As filed with the Securities and Exchange Commission
on October 29, 1997
Registration Nos. 333-__________
333-_______-01
=====================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
FORM S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------------
ALBANK FINANCIAL CORPORATION ALBANK CAPITAL TRUST I
(Exact name of registrant (Exact name of registrant as
as specified in its charter) specified in its Trust Agreement)
Delaware Delaware
(State or other jurisdiction (State or other jurisdiction
of incorporation or organization) of incorporation or organization)
6712 6799
(Primary Standard Industrial (Primary Standard Industrial
Classification Code Number) Classification Code Number)
14-1746910 14-6186122
(I.R.S. Employer (I.R.S. Employer
Identification No.) Identification No.)
c/o ALBANK Financial Corporation
10 North Pearl Street 10 North Pearl Street
Albany, New York 12207 Albany, New York 12207
(518) 445-2100 (518) 445-2100
(Address, including zip code, (Address, including zip code,
and telephone number, including and telephone number, including
area code, of registrant's area code, of registrant's
principal executive offices) principal executive offices)
-------------------------
Freling H. Smith
Senior Vice President, Secretary and General Counsel
ALBANK Financial Corporation
10 North Pearl Street
Albany, New York 12207
(518) 445-2100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
With a copy to:
Kenneth L. Bachman, Esq.
Cleary, Gottlieb, Steen & Hamilton
2000 Pennsylvania Avenue, N.W.
Washington, D.C. 20006-1801
(202) 974-1520
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: As promptly as practicable after the effective date of
this Registration Statement.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company and
there is compliance with General Instruction G, please check the
following box. [ ]
<PAGE>
CALCULATION OF REGISTRATION FEE
=====================================================================
Proposed
Title of Maximum Proposed
each Class of Offering Maximum
Securities Amount Price Aggregate Amount of
to be to be Per Offering Registration
Registered Registered Unit (1) Price (1) Fee
- ---------------------------------------------------------------------
9.27% Capital
Securiies, $50,000,000 100% $50,000,000 $15,151.52
Series B
of ALBANK
Capital
Trust I
- ---------------------------------------------------------------------
Junior N/A N/A N/A N/A
Subordinated
Deferrable
Interest
Debentures,
Series B due
2027 of
ALBANK
Financial
Corporation (2)
- ---------------------------------------------------------------------
ALBANK N/A N/A N/A N/A
Financial
Corporation
Guarantee
with respect
to the 9.27%
Capital
Securities,
Series
B (3)
- ---------------------------------------------------------------------
Total (4) $50,000,000 100% $50,000,000 (5) $15,151.52
=====================================================================
(1) Estimated solely for the purpose of computing the registration
fee.
(2) The Junior Subordinated Deferrable Interest Debentures due
2027, Series A were purchased by ALBANK Capital Trust I
with the proceeds of the sale of the 9.27% Capital
Securities, Series A (the "Old Capital Securities"). No
separate consideration will be received for the Junior
Subordinated Deferrable Interest Debentures due 2027,
Series B distributed upon any liquidation of ALBANK Capital
Trust I.
(3) No separate consideration will be received for the ALBANK
Financial Corporation Guarantee.
(4) This Registration Statement is deemed to cover the Junior
Subordinated Deferrable Interest Debentures due 2027,
Series B of ALBANK Financial Corporation, the rights of
holders of Junior Subordinated Deferrable Interest
Debentures due 2027, Series B of ALBANK Financial
Corporation under the Indenture, and the rights of holders
of 9.27% Capital Securities, Series B under the Guarantee
of ALBANK Financial Corporation, which taken together fully
and unconditionally guarantee the obligations of ALBANK
Capital Trust I under the 9.27% Capital Securities, Series
B.
(5) Such amount represents the aggregate liquidation amount of
the 9.27% Capital Securities, Series B to be issued and
exchanged hereunder for the Old Capital Securities and the
principal amount of Junior Subordinated Debentures due
2027, Series B that may be distributed upon liquidation of
ALBANK Capital Trust I.
--------------------
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 COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
<PAGE>
CROSS-REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
showing location in the Prospectus
of Information Required by Items in Form S-4
Item Location in Prospectus
---- ----------------------
1. Forepart of the Registration
Statement and Outside Front
Cover Page of Prospectus Facing Page of the
Registration Statement;
Cross Reference Sheet;
Outside From Cover Page of
Prospectus
2. Inside Front and Outside
Back Cover Pages of
Prospectus Available Information;
Outside Back Cover of
Prospectus
3. Risk Factors, Ratio of
Earnings to Fixed Charges
and Other Information Summary; Risk Factors; Ratio
of Earnings to Fixed
Charges; ALBANK Capital
Trust I; Selected
Consolidated Financial
Information
4. Terms of the Transaction Summary; Risk Factors; The
Exchange Offer; Description
of Capital Securities;
Description of Junior
Subordinated Debentures;
Description of Guarantee;
Relationship Among the
Capital Securities, the
Junior Subordinated
Debentures and the
Guarantee; Plan of
Distribution; Certain
Federal Income Tax
Consequences
5. Pro Forma Financial
Information Not Applicable
6. Material Contracts With
the Company Being Acquired Not Applicable
7. Additional Information
required for Reoffering
by Persons and Parties
Deemed to be Underwriters Not Applicable
8. Interests of Named Experts
and Counsel Not Applicable
9. Disclosure of Commission
Position on Indemnification
for Securities Act
Liabilities Not Applicable
<PAGE>
10. Information with Respect
to S-3 Registrants Not Applicable
11. Incorporation of Certain
Information by Reference Available Information;
Incorporation of Certain
Documents by Reference
12. Information with Respect
to S-2 or S-3 Registrants Not Applicable
13. Incorporation of Certain
Information by Reference Not Applicable
14. Information with Respect
to Registrants Other than
S-3 or S-2 Registrants Not Applicable
15. Information with Respect
to S-3 Companies Not Applicable
16. Information with Respect
to S-2 or S-3 Companies Not Applicable
17. Information with Respect
to Companies Other Than
S-3 or S-2 Companies Not Applicable
18. Information if Proxies,
Consents or Authorizations
Are To Be Solicited Not Applicable
19. Information if Proxies,
Consents or Authorizations
Are Not To Be Solicited or
in an Exchange Offer Description of Junior
Subordinated Debentures;
Description of Guarantee;
Relationship Among the
Capital Securities, the
Junior Subordinated
Debentures and the
Guarantee; Summary; The
Exchange Offer; Description
of Capital Securities
<PAGE>
*********************************************************************
* 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 ___________ __, 1997
PROSPECTUS
$50,000,000
ALBANK CAPITAL TRUST I
Offer to exchange its 9.27% Capital Securities, Series B which
have been registered under the Securities Act of 1933 for any and
all of its outstanding 9.27% Capital Securities, Series A
(Liquidation Amount $1,000 per Capital Security)
fully and unconditionally guaranteed, as described herein, by
ALBANK FINANCIAL CORPORATION
The Exchange Offer and Withdrawal Rights will
expire at 5:00 p.m., New York City time,
on _____________ __, 1997, unless extended
--------------------
ALBANK Capital Trust I, a statutory business trust created
under the laws of the State of Delaware (the "Trust"), hereby
offers, upon the terms and subject to the conditions set forth in
this Prospectus (as the same may be amended or supplemented from
time to time, the "Prospectus") and in the accompanying Letter of
Transmittal (which together constitute the "Exchange Offer"), to
exchange up to $50,000,000 aggregate liquidation amount of its
9.27% Capital Securities, Series B, liquidation amount $1,000 per
Capital Security (the "New Capital Securities"), which have been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), pursuant to a Registration Statement (as
defined herein) of which this Prospectus constitutes a part, for
a like liquidation amount of its outstanding 9.27% Capital
Securities, Series A, liquidation amount $1,000 per Capital
Security (the "Old Capital Securities"), of which $50,000,000
aggregate liquidation amount is outstanding. Pursuant to the
Exchange Offer, ALBANK Financial Corporation, a Delaware
corporation ("ALBANK" or the "Corporation"), is also exchanging
(i) its guarantee with respect to the payment of distributions
and other payments on liquidation of the Trust or redemption of
the Old Capital Securities (the "Old Guarantee") for a like
guarantee of the New Capital Securities (the "New Guarantee") and
(ii) all of its outstanding 9.27% Junior Subordinated Deferrable
Interest Debentures due 2027, Series A (the "Old Subordinated
Debentures"), of which $51,547,000 aggregate principal amount is
outstanding, for a like aggregate principal amount of its 9.27%
Junior Subordinated Deferrable Interest Debentures due 2027,
Series B (the "New Junior Subordinated Debentures"), which New
Guarantee and New Junior Subordinated Debentures also have been
registered under the Securities Act. The Old Capital Securities,
the Old Guarantee and the Old Junior Subordinated Debentures are
collectively referred to herein as the "Old Securities" and the
New Capital Securities, the New Guarantee and the New Junior
Subordinated Debentures are collectively referred to herein as
the "New Securities."
