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion letter may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Morris, James, Hitchens & Williams
MML/lse
<PAGE> 1
EXHIBIT 5.3
August 18, 1998
Allstate Financing IV
c/o The Allstate Corporation
2775 Sanders Road
Northbrook, IL 60062
Re: Allstate Financing IV
Ladies and Gentlemen:
We have acted as special Delaware counsel for Allstate Financing IV, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. This opinion is being furnished to you at your request.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals, forms
or copies furnished to us of the following:
(a) The Declaration of Trust of the Trust, dated as of August 16, 1996,
among The Allstate Corporation, a Delaware corporation (the "Company"), and the
trustees of the Trust named therein;
(b) The Certificate of Trust of the Trust, as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary of State") and
effective as of August 21, 1996 (the "Certificate");
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a prospectus (the "Prospectus") relating to the $2,000,000,000
principal amount of Debt Securities, Debt Warrants and Preferred Stock (each
such term being used as defined in the Prospectus) of the Company, as proposed
o be filed by the Company, the Trust and others
<PAGE> 2
as set forth therein with the Securities and Exchange Commission on or about
August 18, 1998;
(d) A form of Amended and Restated Declaration of Trust, to be entered
into among the Company, as Depositor, the trustees of the Trust named therein,
and the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant thereto (including Annex I, Exhibit A-1 and Exhibit
A-2 thereto) (the "Declaration"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated August 17,
1998, obtained from the Secretary of State.
Unless otherwise defined herein, all capitalized terms used in this
opinion letter shall have the respective meanings provided in the Declaration,
except that reference herein to any document shall mean such document as in
effect on the date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, (iii) the genuineness of all signatures, and (iv) such documents
submitted to us in final or execution form have not been and will not be altered
or amended in any respect material to our opinions as expressed in this letter
and conform in all material respects to the final, executed originals of such
documents.
For purposes of this opinion letter, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the creation, operation, and termination of the Trust, and that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) that there are no proceedings, pending or contemplated, for the
merger, consolidation, liquidation, dissolution or termination of the Trust,
(iii) except to the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, formation or organization, (iv) the legal
capacity of each natural person who is a party to the documents examined by us,
(v) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (vi) that each of the parties to the documents examined by us has
duly authorized, executed
<PAGE> 3
and delivered such documents, (vii) the receipt by each Person to whom a
Preferred Security is to be issued by the Trust (collectively, the "Preferred
Securities Holders") of an appropriate certificate for such Preferred Security,
and the payment for the Preferred Security acquired by it, in accordance with
the Declaration and the Registration Statement, and (viii) that the Preferred
Securities are issued to the Preferred Securities Holders in accordance with
the Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
The opinions in this letter are limited to the laws of the State of
Delaware (excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq).
2. The Prefered Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Securities Holders, as beneficial owners of the Trust,
will 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. We note that the Preferred Securities
Holders may be obligated to make payments as provided in the Declaration.
We consent to the filing of this opinion letter with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinion" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the and regulations of the Securities
and Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion letter may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Morris, James, Hitchens & Williams
MML/lse
<PAGE> 1
EXHIBIT 5.4
August 18, 1998
Allstate Financing V
c/o The Allstate Corporation
2775 Sanders Road
Northbrook, IL 60062
Re: Allstate Financing V
Ladies and Gentlemen:
We have acted as special Delaware counsel for Allstate Financing V, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. This opinion is being furnished to you at your request.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals, forms
or copies furnished to us of the following:
(a) The Declaration of Trust of the Trust, dated as of August 14, 1998,
among The Allstate Corporation, a Delaware corporation (the "Company"), and the
trustees of the Trust named therein;
(b) The Certificate of Trust of the Trust, as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
August 14, 1998 (the "Certificate");
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a prospectus (the "Prospectus") relating to the $2,000,000,000
principal amount of Debt Securities, Debt Warrants and Preferred Stock (each
such term being used as defined in the Prospectus) of the Company, as proposed
to be filed by the Company, the Trust and others
<PAGE> 2
as set forth therein with the Securities and Exchange Commission on or about
August 18, 1998;
(d) A form of Amended and Restated Declaration of Trust, to be entered
into among the Company, as Depositor, the trustees of the Trust named therein,
and the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant thereto (including Annex I, Exhibit A-1 and Exhibit
A-2 thereto) (the "Declaration"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated August 17,
1998, obtained from the Secretary of State.
Unless otherwise defined herein, all capitalized terms used in this
opinion letter shall have the respective meanings provided in the Declaration,
except that reference herein to any document shall mean such document as in
effect on the date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, (iii) the genuineness of all signatures, and (iv) such documents
submitted to us in final or execution form have not been and will not be altered
or amended in any respect material to our opinions as expressed in this letter
and conform in all material respects to the final, executed originals of such
documents.