--------------------
THIS PROSPECTUS AND THE LETTER OF TRANSMITTAL ARE FIRST
BEING MAILED TO HOLDERS OF OLD CAPITAL SECURITIES ON _________ __,
1997.
(continued on following page)
<PAGE>
SEE "RISK FACTORS" BEGINNING ON PAGE 16 OF THIS PROSPECTUS
FOR CERTAIN INFORMATION RELEVANT TO AN INVESTMENT IN THE NEW
SECURITIES.
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.
--------------------
The date of this Prospectus is _____________ __, 1997.
<PAGE>
(continued from the previous page)
The terms of the New Securities are identical in all
material respects to the respective terms of the Old Securities,
except that (i) the New Securities have been registered under the
Securities Act and therefore will not be subject to certain
restrictions on transfer applicable to the Old Securities, (ii)
the New Capital Securities will not provide for any increase in
the distribution rate thereon, and (iii) the New Junior
Subordinated Debentures will not provide for any increase in the
interest rate thereon. See "Description of Capital Securities."
The New Capital Securities are being offered for exchange in
order to satisfy certain obligations of the Corporation and the
Trust under the Registration Rights Agreement, dated June 6, 1997
(the "Registration Rights Agreement"), among the Corporation, the
Trust and Merrill Lynch, Pierce Fenner & Smith Incorporated, as
the initial purchaser (the "Initial Purchaser") of the Old
Capital Securities. In the event that the Exchange Offer is
consummated, any Old Capital Securities which remain outstanding
after consummation of the Exchange Offer will vote together with
the New Capital Securities issued in the Exchange Offer as a
single class for purposes of determining whether holders of the
requisite percentage in outstanding liquidation amount thereof
have taken certain actions or exercised certain rights under the
Trust Agreement (as defined herein).
As the context may require, unless otherwise expressly
stated, the Old Capital Securities and the New Capital Securities
are collectively referred to herein as the "Capital Securities."
The Old Capital Securities represent, and the New Capital
Securities when issued will represent, undivided beneficial
interests in the assets of the Trust. The Corporation owns all of
the common securities of the Trust (the "Common Securities")
representing undivided beneficial interests in the assets of the
Trust. The Trust exists for the sole purpose of issuing the
Common Securities and the Capital Securities (together, the
"Trust Securities") and investing the proceeds thereof in the
Junior Subordinated Debentures and certain other limited
activities described herein.
The Old Junior Subordinated Debentures and the New Junior
Subordinated Debentures are collectively referred to herein as
the "Junior Subordinated Debentures" and the Old Guarantee and
the New Guarantee are collectively referred to herein as the
"Guarantee."
As used herein, (i) the "Indenture" means the Indenture,
dated as of June 6, 1997, as amended and supplemented from time
to time, between the Corporation and The Chase Manhattan Bank, as
trustee (the "Debenture Trustee"), relating to the Junior
Subordinated Debentures, (ii) the "Trust Agreement" means the
Amended and Restated Declaration of Trust relating to the Trust
among the Corporation, as Sponsor, The Chase
Manhattan Bank, as Property Trustee (the "Property Trustee"),
Chase Manhattan Bank Delaware, as Delaware Trustee (the "Delaware
Trustee"), the Administrators (as defined herein) and the holders
from time to time of the Trust Securities and (iii) the "Common
Guarantee" means the Guarantee Agreement of the Corporation
relating to the Common Securities.
Except as provided below, the Capital Securities will be
represented by global Capital Securities in fully registered
form, deposited with a custodian for and registered in the name
of a nominee of DTC (as defined herein). Beneficial interests in
such Capital Securities will be shown on, and transfers thereof
will be effected through, records maintained by DTC and its
participants. Beneficial interests in such Capital Securities
will trade in DTC's Same-Day Funds Settlement System and
secondary market trading activity in such interests will
therefore settle in immediately available funds. The Capital
Securities will be issued, and may be transferred, only in blocks
having a Liquidation Amount of not less than $100,000 (100
Capital Securities). See "Description of Capital
Securities--Restrictions on Transfer."
Holders of the Trust Securities are or will be, as the case
may be, entitled to receive cumulative cash distributions arising
from the payment of interest on the Junior Subordinated
Debentures, accumulating from the date of original issuance of
the Common Securities and the Old Capital Securities and payable
semi-annually in arrears on June 6 and December 6 of each year,
commencing December 6, 1997, at the annual rate of 9.27% of the
Liquidation Amount of $1,000 per Trust Security
("Distributions"). So long as no Debenture Event of Default (as
defined herein) has occurred and is continuing, the Corporation
will have the right to defer payments of interest on the Junior
Subordinated Debentures at any time and from time to time for a
period not exceeding 10 consecutive semi-annual periods with
respect to each deferral period (each, an "Extension Period"),
provided that
2
<PAGE>
no Extension Period may extend beyond the Stated Maturity Date. Upon
the expiration of any Extension Period and the payment of all
amounts then due, the Corporation may elect to begin a new
Extension Period, subject to the requirements set forth herein.