For purposes of this opinion letter, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the creation, operation, and termination of the Trust, and that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) that there are no proceedings, pending or contemplated, for the
merger, consolidation, liquidation, dissolution or termination of the Trust,
(iii) except to the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, formation or organization, (iv) the legal
capacity of each natural person who is a party to the documents examined by us,
(v) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (vi) that each of the parties to the documents examined by us has
duly authorized, executed
<PAGE> 3
and delivered such documents, (vii) the receipt by each Person to whom a
Preferred Security is to be issued by the Trust (collectively, the "Preferred
Securities Holders") of an appropriate certificate for such Preferred Security,
and the payment for the Preferred Security acquired by it, in accordance with
the Declaration and the Registration Statement, and (viii) that the Preferred
Securities are issued to the Preferred Securities Holders in accordance with
the Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
The opinions in this letter are limited to the laws of the State of
Delaware (excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (12 Del. C.
Section 3801, et seq).
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Securities Holders, as beneficial owners of the Trust,
will 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. We note that the Preferred Securities
Holders may be obligated to make payments as provided in the Declaration.
We consent to the filing of this opinion letter with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinion" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the and regulations of the Securities
and Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion letter may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Morris, James, Hitchens & Williams
MML/lse
<PAGE> 1
EXHIBIT 5.5
August 18, 1998
Allstate Financing VI
c/o The Allstate Corporation
2775 Sanders Road
Northbrook, IL 60062
Re: Allstate Financing VI
Ladies and Gentlemen:
We have acted as special Delaware counsel for Allstate Financing VI, a
Delaware business trust (the "Trust"), in connection with the matters set forth
herein. This opinion is being furnished to you at your request.
For purposes of giving the opinions hereinafter set forth, our
examination of documents has been limited to the examination of originals, forms
or copies furnished to us of the following:
(a) The Declaration of Trust of the Trust, dated as of August 14, 1998,
among The Allstate Corporation, a Delaware corporation (the "Company"), and the
trustees of the Trust named therein;
(b) The Certificate of Trust of the Trust, as filed in the office of
the Secretary of State of the State of Delaware (the "Secretary of State") on
August 14, 1998 (the "Certificate");
(c) The Registration Statement (the "Registration Statement") on Form
S-3, including a prospectus (the "Prospectus") relating to the $2,000,000,000
principal amount of Debt Securities, Debt Warrants and Preferred Stock (each
such term being used as defined in the Prospectus) of the Company, as proposed
to be filed by the Company, the Trust and others
<PAGE> 2
as set forth therein with the Securities and Exchange Commission on or about
August 18, 1998;
(d) A form of Amended and Restated Declaration of Trust, to be entered
into among the Company, as Depositor, the trustees of the Trust named therein,
and the holders, from time to time, of undivided beneficial interests in the
Trust to be issued pursuant thereto (including Annex I, Exhibit A-1 and Exhibit
A-2 thereto) (the "Declaration"), attached as an exhibit to the Registration
Statement; and
(e) A Certificate of Good Standing for the Trust, dated August 17,
1998, obtained from the Secretary of State.
Unless otherwise defined herein, all capitalized terms used in this
opinion letter shall have the respective meanings provided in the Declaration,
except that reference herein to any document shall mean such document as in
effect on the date hereof.
For the purposes of this opinion letter, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
listed in paragraphs (a) through (e) above) that is referred to in or
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that is
inconsistent with the opinions stated herein. We have conducted no independent
factual investigation of our own but rather have relied solely upon the
foregoing documents, the statements and information set forth therein and the
additional matters recited or assumed herein, all of which we have assumed to be
true, complete and accurate in all material respects.
With respect to all documents examined by us, we have assumed (i) the
authenticity of all documents submitted to us as authentic originals, (ii) the
conformity with the originals of all documents submitted to us as copies or
forms, (iii) the genuineness of all signatures, and (iv) such documents
submitted to us in final or execution form have not been and will not be altered
or amended in any respect material to our opinions as expressed in this letter
and conform in all material respects to the final, executed originals of such
documents.
For purposes of this opinion letter, we have assumed (i) that the
Declaration constitutes the entire agreement among the parties thereto with
respect to the creation, operation, and termination of the Trust, and that the
Declaration and the Certificate are in full force and effect and have not been
amended, (ii) that there are no proceedings, pending or contemplated, for the
merger, consolidation, liquidation, dissolution or termination of the Trust,
(iii) except to the extent provided in paragraph 1 below, the due creation, due
formation or due organization, as the case may be, and valid existence in good
standing of each party to the documents examined by us under the laws of the
jurisdiction governing its creation, formation or organization, (iv) the legal
capacity of each natural person who is a party to the documents examined by us,
(v) that each of the parties to the documents examined by us has the power and
authority to execute and deliver, and to perform its obligations under, such
documents, (vi) that each of the parties to the documents examined by us has
duly authorized, executed
<PAGE> 3
and delivered such documents, (vii) the receipt by each Person to whom a
Preferred Security is to be issued by the Trust (collectively, the "Preferred
Securities Holders") of an appropriate certificate for such Preferred Security,
and the payment for the Preferred Security acquired by it, in accordance with
the Declaration and the Registration Statement, and (viii) that the Preferred
Securities are issued to the Preferred Securities Holders in accordance with the
Declaration and the Registration Statement. We have not participated in the
preparation of the Registration Statement and assume no responsibility for its
contents.
The opinions in this letter are limited to the laws of the State of
Delaware (excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto.
Based upon the foregoing, and subject to the assumptions,
qualifications, limitations and exceptions set forth herein, we are of the
opinion that:
1. The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Business Trust Act (12 Del. C.
Sections 3801, et seq).
2. The Preferred Securities will represent valid and, subject to the
qualifications set forth in paragraph 3 below, fully paid and nonassessable
undivided beneficial interests in the assets of the Trust.
3. The Preferred Securities Holders, as beneficial owners of the Trust,
will 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. We note that the Preferred Securities
Holders may be obligated to make payments as provided in the Declaration.
We consent to the filing of this opinion letter with the Securities and
Exchange Commission as an exhibit to the Registration Statement. In addition, we
hereby consent to the use of our name under the heading "Legal Opinion" in the
Prospectus. In giving the foregoing consents, we do not thereby admit that we
come within the category of Persons whose consent is required under Section 7 of
the Securities Act of 1933, as amended, or the and regulations of the Securities
and Exchange Commission thereunder. Except as stated above, without our prior
written consent, this opinion letter may not be furnished or quoted to, or
relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Morris, James, Hitchens & Williams
MML/lse
<PAGE> 1
EXHIBIT 12
The Allstate Corporation
Computation of Earnings to Fixed Charges Ratio
($ in millions)
<TABLE>
<CAPTION>
FOR THE SIX MONTHS
ENDED JUNE 30, FOR THE YEAR ENDED DECEMBER 31,
1998 1997 1997 1996 1995 1994 1993
-------- -------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
1. Income from continuing operations before income
taxes, equity in net income of unconsolidated
subsidiary, and dividends on preferred
securities of subsidiary trusts $ 2,622 $ 1,989 $ 4,434 $ 2,669 $ 2,421 $ 120 $ 1,282
2. Equity in income of 100% owned subsidiary - - - - 49 107 94
3. Dividends from less than 50% owned subsidiary 1 1 2 2 2 - -
-------- -------- -------- -------- -------- -------- --------
4. Income from continuing operations before
income taxes $ 2,623 $ 1,990 $ 4,436 $ 2,671 $ 2,472 $ 227 $ 1,376
-------- -------- -------- -------- -------- -------- --------
Fixed Charges:
5. Interest on indebtedness $ 60 $ 48 $ 100 $ 95 $ 81 $ 60 $ 81
6. Interest factor of annual rental expense 43 37 80 71 90 95 96
-------- -------- -------- -------- -------- -------- --------
7. Total fixed charges (5+6) $ 103 $ 85 $ 180 $ 166 $ 171 $ 155 $ 177
-------- -------- -------- -------- -------- -------- --------
8. Dividends on redeemable preferred securities 19 19 59 6 - - -
9. Total fixed charges and dividends on redeemable
preferred securities (7+8) $ 122 $ 104 $ 239 $ 172 $ 171 $ 155 $ 177
-------- -------- -------- -------- -------- -------- --------
10. Income from continuing operations before
income taxes and fixed charges (4+7) $ 2,726 $ 2,075 $ 4,616 $ 2,837 $ 2,643 $ 382 $ 1,553
======== ======== ======== ========= ======== ======== ========
11. Ratio of earnings to fixed charges (A) 22.3X 19.9X 19.3X 16.5X 15.5X 2.5X 8.8X
======== ======== ======== ========= ======== ======== ========
12. Interest credited to contractholder funds $ 627 $ 604 $ 1,209 $ 1,196 $ 1,191 $ 1,079 $ 1,104
13. Total fixed charges including dividends on
redeemable preferred securities and interest
credited to contractholder funds (9+12) $ 749 $ 708 $ 1,448 $ 1,368 $ 1,362 $ 1,234 $ 1,281
-------- -------- -------- -------- -------- -------- --------
14. Income from continuing operations before
income taxes and fixed charges including
interest credited to contractholder
funds (4+7+12) $ 3,353 $ 2,679 $ 5,825 $ 4,033 $ 3,834 $ 1,461 $ 2,657
======== ======== ======== ========= ======== ======== ========
15. Ratio of earnings to fixed charges, including
interest credited to contractholder funds 4.5X 3.8X 4.0X 2.9X 2.8X 1.2X 2.1X
======== ======== ======== ========= ======== ======== ========
</TABLE>
(A) The Company has authority to issue up to 25,000,000 shares of preferred
stock, par value $1.00 per share; however, there are currently no shares
outstanding and the Company does not have a preferred stock dividend obligation.