If and for so long as interest payments on the Junior
Subordinated Debentures are so deferred, Distributions on the
Trust Securities will also be deferred and the Corporation will
not be permitted, subject to certain exceptions described herein,
to declare or pay any cash distributions with respect to the
Corporation's capital stock (which includes common and preferred
stock) or to make any payment with respect to debt securities of
the Corporation that rank pari passu with or junior to the Junior
Subordinated Debentures. During an Extension Period, interest on
the Junior Subordinated Debentures will continue to accrue (and
the amount of Distributions to which holders of the Trust
Securities are entitled will continue to accumulate) at the rate
of 9.27% per annum, compounded semi-annually, and holders of
Trust Securities will be required to accrue such deferred
interest income for United States federal income tax purposes
prior to the receipt of cash payments attributable to such
interest income. See "Description of Junior Subordinated
Debentures--Option to Extend Interest Payment Date" and "Certain
Federal Income Tax Consequences--Interest Income and Original
Issue Discount."
The Corporation, through the Guarantee, the Common
Guarantee, the Trust Agreement, the Junior Subordinated
Debentures and the Indenture, taken together, fully, irrevocably
and unconditionally guarantees on a subordinated basis all of the
Trust's obligations under the Trust Securities. See "Relationship
Among the Capital Securities, the Junior Subordinated Debentures
and the Guarantee--Full and Unconditional Guarantee." The
Guarantee and the Common Guarantee guarantee payments of
Distributions and payments on liquidation or redemption of the
Trust Securities, but in each case only to the extent that the
Trust holds funds on hand legally available therefor and has
failed to make such payments, as described herein. See
"Description of Guarantee." If the Corporation defaults on its
obligation to make a required payment on the Junior Subordinated
Debentures, the Trust will not have sufficient funds to make the
related payments, including Distributions, on the Trust
Securities. The Guarantee and the Common Guarantee will not cover
any such payment when the Trust does not have sufficient funds on
hand legally available therefor. In such event, a holder of
Capital Securities may institute a legal proceeding directly
against the Corporation to enforce its rights in respect of such
payment as described herein and as provided in the Trust
Agreement. See "Risk Factors--Rights Under the Guarantee" and
"Description of Junior Subordinated Debentures--Enforcement of
Certain Rights by Holders of Capital Securities." The obligations
of the Corporation under the Guarantee, the Common Guarantee and
the Junior Subordinated Debentures rank subordinate and junior in
right of payment to all Senior Indebtedness (as defined in
"Description of Junior Subordinated Debentures--Subordination").
At September 30, 1997, the Corporation had no Senior
Indebtedness. See "Risk Factors--Ranking of Subordinated
Obligations under the Guarantee and the Junior Subordinated
Debentures."
The Trust Securities will be subject to mandatory
redemption in a Like Amount (as defined herein), (i) in whole but
not in part, on the Stated Maturity Date upon repayment of the
Junior Subordinated Debentures at a redemption price equal to the
principal amount of, plus accrued and unpaid interest on, the
Junior Subordinated Debentures (the "Maturity Redemption Price"),
(ii) in whole but not in part, at any time prior to June 6, 2007,
contemporaneously with the optional prepayment by the Corporation
of the Junior Subordinated Debentures, upon the occurrence and
continuation of a Special Event (as defined herein) at a
redemption price equal to the Special Event Prepayment Price (as
defined herein) (the "Special Event Redemption Price"), and (iii)
in whole or in part, on or after June 6, 2007, contemporaneously
with the optional prepayment by the Corporation of the Junior
Subordinated Debentures, at a redemption price equal to the
Optional Prepayment Price (as defined herein) (the "Optional
Redemption Price"). Any of the Maturity Redemption Price, the
Special Event Redemption Price and the Optional Redemption Price
may be referred to herein as the "Redemption Price." See
"Description of Capital Securities--Redemption."
Subject to the Corporation having received any required
regulatory approval, the Junior Subordinated Debentures will be
prepayable prior to the Stated Maturity Date at the option of the
Corporation (i) on or after June 6, 2007, in whole or in part, at
a prepayment price (the "Optional Prepayment Price") equal to
104.635% of the principal amount thereof on June 6, 2007,
declining ratably on each June 6 thereafter to 100% on or after
June 6, 2017, and (ii) prior to June 6, 2007, in whole but not in
part, upon the occurrence and continuation of a Special Event, at
a prepayment price (the "Special Event Prepayment Price") equal
to the greater of (a) 100% of
3
<PAGE>
the principal amount thereof and (b) the sum, as determined by a
Quotation Agent (as defined herein), of the present value of 100%
of the principal amount thereof plus the scheduled payments of
interest thereon from the prepayment date to and including June
6, 2007, discounted to the prepayment date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate (as defined herein), plus, in the case
of a redemption under clause (i) or clause (ii), accrued and
unpaid interest thereon to the date of prepayment. Either of the
Optional Prepayment Price or the Special Event Prepayment Price
may be referred to herein as the "Prepayment Price." See
"Description of Junior Subordinated Debentures--Optional
Prepayment" and "--Special Event Prepayment."
The Corporation will have the right at any time to dissolve
the Trust and, after satisfaction of liabilities to creditors of
the Trust as provided by applicable law, cause a Like Amount of
the Junior Subordinated Debentures to be distributed to the
holders of the Trust Securities in liquidation of the Trust,
subject to the Corporation's having received (i) an opinion of
counsel to the effect that such distribution will not be a
taxable event to holders of Capital Securities and (ii) any
required regulatory approval. Unless the Junior Subordinated
Debentures are distributed to the holders of the Trust
Securities, in the event of a liquidation of the Trust as
described herein, after satisfaction of liabilities to creditors
of the Trust as required by applicable law, the holders of the
Trust Securities generally will be entitled to receive a
Liquidation Amount of $1,000 per Trust Security plus accumulated
and unpaid Distributions thereon to the date of payment. See
"Description of Capital Securities--Liquidation of the Trust and
Distribution of Junior Subordinated Debentures."
Based on interpretations by the staff of the Securities and
Exchange Commission (the "Commission"), as set forth in no-action
letters issued to third parties, the Corporation and the Trust
believe that the New Securities issued pursuant to the Exchange
Offer may be offered for resale, resold or otherwise transferred
by holders thereof (other than any holder that is an "affiliate"
of the Corporation or the Trust as defined in Rule 405 under the
Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act; provided
that such New Securities are acquired in the ordinary course of
such holders' business and such holders are not engaged in, and
do not intend to engage in, a distribution of such New Securities
and have no arrangement or understanding with any person to
participate in the distribution of such New Securities. However,
the staff of the Commission has not considered the Exchange Offer
in the context of a no-action letter, and there can be no
assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer as in such other
circumstances. By tendering the Old Capital Securities in
exchange for New Capital Securities, each holder, other than a
broker-dealer, will represent to the Corporation and the Trust
that: (i) it is not an affiliate of the Corporation or the Trust
(as defined in Rule 405 under the Securities Act); (ii) any New
Capital Securities to be received by it are being acquired in the
course of its ordinary business; and (iii) it is not engaged in,
and does not intend to engage in, a distribution of the New
Capital Securities and has no arrangement or understanding with
any person to participate in a distribution (within the meaning
of the Securities Act) of the New Capital Securities. In
addition, the Corporation and the Trust may require each holder,
as a condition to such holder's eligibility to participate in the
Exchange Offer, to furnish to the Corporation and the Trust (or
an agent thereof) in writing information as to the number of
"beneficial owners" (within the meaning of Rule 13d-3 under the
Securities Exchange Act of 1934, as amended) on behalf of whom
such holder holds the Old Capital Securities to be exchanged in
the Exchange Offer.