Therefore, the Ratio of Earnings to Fixed Charges and Preferred Stock Dividends
is equal to the Ratio of Earnings to Fixed Charges and is not disclosed
separately.
<PAGE> 1
EXHIBIT 15
The Allstate Corporation
Allstate Plaza
Northbrook, Illinois
We have made a review, in accordance with standards established by the American
Institute of Certified Public Accountants, of the unaudited interim information
of The Allstate Corporation and subsidiaries for the three-month periods ended
March 31, 1998 and 1997 and the three- and six-month periods ended June 30, 1998
and 1997, as indicated in our reports dated May 13, 1998 and August 13, 1998,
respectively; because we did not perform an audit, we expressed no opinion on
that information.
We are aware that our reports referred to above, which were included in your
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998 and June
30, 1998, are being used in this Registration Statement.
We are also aware that the aforementioned reports, pursuant to Rule 436(c)
under the Securities Act of 1933, are not considered a part of the Registration
Statement prepared or certified by an accountant or a report prepared or
certified by an accountant within the meaning of Sections 7 and 11 of that Act.
/s/ Deloitte & Touche LLP
Chicago, Illinois
August 18, 1998
<PAGE> 1
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
The Allstate Corporation on Form S-3 of our reports dated February 20, 1998,
appearing in and incorporated by reference in the Annual Report on Form 10-K of
The Allstate Corporation for the year ended December 31, 1997, and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
this Registration Statement.
/s/ Deloitte & Touche LLP
Chicago, Illinois
August 18, 1998
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
THE ALLSTATE CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 36-3871531
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2775 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 402-5000
(Address of principal executive offices) (Zip Code)
SENIOR DEBT SECURITIES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its parent,
State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15.NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now in
effect, is on file with the Securities and Exchange Commission
as Exhibit 1 to Amendment No. 1 to the Statement of Eligibility
and Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with the
Securities and Exchange Commission as Exhibit 2 to Amendment No.
1 to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse Shoe,
Inc. (File No. 22-17940) and is incorporated herein by reference
thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise corporate
trust powers is on file with the Securities and Exchange
Commission as Exhibit 3 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4 to
the Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Eastern Edison
Company (File No. 33-37823) and is incorporated herein by
reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the Act
is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its supervising
or examining authority is annexed hereto as Exhibit 7 and made a
part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates
to matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 18TH DAY OF AUGUST, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
------------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by THE
ALLSTATE CORPORATION of its SENIOR DEBT SECURITIES, we hereby consent that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
-----------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
DATED: AUGUST 18, 1998
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business March 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................... 1,144,309
Interest-bearing balances ........................................................ 9,914,704
Securities ....................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary .............................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 6,433,627
Allowance for loan and lease losses ................. 88,820
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .......................... 6,344,807
Assets held in trading accounts .................................................................. 1, 117,547
Premises and fixed assets ........................................................................ 453,576
Other real estate owned .......................................................................... 100
Investments in unconsolidated subsidiaries ....................................................... 44,985
Customers' liability to this bank on acceptances outstanding ..................................... 66,149
Intangible assets ................................................................................ 263,249
Other assets...................................................................................... 1,066,572
---------------
Total assets ..................................................................................... 38,552,020
===============
LIABILITIES
Deposits:
In domestic offices .............................................................. 9,266,492
Noninterest-bearing ....................... 6,824,432
Interest-bearing .......................... 2,442,060
In foreign offices and Edge subsidiary ........................................... 14,385,048
Noninterest-bearing ....................... 75,909
Interest-bearing .......................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .............................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities ................................. 171,783
Trading liabilities............................................................................... 1,078,189
Other borrowed money ............................................................................. 406,583
Subordinated notes and debentures ................................................................ 0
Bank's liability on acceptances executed and outstanding ......................................... 66,149
Other liabilities ................................................................................ 878,947
Total liabilities ................................................................................ 36,203,185
---------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................... 0
Common stock ..................................................................................... 29,931
Surplus .......................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses) ..................... 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities............................ 18,136
Cumulative foreign currency translation adjustments ............................................. (6,256)
Total equity capital ............................................................................. 2,348,835
---------------
Total liabilities and equity capital ............................................................. 38,552,020
---------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE> 1
EXHIBIT 25.2
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
_________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
THE ALLSTATE CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 36-3871531
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2775 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 402-5000
(Address of principal executive offices) (Zip Code)
SUBORDINATED DEBT SECURITIES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System,
Washington, D.C., Federal Deposit Insurance Corporation,
Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS
IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 18TH DAY OF AUGUST, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
-----------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by THE
ALLSTATE CORPORATION of its SUBORDINATED DEBT Securities, we hereby consent that
reports of examination by Federal, State, Territorial or District authorities
may be furnished by such authorities to the Securities and Exchange Commission
upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
--------------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
DATED: AUGUST 18, 1998
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business March 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................... 1,144,309