Each broker-dealer that receives New Capital Securities for
its own account pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such New Capital Securities. The Letter of Transmittal states
that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This
Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales
of New Capital Securities received in exchange for Old Capital
Securities where such Old Capital Securities were acquired by
such broker-dealer as a result of market-making activities or
other trading activities. The Corporation and the Trust have
agreed that, starting on the date on which the Exchange Offer is
consummated and ending on the close of business one year after
such date, they will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See
"Plan of Distribution." However, an Exchanging Dealer (as defined
herein) that intends to use this Prospectus in connection with
the resale of New Capital Securities pursuant to the Exchange
Offer must notify the Corporation or the Trust, or cause the
4
<PAGE>
Corporation or the Trust to be notified, on or prior to the
Expiration Date, that it is an Exchanging Dealer. Such notice may
be given in the space provided for that purpose in the Letter of
Transmittal or may be delivered to the Exchange Agent at the
address set forth herein under "The Exchange Offer--Exchange
Agent." Any Exchanging Dealer who is an "affiliate" of the
Corporation or the Trust may not rely on the no-action letters
mentioned in the preceding paragraph and must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. See
"The Exchange Offer--Resales of New Capital Securities."
In that regard, each Exchanging Dealer (as defined herein)
who surrenders Old Capital Securities pursuant to the Exchange
Offer will be deemed to have agreed, by execution of the Letter
of Transmittal or by delivery of an Agent's Message (as defined
herein), that, upon receipt of notice from the Corporation or the
Trust of the occurrence of any event or the discovery of any fact
which makes any statement contained or incorporated by reference
in this Prospectus untrue in any material respect or which causes
this Prospectus to omit to state a material fact necessary in
order to make the statements contained or incorporated by
reference herein, in the light of the circumstances under which
they were made, not misleading, or of the occurrence of certain
other events specified in the Registration Rights Agreement, such
Exchanging Dealer will suspend the sale of New Securities
pursuant to this Prospectus until the Corporation or the Trust
has amended or supplemented this Prospectus to correct such
misstatement or omission and has furnished copies of the amended
or supplemented Prospectus to such Exchanging Dealer, or the
Corporation or the Trust has given notice that the sale of the
New Securities may be resumed, as the case may be.
Prior to the Exchange Offer, there has been only a limited
secondary market and no public market for the Old Capital
Securities. The New Capital Securities will be a new issue of
securities for which there currently is no market. Although the
Initial Purchaser has informed the Corporation and the Trust that
it currently intends to make a market in the New Capital
Securities, it is not obligated to do so, and any such
market-making may be discontinued at any time without notice. The
New Capital Securities will not be listed on a securities
exchange or for quotation through NASDAQ (as defined herein) and
there can be no assurance as to the development or liquidity of
any market for the New Capital Securities.
Any Old Capital Securities not tendered and accepted in the
Exchange Offer will remain outstanding and will be entitled to
all the same rights and will be subject to the same limitations
applicable thereto under the Trust Agreement (except for those
rights which terminate upon consummation of the Exchange Offer).
Following consummation of the Exchange Offer, the holders of Old
Capital Securities will continue to be subject to all of the
existing restrictions upon transfer thereof and neither the
Corporation nor the Trust will have any further obligation to
such holders (other than under certain limited circumstances) to
provide for registration under the Securities Act of the Old
Capital Securities held by them. To the extent that Old Capital
Securities are tendered and accepted in the Exchange Offer, a
holder's ability to sell untendered Old Capital Securities could
be adversely affected. See "Risk Factors--Consequences of a
Failure to Exchange Old Capital Securities."
THIS PROSPECTUS AND THE RELATED LETTER OF TRANSMITTAL
CONTAIN IMPORTANT INFORMATION. HOLDERS OF OLD CAPITAL SECURITIES
ARE URGED TO READ THIS PROSPECTUS AND THE RELATED LETTER OF
TRANSMITTAL CAREFULLY BEFORE DECIDING WHETHER TO TENDER THEIR OLD
CAPITAL SECURITIES PURSUANT TO THE EXCHANGE OFFER.
Old Capital Securities may be tendered for exchange on or
prior to 5:00 p.m., New York City time, on _____________, 1997
(such time on such date being hereinafter called the "Expiration
Date"), unless the Exchange Offer is extended by the Corporation
and the Trust (in which case the term "Expiration Date" shall
mean the latest date and time to which the Exchange Offer is
extended). Tenders of Old Capital Securities may be withdrawn at
any time on or prior to the Expiration Date. The Exchange Offer
is not conditioned upon any minimum liquidation amount of Old
Capital Securities being tendered for exchange. However, the
Exchange Offer is subject to certain events and conditions which
may be waived by the Corporation or the Trust and to the terms
and provisions of the Registration Rights Agreement. Old Capital
Securities may be tendered in whole or in part. The Corporation
has agreed to pay all expenses of the Exchange Offer, except as
otherwise specified herein. See "The Exchange Offer--Fees and
Expenses." The New Capital Securities will pay cumulative
distributions from the most recent Distribution Date (as defined
herein) on the Old Capital Securities surrendered
5
<PAGE>
in exchange for such New Capital Securities or, if no
distributions have been paid on such Old Capital Securities, from
June 6, 1997. Holders of the Old Capital Securities whose Old
Capital Securities are accepted for exchange will not receive
accumulated distributions on such Old Capital Securities for any
period from and after the last Distribution Date on such Old
Capital Securities prior to the original issue date of the New
Capital Securities or, if no such distributions have been paid,
will not receive any accumulated distributions on such Old
Capital Securities, and will be deemed to have waived the right
to receive any distributions on such Old Capital Securities
accumulated from and after such Distribution Date or, if no such
distributions have been paid or duly provided for, from and after
June 6, 1997. This Prospectus, together with the Letter of
Transmittal, is being sent to all registered holders of Old
Capital Securities as of _________, 1997.
Neither the Corporation nor the Trust will receive any cash
proceeds from the issuance of the New Capital Securities offered
hereby. No dealer-manager is being used in connection with the
Exchange Offer. See "Use of Proceeds" and "Plan of Distribution."
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE
CORPORATION OR THE TRUST ACCEPT SURRENDERS FOR EXCHANGE FROM,
HOLDERS OF OLD CAPITAL SECURITIES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN
COMPLIANCE WITH THE SECURITIES OR BLUE SKY LAWS OF SUCH
JURISDICTION.
6
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AVAILABLE INFORMATION
The Corporation is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and in accordance therewith, files reports,
proxy statements and other information with the Commission. Such
reports, proxy statements and other information may be inspected
and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C.
20549 and at the Commission's regional offices at 7 World Trade
Center, 13th Floor, Suite 1300, New York, New York 10048 and
Suite 1400, Citicorp Center, 500 West Madison Street, Chicago,
Illinois 60661. Copies of such material may also be obtained by
mail from the Public Reference Section of the Commission at 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates.
Such information may also be accessed electronically by means of
the Commission's home page on the Internet (http://www.sec.gov.).
The Corporation's common stock is traded on the National
Association of Securities Dealers, Inc.'s Automated Quotation
("NASDAQ") National Market System. In addition, such reports,
proxy statements and other information concerning the Corporation
may be inspected at the offices of the National Association of
Securities Dealers, Inc., 1735 K Street, N.W., Washington, D.C.
20006.
The Corporation and the Trust have filed with the
Commission a Registration Statement on Form S-4 (together with
all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act with respect to the
securities offered hereby. This Prospectus does not contain all
the information set forth in the Registration Statement, certain
portions of which have been omitted as permitted by the rules and
regulations of the Commission. For further information with
respect to the Corporation, the Trust and the securities offered
hereby, reference is made to the Registration Statement and the
exhibits and financial statements, notes and schedules filed as a
part thereof or incorporated by reference therein, which may be
inspected or obtained at or from the Commission as described
above. Statements made in this Prospectus concerning the contents
of any documents referred to herein are not necessarily complete,
and in each instance are qualified in all respects by reference
to the copy of such document filed as an exhibit to the
Registration Statement.
No separate financial statements of the Trust have been
included herein. The Corporation and the Trust do not consider
that such financial statements would be material to holders of
the Capital Securities because the Trust is a newly formed
special purpose entity, has no operating history or independent
operations and is not engaged in and does not propose to engage
in any activity other than holding as trust assets the Junior
Subordinated Debentures, issuing the Trust Securities and
engaging in incidental activities. See "ALBANK Capital Trust I,"
"Description of Capital Securities," "Description of Junior
Subordinated Debentures" and "Description of Guarantee." In
addition, the Corporation does not expect that the Trust will
file reports, proxy statements and other information under the
Exchange Act with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Corporation's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 and the Corporation's Quarterly
Reports on Form 10-Q for the quarterly periods ended March 31,
1997 and June 30, 1997, each as filed by the Corporation with the
Commission, are incorporated into this Prospectus by reference.
All documents subsequently filed by the Corporation
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date hereof and prior to the termination of the
offering of the Capital Securities offered hereby shall be deemed
to be incorporated by reference into this Prospectus and to be a
part of this Prospectus from the date of filing of such document.
Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other
subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
7
<PAGE>
AS USED HEREIN, THE TERMS "PROSPECTUS" AND "HEREIN" MEAN
THIS PROSPECTUS, INCLUDING THE DOCUMENTS INCORPORATED OR DEEMED
TO BE INCORPORATED HEREIN BY REFERENCE, AS THE SAME MAY BE
AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME.
THIS PROSPECTUS INCORPORATES DOCUMENTS BY REFERENCE WHICH ARE NOT
PRESENTED HEREIN OR DELIVERED HEREWITH. STATEMENTS CONTAINED IN
THIS PROSPECTUS AS TO THE CONTENTS OF ANY CONTRACT OR OTHER
DOCUMENT REFERRED TO HEREIN DO NOT PURPORT TO BE COMPLETE, AND
WHERE REFERENCE IS MADE TO THE PARTICULAR PROVISIONS OF SUCH
CONTRACT OR OTHER DOCUMENT, SUCH PROVISIONS ARE QUALIFIED IN ALL
RESPECTS BY REFERENCE TO ALL OF THE PROVISIONS OF SUCH CONTRACT
OR OTHER DOCUMENT. THE CORPORATION WILL PROVIDE WITHOUT CHARGE TO
ANY PERSON TO WHOM THIS PROSPECTUS IS DELIVERED, ON THE WRITTEN
OR ORAL REQUEST OF SUCH PERSON, A COPY OF ANY OR ALL OF THE
FOREGOING DOCUMENTS INCORPORATED BY REFERENCE HEREIN (OTHER THAN
EXHIBITS NOT SPECIFICALLY INCORPORATED BY REFERENCE INTO THE
TEXTS OF SUCH DOCUMENTS). REQUESTS FOR SUCH DOCUMENTS SHOULD BE
DIRECTED TO: FRELING H. SMITH, SENIOR VICE PRESIDENT, SECRETARY
AND GENERAL COUNSEL, ALBANK FINANCIAL CORPORATION, 10 NORTH PEARL
STREET, ALBANY, NEW YORK 12207. TELEPHONE REQUESTS MAY BE
DIRECTED TO FRELING H. SMITH AT (518) 445-2100. IN ORDER TO
ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY REQUEST SHOULD BE
MADE BY __________ __, 1997, FIVE BUSINESS DAYS PRIOR TO THE
EXPIRATION DATE.
8
<PAGE>
SUMMARY
The following summary is qualified in its entirety by the
more detailed information appearing elsewhere in this Prospectus.
ALBANK Financial Corporation
ALBANK, through its subsidiary, ALBANK, FSB, a federally
chartered savings association (the "Bank"), serves approximately
350,000 customers in eastern and central upstate New York,
Vermont and western Massachusetts through 73 branch offices.
Headquartered in Albany, New York, ALBANK has grown significantly
in recent years primarily through a series of acquisitions which
have expanded and strengthened its franchise and accelerated its
shift from a traditional thrift institution to more of a
bank-like financial institution. Moreover, ALBANK's shift in
lines of business has contributed to the increase in its net
interest margin, which was 3.91% for the year ended December 31,
1996 and 3.99% for the nine months ended September 30, 1997. As
of September 30, 1997, ALBANK had consolidated total assets of
$3.7 billion, deposits of $3.0 billion and stockholders' equity
of $343.5 million. ALBANK's net income for the year ended
December 31, 1996 was $26.2 million or $1.84 per fully diluted
share. Net income for 1996 included a one-time Savings
Association Insurance Fund ("SAIF") special assessment of $6.4
million after tax ($10.4 million before tax); excluding this
charge, 1996 net income would have been $32.6 million or $2.28
per fully diluted share. Net income for the nine months ended
September 30, 1997 was $28.1 million, an increase of $10.9
million (64%) from the comparable period the year before. Primary
and fully diluted earnings per share were $2.03 and $2.02,
respectively, for the first nine months of 1997, up from $1.20
per share a year ago, representing increases of 69% and 68%,
respectively. Core net income for the nine months ended September
30, 1997 was $28.0 million, an increase of $4.4 million (19%)
from the comparable period the year before. Fully diluted core
earnings per share were $2.01 for the first nine months of 1997,
up from $1.64 per share a year ago, representing an increase of
23%.