Interest-bearing balances ........................................................ 9,914,704
Securities ....................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary .............................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 6,433,627
Allowance for loan and lease losses ................. 88,820
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .......................... 6,344,807
Assets held in trading accounts .................................................................. 1, 117,547
Premises and fixed assets ........................................................................ 453,576
Other real estate owned .......................................................................... 100
Investments in unconsolidated subsidiaries ....................................................... 44,985
Customers' liability to this bank on acceptances outstanding ..................................... 66,149
Intangible assets ................................................................................ 263,249
Other assets...................................................................................... 1,066,572
---------------
Total assets ..................................................................................... 38,552,020
===============
LIABILITIES
Deposits:
In domestic offices .............................................................. 9,266,492
Noninterest-bearing ....................... 6,824,432
Interest-bearing .......................... 2,442,060
In foreign offices and Edge subsidiary ........................................... 14,385,048
Noninterest-bearing ....................... 75,909
Interest-bearing .......................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .............................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities ................................. 171,783
Trading liabilities............................................................................... 1,078,189
Other borrowed money ............................................................................. 406,583
Subordinated notes and debentures ................................................................ 0
Bank's liability on acceptances executed and outstanding ......................................... 66,149
Other liabilities ................................................................................ 878,947
Total liabilities ................................................................................ 36,203,185
---------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................... 0
Common stock ..................................................................................... 29,931
Surplus .......................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses) ..................... 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities............................ 18,136
Cumulative foreign currency translation adjustments ............................................. (6,256)
Total equity capital ............................................................................. 2,348,835
---------------
Total liabilities and equity capital ............................................................. 38,552,020
---------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE> 1
EXHIBIT 25.3
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
__________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
ALLSTATE FINANCING III
(Exact name of obligor as specified in its charter)
DELAWARE TO BE APPLIED FOR
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
C/O THE ALLSTATE CORPORATION
2775 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 402-5000
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit 2
to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 18TH DAY OF AUGUST, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
------------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by ALLSTATE
FINANCING III of its PREFERRED SECURITIES, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
-------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
DATED: AUGUST 18, 1998
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business March 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................... 1,144,309
Interest-bearing balances ........................................................ 9,914,704
Securities ....................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary .............................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 6,433,627
Allowance for loan and lease losses ................. 88,820
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .......................... 6,344,807
Assets held in trading accounts .................................................................. 1, 117,547
Premises and fixed assets ........................................................................ 453,576
Other real estate owned .......................................................................... 100
Investments in unconsolidated subsidiaries ....................................................... 44,985
Customers' liability to this bank on acceptances outstanding ..................................... 66,149
Intangible assets ................................................................................ 263,249
Other assets...................................................................................... 1,066,572
---------------
Total assets ..................................................................................... 38,552,020
===============
LIABILITIES
Deposits:
In domestic offices .............................................................. 9,266,492
Noninterest-bearing ....................... 6,824,432
Interest-bearing .......................... 2,442,060
In foreign offices and Edge subsidiary ........................................... 14,385,048
Noninterest-bearing ....................... 75,909
Interest-bearing .......................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .............................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities ................................. 171,783
Trading liabilities............................................................................... 1,078,189
Other borrowed money ............................................................................. 406,583
Subordinated notes and debentures ................................................................ 0
Bank's liability on acceptances executed and outstanding ......................................... 66,149
Other liabilities ................................................................................ 878,947
Total liabilities ................................................................................ 36,203,185
---------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................... 0
Common stock ..................................................................................... 29,931
Surplus .......................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses) ..................... 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities............................ 18,136
Cumulative foreign currency translation adjustments ............................................. (6,256)
Total equity capital ............................................................................. 2,348,835
---------------
Total liabilities and equity capital ............................................................. 38,552,020
---------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE> 1
EXHIBIT 25.4
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
ALLSTATE FINANCING IV
(Exact name of obligor as specified in its charter)
DELAWARE TO BE APPLIED FOR
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
C/O THE ALLSTATE CORPORATION
2775 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 402-5000
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF aSSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit 2
to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of
Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 18TH DAY OF AUGUST, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
---------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by ALLSTATE
FINANCING IV of its PREFERRED SECURITIES, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s ROLAND S. GUSTAFSEN