In January 1997, ALBANK announced a definitive purchase
agreement to acquire 35 branch offices in eastern and central
upstate New York from Key Bank N.A. (the "Key Branch
Acquisition"), with total deposits of approximately $530 million
and related small business, consumer and mortgage loans of
approximately $53 million. The Key Branch Acquisition has
received all necessary regulatory approvals. In August 1997,
ALBANK announced a definitive purchase agreement to acquire three
New York state branch offices from First Union National Bank (the
"First Union Branch Acquisition"), with total deposits of
approximately $33.5 million. The First Union Branch Acquisition
is subject to regulatory approval.
ALBANK Capital Trust I
The Trust is a statutory business trust created under
Delaware law pursuant to the filing of a certificate of trust
with the Delaware Secretary of State on April 3, 1997. Subject to
the limitations contained in the Trust Agreement, the Trust's
business and affairs are conducted by the Property Trustee. In
addition, three individuals who are employees or officers of or
affiliated with the Corporation act as administrators with
respect to the Trust (the "Administrators"). The Trust exists for
the exclusive purposes of (i) issuing and selling the Trust
Securities, (ii) using the proceeds from the sale of the Trust
Securities to acquire the Junior Subordinated Debentures issued
by the Corporation and (iii) engaging in only those other
activities necessary, advisable or incidental thereto (such as
registering the transfer of the Trust Securities). The Junior
Subordinated Debentures are the sole assets of the Trust, and
payments under the Junior Subordinated Debentures will be the
sole revenue of the Trust. All of the Common Securities are owned
by the Corporation.
9
<PAGE>
The Exchange Offer
The Exchange Offer ........ Up to $50,000,000 aggregate liquidation
amount of New Capital Securities are being
offered in exchange for a like aggregate
liquidation amount of Old Capital
Securities. Old Capital Securities may
be tendered for exchange, in whole or in
part, in a liquidation amount of
$100,000 or any integral multiple of
$1,000 in excess thereof, provided that,
if any Old Capital Securities are
tendered for exchange in part, the
untendered liquidation amount thereof
must be $100,000 or any integral
multiple of $1,000 in excess thereof.
The Corporation and the Trust are making
the Exchange Offer in order to satisfy
their obligations under the Registration
Rights Agreement relating to the Old
Capital Securities. For a description of
the procedures for tendering Old Capital
Securities, see "The Exchange
Offer--Procedures for Tendering Old
Capital Securities."
Expiration Date ........... The Expiration Date of the Exchange
Offer will be 5:00 p.m., New York
City time, on _________, 1997,
unless the Exchange Offer is extended by
the Corporation and the Trust (in which
case the Expiration Date will be the
latest date and time to which the
Exchange Offer is extended). See "The
Exchange Offer--Expiration Date;
Extensions; Amendments."
Conditions to the
Exchange Offer ............ The Exchange Offer is subject to
certain conditions, which may be
waived by the Corporation and
the Trust in their sole
discretion. The Exchange Offer
is not conditioned upon any
minimum liquidation amount of
Old Capital Securities being
tendered. See "The Exchange
Offer--Conditions to the
Exchange Offer."
Terms of the Exchange
Offer ..................... The Corporation and the Trust reserve the
right in their sole discretion, subject to
applicable law, at any time and from time to
time, (i) to delay the acceptance of the Old
Capital Securities for exchange, (ii) to
terminate the Exchange Offer if certain
specified events have occurred, (iii) to
extend the Expiration Date of the
Exchange Offer and retain all Old
Capital Securities tendered pursuant to
the Exchange Offer, subject, however, to
the right of holders of Old Capital
Securities to withdraw their tendered
Old Capital Securities, or (iv) to waive
any condition or otherwise amend the
terms of the Exchange Offer in any
respect. See "The Exchange
Offer--Expiration Date; Extensions;
Amendments."
Withdrawal Rights ......... Tenders of Old Capital Securities
may be withdrawn at any time
on or prior to the Expiration Date by
delivering a written notice of such
withdrawal to The Chase Manhattan Bank,
as Exchange Agent (the "Exchange
Agent"), in conformity with certain
procedures set forth below under
10
<PAGE>
"The Exchange Offer--Withdrawal Rights."
Procedures for
Tendering Old
Capital Securities ........ Tendering holders of Old Capital Securities
must complete and sign a Letter of
Transmittal in accordance with the
instructions contained therein and
forward the same by mail, facsimile or
hand delivery, together with any other
required documents, to the Exchange
Agent, either with the Old Capital
Securities to be tendered or in
compliance with the specified procedures
for guaranteed delivery of Old Capital
Securities. Certain brokers, dealers,
commercial banks, trust companies and
other nominees may also effect tenders
by book-entry transfer, including an
Agent's Message in lieu of the Letter of
Transmittal. Holders of Old Capital
Securities registered in the name of a
broker, dealer, commercial bank, trust
company or other nominee are urged to
contact such person promptly if they
wish to tender Old Capital Securities
pursuant to the Exchange Offer. See "The
Exchange Offer--Procedures for Tendering
Old Capital Securities."
Letters of Transmittal and certificates
representing Old Capital Securities
should not be sent to the Corporation or
the Trust. Such documents should only be
sent to the Exchange Agent. Questions
regarding how to tender and requests for
information should be directed to the
Exchange Agent. See "The Exchange
Offer--Exchange Agent."
Resales of New
Capital Securities ........ Based on interpretations by the staff of
the Commission as set forth in no-action
letters issued to third parties, the
Corporation and the Trust believe that
the New Securities issued pursuant to
the Exchange Offer may be offered for
resale, resold or otherwise transferred
by holders thereof (other than any
holder that is an "affiliate" of the
Corporation or the Trust as defined in
Rule 405 under the Securities Act)
without compliance with the registration
and prospectus delivery provisions of
the Securities Act; provided that such
New Securities are acquired in the
ordinary course of such holders'
business and such holders are not
engaged in, and do not intend to engage
in, a distribution of such New
Securities and have no arrangement or
understanding with any person to
participate in the distribution of such
New Securities. However, the staff of
the Commission has not considered the
Exchange Offer in the context of a
no-action letter, and there can be no
assurance that the staff of the
Commission would make a similar
determination with respect to the
Exchange Offer as in such other
circumstances. By tendering the Old
Capital Securities in exchange for New
Capital Securities, each holder, other
than a broker-dealer, will represent to
the Corporation and the Trust that: (i)
it is not an affiliate of the
Corporation or the Trust (as defined in
Rule 405 under the Securities Act); (ii)
any New Capital Securities to be
received by it are being acquired in the
course of its ordinary business; and
(iii) it is not engaged in, and does not
intend to
11
<PAGE>
engage in, a distribution of the New
Capital Securities and has no
arrangement or understanding
with any person to participate
in a distribution (within the
meaning of the Securities Act)
of the New Capital Securities.