---------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
DATED: AUGUST 18, 1998
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business March 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................... 1,144,309
Interest-bearing balances ........................................................ 9,914,704
Securities ....................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary .............................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 6,433,627
Allowance for loan and lease losses ................. 88,820
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .......................... 6,344,807
Assets held in trading accounts .................................................................. 1, 117,547
Premises and fixed assets ........................................................................ 453,576
Other real estate owned .......................................................................... 100
Investments in unconsolidated subsidiaries ....................................................... 44,985
Customers' liability to this bank on acceptances outstanding ..................................... 66,149
Intangible assets ................................................................................ 263,249
Other assets...................................................................................... 1,066,572
---------------
Total assets ..................................................................................... 38,552,020
===============
LIABILITIES
Deposits:
In domestic offices .............................................................. 9,266,492
Noninterest-bearing ....................... 6,824,432
Interest-bearing .......................... 2,442,060
In foreign offices and Edge subsidiary ........................................... 14,385,048
Noninterest-bearing ....................... 75,909
Interest-bearing .......................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .............................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities ................................. 171,783
Trading liabilities............................................................................... 1,078,189
Other borrowed money ............................................................................. 406,583
Subordinated notes and debentures ................................................................ 0
Bank's liability on acceptances executed and outstanding ......................................... 66,149
Other liabilities ................................................................................ 878,947
Total liabilities ................................................................................ 36,203,185
---------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................... 0
Common stock ..................................................................................... 29,931
Surplus .......................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses) ..................... 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities............................ 18,136
Cumulative foreign currency translation adjustments ............................................. (6,256)
Total equity capital ............................................................................. 2,348,835
---------------
Total liabilities and equity capital ............................................................. 38,552,020
---------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE> 1
EXHIBIT 25.5
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
ALLSTATE FINANCING V
--------------------
(Exact name of obligor as specified in its charter)
DELAWARE TO BE APPLIED FOR
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
C/O THE ALLSTATE CORPORATION
2775 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 402-5000
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF aSSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVIsING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by
the undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 18TH DAY OF AUGUST, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
-----------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by ALLSTATE
FINANCING V of its PREFERRED SECURITIES, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
----------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
DATED: AUGUST 18, 1998
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business March 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................... 1,144,309
Interest-bearing balances ........................................................ 9,914,704
Securities ....................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary .............................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 6,433,627
Allowance for loan and lease losses ................. 88,820
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .......................... 6,344,807
Assets held in trading accounts .................................................................. 1, 117,547
Premises and fixed assets ........................................................................ 453,576
Other real estate owned .......................................................................... 100
Investments in unconsolidated subsidiaries ....................................................... 44,985
Customers' liability to this bank on acceptances outstanding ..................................... 66,149
Intangible assets ................................................................................ 263,249
Other assets...................................................................................... 1,066,572
---------------
Total assets ..................................................................................... 38,552,020
===============
LIABILITIES
Deposits:
In domestic offices .............................................................. 9,266,492
Noninterest-bearing ....................... 6,824,432
Interest-bearing .......................... 2,442,060
In foreign offices and Edge subsidiary ........................................... 14,385,048
Noninterest-bearing ....................... 75,909
Interest-bearing .......................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .............................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities ................................. 171,783
Trading liabilities............................................................................... 1,078,189
Other borrowed money ............................................................................. 406,583
Subordinated notes and debentures ................................................................ 0
Bank's liability on acceptances executed and outstanding ......................................... 66,149
Other liabilities ................................................................................ 878,947
Total liabilities ................................................................................ 36,203,185
---------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................... 0
Common stock ..................................................................................... 29,931
Surplus .......................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses) ..................... 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities............................ 18,136
Cumulative foreign currency translation adjustments ............................................. (6,256)
Total equity capital ............................................................................. 2,348,835
---------------
Total liabilities and equity capital ............................................................. 38,552,020
---------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE> 1
EXHIBIT 25.6
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
__________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
ALLSTATE FINANCING VI
(Exact name of obligor as specified in its charter)
DELAWARE TO BE APPLIED FOR
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
C/O THE ALLSTATE CORPORATION
2775 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 402-5000
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement
of Eligibility and Qualification of Trustee (Form T-1)
filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF aSSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the
trustee to commence business was necessary or issued is on
file with the Securities and Exchange Commission as Exhibit 2
to Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Morse
Shoe, Inc. (File No. 22-17940) and is incorporated herein by
reference thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of
Eastern Edison Company (File No. 33-37823) and is
incorporated herein by reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS IN
DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(B) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVIsING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 18TH DAY OF AUGUST, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
-----------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by ALLSTATE
FINANCING VI of its PREFERRED SECURITIES, we hereby consent that reports of
examination by Federal, State, Territorial or District authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
-----------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
DATED: AUGUST 18, 1998
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business March 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................... 1,144,309
Interest-bearing balances ........................................................ 9,914,704
Securities ....................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary .............................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 6,433,627
Allowance for loan and lease losses ................. 88,820
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .......................... 6,344,807
Assets held in trading accounts .................................................................. 1, 117,547
Premises and fixed assets ........................................................................ 453,576
Other real estate owned .......................................................................... 100
Investments in unconsolidated subsidiaries ....................................................... 44,985
Customers' liability to this bank on acceptances outstanding ..................................... 66,149
Intangible assets ................................................................................ 263,249
Other assets...................................................................................... 1,066,572
---------------
Total assets ..................................................................................... 38,552,020
===============
LIABILITIES
Deposits:
In domestic offices .............................................................. 9,266,492
Noninterest-bearing ....................... 6,824,432
Interest-bearing .......................... 2,442,060
In foreign offices and Edge subsidiary ........................................... 14,385,048
Noninterest-bearing ....................... 75,909
Interest-bearing .......................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .............................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities ................................. 171,783
Trading liabilities............................................................................... 1,078,189
Other borrowed money ............................................................................. 406,583
Subordinated notes and debentures ................................................................ 0
Bank's liability on acceptances executed and outstanding ......................................... 66,149
Other liabilities ................................................................................ 878,947
Total liabilities ................................................................................ 36,203,185
---------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................... 0
Common stock ..................................................................................... 29,931
Surplus .......................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses) ..................... 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities............................ 18,136
Cumulative foreign currency translation adjustments ............................................. (6,256)
Total equity capital ............................................................................. 2,348,835
---------------
Total liabilities and equity capital ............................................................. 38,552,020
---------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
<PAGE> 1
EXHIBIT 25.7
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
________
STATEMENT OF ELIGIBILITY UNDER THE
TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
Check if an Application to Determine Eligibility
of a Trustee Pursuant to Section 305(b)(2)
STATE STREET BANK AND TRUST COMPANY
(Exact name of trustee as specified in its charter)
Massachusetts 04-1867445
(Jurisdiction of incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification No.)
225 Franklin Street, Boston, Massachusetts 02110
(Address of principal executive offices) (Zip Code)
Maureen Scannell Bateman, Esq. Executive Vice President and General Counsel
225 Franklin Street, Boston, Massachusetts 02110
(617) 654-3253
(Name, address and telephone number of agent for service)
THE ALLSTATE CORPORATION
(Exact name of obligor as specified in its charter)
DELAWARE 36-3871531
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2775 SANDERS ROAD
NORTHBROOK, IL 60062
(847) 402-5000
(Address of principal executive offices) (Zip Code)
PREFERRED SECURITIES GUARANTEES
(Title of indenture securities)
<PAGE> 2
GENERAL
ITEM 1. GENERAL INFORMATION.
FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISORY AUTHORITY TO
WHICH IT IS SUBJECT.
Department of Banking and Insurance of The Commonwealth of
Massachusetts, 100 Cambridge Street, Boston, Massachusetts.
Board of Governors of the Federal Reserve System, Washington,
D.C., Federal Deposit Insurance Corporation, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
The obligor is not an affiliate of the trustee or of its
parent, State Street Corporation.
(See note on page 2.)
ITEM 3. THROUGH ITEM 15. NOT APPLICABLE.
ITEM 16. LIST OF EXHIBITS.
LIST BELOW ALL EXHIBITS FILED AS PART OF THIS STATEMENT OF ELIGIBILITY.
1. A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN
EFFECT.
A copy of the Articles of Association of the trustee, as now
in effect, is on file with the Securities and Exchange
Commission as Exhibit 1 to Amendment No. 1 to the Statement of
Eligibility and Qualification of Trustee (Form T-1) filed with
the Registration Statement of Morse Shoe, Inc. (File No.
22-17940) and is incorporated herein by reference thereto.
2. A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE TO COMMENCE
BUSINESS, IF NOT CONTAINED IN THE ARTICLES OF ASSOCIATION.
A copy of a Statement from the Commissioner of Banks of
Massachusetts that no certificate of authority for the trustee
to commence business was necessary or issued is on file with
the Securities and Exchange Commission as Exhibit 2 to
Amendment No. 1 to the Statement of Eligibility and
Qualification of Trustee (Form T-1) filed with the
Registration Statement of Morse Shoe, Inc. (File No. 22-17940)
and is incorporated herein by reference thereto.
3. A COPY OF THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE
TRUST POWERS, IF SUCH AUTHORIZATION IS NOT CONTAINED IN THE DOCUMENTS
SPECIFIED IN PARAGRAPH (1) OR (2), ABOVE.
A copy of the authorization of the trustee to exercise
corporate trust powers is on file with the Securities and
Exchange Commission as Exhibit 3 to Amendment No. 1 to the
Statement of Eligibility and Qualification of Trustee (Form
T-1) filed with the Registration Statement of Morse Shoe, Inc.
(File No. 22-17940) and is incorporated herein by reference
thereto.
4. A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE, OR INSTRUMENTS
CORRESPONDING THERETO.
A copy of the by-laws of the trustee, as now in effect, is on
file with the Securities and Exchange Commission as Exhibit 4
to the Statement of Eligibility and Qualification of Trustee
(Form T-1) filed with the Registration Statement of Eastern
Edison Company (File No. 33-37823) and is incorporated herein
by reference thereto.
1
<PAGE> 3
5. A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4. IF THE OBLIGOR IS
IN DEFAULT.
Not applicable.
6. THE CONSENTS OF UNITED STATES INSTITUTIONAL TRUSTEES REQUIRED BY
SECTION 321(b) OF THE ACT.
The consent of the trustee required by Section 321(b) of the
Act is annexed hereto as Exhibit 6 and made a part hereof.
7. A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE PUBLISHED
PURSUANT TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING
AUTHORITY.
A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority is annexed hereto as
Exhibit 7 and made a part hereof.
NOTES
In answering any item of this Statement of Eligibility which relates to
matters peculiarly within the knowledge of the obligor or any underwriter for
the obligor, the trustee has relied upon information furnished to it by the
obligor and the underwriters, and the trustee disclaims responsibility for the
accuracy or completeness of such information.
The answer furnished to Item 2. of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, State Street Bank and Trust Company, a corporation
organized and existing under the laws of The Commonwealth of Massachusetts, has
duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Boston and The
Commonwealth of Massachusetts, on the 18TH DAY OF AUGUST, 1998.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
---------------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
2
<PAGE> 4
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939, as amended, in connection with the proposed issuance by THE
ALLSTATE CORPORATION of its PREFERRED SECURITIES GUARANTEES, we hereby consent
that reports of examination by Federal, State, Territorial or District
authorities may be furnished by such authorities to the Securities and Exchange
Commission upon request therefor.
STATE STREET BANK AND TRUST COMPANY
By: /s/ ROLAND S. GUSTAFSEN
--------------------------------------
NAME: ROLAND S. GUSTAFSEN
TITLE: ASSISTANT VICE PRESIDENT
DATED: AUGUST 18, 1998
3
<PAGE> 5
EXHIBIT 7
Consolidated Report of Condition of State Street Bank and Trust Company,
Massachusetts and foreign and domestic subsidiaries, a state banking
institution organized and operating under the banking laws of this commonwealth
and a member of the Federal Reserve System, at the close of business March 31,
1998, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act and in
accordance with a call made by the Commissioner of Banks under General Laws,
Chapter 172, Section 22(a).
<TABLE>
<CAPTION>
Thousands of
ASSETS Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin ............................... 1,144,309
Interest-bearing balances ........................................................ 9,914,704
Securities ....................................................................................... 10,062,052
Federal funds sold and securities purchased
under agreements to resell in domestic offices
of the bank and its Edge subsidiary .............................................. 8,073,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ............ 6,433,627
Allowance for loan and lease losses ................. 88,820
Allocated transfer risk reserve...................... 0
Loans and leases, net of unearned income and allowances .......................... 6,344,807
Assets held in trading accounts .................................................................. 1, 117,547
Premises and fixed assets ........................................................................ 453,576
Other real estate owned .......................................................................... 100
Investments in unconsolidated subsidiaries ....................................................... 44,985
Customers' liability to this bank on acceptances outstanding ..................................... 66,149
Intangible assets ................................................................................ 263,249
Other assets...................................................................................... 1,066,572
---------------
Total assets ..................................................................................... 38,552,020
===============
LIABILITIES
Deposits:
In domestic offices .............................................................. 9,266,492
Noninterest-bearing ....................... 6,824,432
Interest-bearing .......................... 2,442,060
In foreign offices and Edge subsidiary ........................................... 14,385,048
Noninterest-bearing ....................... 75,909
Interest-bearing .......................... 14,309,139
Federal funds purchased and securities sold under
agreements to repurchase in domestic offices of
the bank and of its Edge subsidiary .............................................. 9,949,994
Demand notes issued to the U.S. Treasury and Trading Liabilities ................................. 171,783
Trading liabilities............................................................................... 1,078,189
Other borrowed money ............................................................................. 406,583
Subordinated notes and debentures ................................................................ 0
Bank's liability on acceptances executed and outstanding ......................................... 66,149
Other liabilities ................................................................................ 878,947
Total liabilities ................................................................................ 36,203,185
---------------
EQUITY CAPITAL
Perpetual preferred stock and related surplus..................................................... 0
Common stock ..................................................................................... 29,931
Surplus .......................................................................................... 450,003
Undivided profits and capital reserves/Net unrealized holding gains (losses) ..................... 1,857,021
Net unrealized holding gains (losses) on available-for-sale securities............................ 18,136
Cumulative foreign currency translation adjustments ............................................. (6,256)
Total equity capital ............................................................................. 2,348,835
---------------
Total liabilities and equity capital ............................................................. 38,552,020
---------------
</TABLE>
4
<PAGE> 6
I, Rex S. Schuette, Senior Vice President and Comptroller of the above named
bank do hereby declare that this Report of Condition has been prepared in
conformance with the instructions issued by the Board of Governors of the
Federal Reserve System and is true to the best of my knowledge and belief.
Rex S. Schuette
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
David A. Spina
Marshall N. Carter
Truman S. Casner
5