In addition, the Corporation and
the Trust may require each
holder, as a condition to such
holder's eligibility to
participate in the Exchange
Offer, to furnish to the
Corporation and the Trust (or an
agent thereof) in writing
information as to the number of
"beneficial owners" (within the
meaning of Rule 13d-3 under the
Securities Exchange Act of 1934,
as amended) on behalf of whom
such holder holds the Old
Capital Securities to be
exchanged in the Exchange Offer.
Each broker-dealer that receives
New Capital Securities for its
own account pursuant to the
Exchange Offer must acknowledge
that it will deliver a
prospectus in connection with
any resale of such New Capital
Securities. The Letter of
Transmittal states that by so
acknowledging and by delivering
a prospectus, a broker-dealer
will not be deemed to admit that
it is an "underwriter" within
the meaning of the Securities
Act. This Prospectus, as it may
be amended or supplemented from
time to time, may be used by a
broker-dealer in connection with
resales of New Capital
Securities received in exchange
for Old Capital Securities where
such Old Capital Securities were
acquired by such broker-dealer
as a result of market-making
activities or other trading
activities. The Corporation and
the Trust have agreed that,
starting on the date on which
the Exchange Offer is
consummated and ending on the
close of business one year after
such date, they will make this
Prospectus available to any
broker-dealer for use in
connection with any such resale.
See "Plan of Distribution."
However, an Exchanging Dealer
that intends to use this
Prospectus in connection with
the resale of New Capital
Securities pursuant to the
Exchange Offer must notify the
Corporation or the Trust, or
cause the Corporation or the
Trust to be notified, on or
prior to the Expiration Date,
that it is an Exchanging Dealer.
Such notice may be given in the
space provided for that purpose
in the Letter of Transmittal or
may be delivered to the Exchange
Agent at the address set forth
herein under "The Exchange
Offer--Exchange Agent." Any
Exchanging Dealer who is an
"affiliate" of the Corporation
or the Trust may not rely on the
no-action letters mentioned in
the preceding paragraph and must
comply with the registration and
prospectus delivery requirements
of the Securities Act in
connection with any resale
transaction. See "The Exchange
Offer--Resales of New Capital
Securities."
In that regard, each Exchanging
Dealer who surrenders Old Capital
Securities pursuant to the
Exchange Offer will be deemed to
have agreed, by execution of the
Letter of Transmittal or
delivery of an Agent's Message,
that, upon receipt of notice
from the Corporation or the
Trust of the occurrence of any event
or the discovery of any fact which
12
<PAGE>
makes any statement contained
or incorporated by reference
in this Prospectus untrue in any
material respect or which causes
this Prospectus to omit to state
a material fact necessary in
order to make the statements
contained or incorporated by
reference herein, in the light
of the circumstances under which
they were made, not misleading,
or of the occurrence of certain
other events specified in the
Registration Rights Agreement,
such Exchanging Dealer will
suspend the sale of New
Securities pursuant to this
Prospectus until the Corporation
or the Trust has amended or
supplemented this Prospectus to
correct such misstatement or
omission and has furnished
copies of the amended or
supplemented Prospectus to such
Exchanging Dealer, or the
Corporation or the Trust has
given notice that the sale of
the New Securities may be
resumed, as the case may be.
Exchange Agent ............ The Exchange Agent is The
Chase Manhattan Bank. The
address and telephone and
facsimile numbers of the
Exchange Agent are set forth
under "The Exchange
Offer--Exchange Agent" and in
the Letter of Transmittal.
Use of Proceeds .......... Neither the Corporation nor the
Trust will receive any cash proceeds
from the issuance of the New Capital
Securities offered hereby. The Old
Capital Securities surrendered in
exchange for the New Capital Securities
will be retired and canceled. See
"Use of Proceeds."
Certain Federal
Income Tax
Consequences;
ERISA Considerations ...... Holders of Old Capital Securities
should carefully review the
information set forth under "Certain
Federal Income Tax Consequences" and
"ERISA Considerations" prior to
tendering Old Capital Securities in the
Exchange Offer.
The Capital Securities
The Exchange Offer applies to the Old Securities. The terms
of the New Securities are identical in all material respects to
the respective terms of the Old Securities, except that (i) the
New Securities have been registered under the Securities Act and
therefore will not be subject to certain restrictions on transfer
applicable to the Old Securities, (ii) the New Capital Securities
will not provide for any increase in the distribution rate
thereon, and (iii) the New Junior Subordinated Debentures will
not provide for any increase in the interest rate thereon. In the
event that the Exchange Offer is consummated, any Old Capital
Securities which remain outstanding after consummation of the
Exchange Offer will vote together with the New Capital Securities
issued in the Exchange Offer as a single class for purposes of
determining whether holders of the requisite percentage in
outstanding liquidation amount thereof have taken certain actions
or exercised certain rights under the Trust Agreement.
Securities Offered ........ 50,000 9.27% Capital Securities,
Series B (Liquidation Amount
$1,000 per Capital Security).
Distribution Dates ........ June 6 and December 6 of each year,
commencing December 6, 1997.
Extension Periods ......... So long as no Debenture Event of Default
(as defined herein) has occurred and is
continuing, distributions on Capital
Securities will be deferred for the
duration of any Extension
13
<PAGE>
Period elected by the Corporation
with respect to the payment
of interest on the Junior
Subordinated Debentures.
No Extension Period will exceed
10 consecutive semi-annual
periods, end on a day other than
an Interest Payment Date or
extend beyond the Stated
Maturity Date. See "Description
of Junior Subordinated
Debentures--Option to Extend
Interest Payment Date" and
"Certain Federal Income Tax
Consequences--Interest Income
and Original Issue Discount."
Ranking ................... The Capital Securities rank pari passu,
and payments thereon will be made pro rata,
with the Common Securities except as
described under "Description of Capital
Securities-- Subordination of Common
Securities." The Junior Subordinated
Debentures rank pari passu with all
other junior subordinated debentures (if
any) issued by the Corporation ("Other
Debentures") and sold (if at all) to
other trusts (if any) established by the
Corporation (if any), in each case
similar to the Trust ("Other Trusts"),
and are unsecured and subordinate and
rank junior in right of payment to all
Senior Indebtedness to the extent and in
the manner set forth in the Indenture.
See "Description of Junior Subordinated
Debentures." The Guarantee ranks pari
passu with all other guarantees (if any)
issued by the Corporation with respect
to capital securities (if any) issued by
Other Trusts ("Other Guarantees") and is
unsecured and subordinate and ranks
junior in right of payment to all Senior
Indebtedness to the extent and in the
manner set forth in the Guarantee. See
"Description of Guarantee."
Redemption ................ The Trust Securities are subject to
mandatory redemption in a Like Amount,
(i) in whole but not in part, on the Stated
Maturity Date upon repayment of the
Junior Subordinated Debentures, (ii) in
whole but not in part, at any time prior
to June 6, 2007, contemporaneously with
the optional prepayment of the Junior
Subordinated Debentures by the
Corporation upon the occurrence and
continuation of a Special Event and
(iii) in whole or in part, on or after
June 6, 2007, contemporaneously with the
optional prepayment by the Corporation
of the Junior Subordinated Debentures,
in each case at the applicable
Redemption Price. See "Description of
Capital Securities--Redemption."
Voting Rights ............. Holders of Capital Securities have limited
voting rights relating generally to the
modification of the Capital Securities
and the Guarantee and the exercise of
the Trust's rights as the holder of the
Junior Subordinated Debentures. Holders
of Capital Securities are not entitled
to appoint, remove or replace the
Administrators at any time. Holders of
Capital Securities are not entitled to
appoint, remove or replace the Property
Trustee or the Delaware Trustee except
upon the occurrence of a Debenture Event
of Default as described herein. See
"Description of Capital
Securities--Voting Rights; Amendment of
the Trust Agreement" and "--
14
<PAGE>
Removal of Issuer Trustees."
Ratings The New Capital Securities are expected
to be rated BB+ by Fitch Investors Service,
Inc. and BB by Standard & Poor's Ratings
Services.
Transfer Restrictions ..... The Old Capital Securities were issued and
the New Capital Securities will be issued,
and may be transferred, only in blocks
having a Liquidation Amount of not less
than $100,000 (100 Capital Securities).
See "Description of Capital
Securities--Restrictions on Transfer."
Any such transfer of Capital Securities
in a block having a Liquidation Amount
of less than $100,000 shall be deemed to
be void and of no legal effect
whatsoever.
Absence of Market
for the New Capital
Securities ................ The New Capital Securities
will be a new issue of securities for
which there currently is no market.
Although the Initial Purchaser
previously informed the Trust and the
Corporation in connection with the
offering of the Old Capital Securities
that it intended to make a market in the
Old Capital Securities, the Initial
Purchaser is not obligated to make a
market in the Capital Securities, and
any such market making may be
discontinued at any time without notice.
Moreover, there can be no assurance as
to the development or liquidity of any
market for the New Capital Securities.
The Trust and the Corporation do not
intend to apply for listing of the New
Capital Securities on any securities
exchange or for quotation through the
NASDAQ System. See "Plan of
Distribution."
15
<PAGE>
RISK FACTORS
Prior to tendering Old Capital Securities in the Exchange
Offer, holders of the Old Capital Securities should carefully
review the information contained elsewhere in this Prospectus and
should particularly consider the following matters.
Consequences of Failure to Exchange Old Capital Securities
The Old Capital Securities have not been registered under
the Securities Act or any state securities laws and therefore may
not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Securities
Act and any other applicable securities laws, or pursuant to an
exemption therefrom or in a transaction not subject thereto, and
in each case in compliance with certain other conditions and
restrictions. Old Capital Securities which remain outstanding
after consummation of the Exchange Offer will continue to bear a
legend reflecting such restrictions on transfer. In addition, the
Old Capital Securities provide, among other things, that if,
under certain circumstances as set forth in the Registration
Rights Agreement, the Exchange Offer is not consummated within 35
days of the effectiveness of the Registration Statement of which
this Prospectus is a part, the annual distribution rate borne by
the Old Capital Securities will increase by 0.50% until the
Exchange Offer is consummated. Upon consummation of the Exchange
Offer, holders of Old Capital Securities which remain outstanding
will not be entitled to any rights to have such Old Capital
Securities registered under the Securities Act or to any similar
rights under the Registration Rights Agreement (subject to
certain limited exceptions). The Corporation and the Trust do not
intend to register under the Securities Act any Old Capital
Securities which remain outstanding after consummation of the
Exchange Offer (subject to such limited exceptions, if
applicable).
To the extent that Old Capital Securities are tendered and
accepted in the Exchange Offer, a holder's ability to sell
untendered Old Capital Securities could be adversely affected. In
addition, any trading market for Old Capital Securities which
remain outstanding after the Exchange Offer (including the PORTAL
market) could be adversely affected.
The New Capital Securities and any Old Capital Securities
which remain outstanding after consummation of the Exchange Offer
will constitute a single series of Capital Securities under the
Trust Agreement and, accordingly, will vote together as a single
class for purposes of determining whether holders of the
requisite percentage in outstanding liquidation amount thereof
have taken certain actions or exercised certain rights under the
Trust Agreement. See "Description of Capital Securities."
Exchange Offer Procedures
Issuance of the New Capital Securities in exchange for Old
Capital Securities pursuant to the Exchange Offer will be made
only after a timely receipt by the Exchange Agent of such Old
Capital Securities, a properly completed and duly executed Letter
of Transmittal or Agent's Message in lieu thereof and all other
required documents. Therefore, holders of the Old Capital
Securities desiring to tender such Old Capital Securities in
exchange for New Capital Securities should allow sufficient time
to ensure timely delivery. Neither the Corporation, the Trust nor
the Exchange Agent is under any duty to give notification of
defects or irregularities with respect to the tenders of Old
Capital Securities for exchange.
Ranking of Subordinated Obligations Under the Guarantee
and the Junior Subordinated Debentures
The obligations of the Corporation under the Guarantee and
the Junior Subordinated Debentures are unsecured and subordinate
and rank junior in right of payment to all Senior Indebtedness.
In addition, in the case of a bankruptcy or insolvency
proceeding, the Corporation's obligations under the Guarantee
will also rank subordinate and junior in right of payment to all
liabilities (other than Other Guarantees) of the Corporation. At
September 30, 1997, the Corporation had no Senior Indebtedness.
As a holding company, the right of the Corporation to participate
in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise (and thus
the ability of holders of the Capital Securities to benefit
indirectly from such
16
<PAGE>
distribution) is subject to the prior claims of creditors of that
subsidiary, except to the extent that the Corporation may itself
be recognized as a creditor of that subsidiary. At September 30,
1997, ALBANK, FSB, a federally chartered savings association (the
"Bank"), had an aggregate (excluding deposits and liabilities
owed to the Corporation) of approximately $238.6 million of
borrowings outstanding. Accordingly, the Junior Subordinated
Debentures are effectively subordinated to all existing and
future liabilities of the Bank and other subsidiaries of the
Corporation, and holders of Junior Subordinated Debentures should
look only to the assets of the Corporation for payments on the
Junior Subordinated Debentures. In addition, the Bank is subject
to certain restrictions imposed by federal law on any loans or
extensions of credit to, investments in or asset purchases from,
the Corporation or its non-banking affiliates. Such transactions
by the Bank are generally limited in amount as to the Corporation
and as to each of such other affiliates to 10% of the Bank's
capital and surplus and as to the Corporation and all of such
other affiliates to an aggregate of 20% of the Bank's capital and
surplus. Such restrictions also prevent the Corporation and such
other affiliates from borrowing from the Bank unless the loans
are secured in specified amounts. In addition, there are federal
regulatory limitations on the payment of dividends directly or
indirectly to the Corporation from the Bank. Federal regulatory
agencies also have the authority to limit payment of dividends by
the Bank based on the capital adequacy of the Bank and the safety
and soundness of the Bank following payment of the proposed
dividend. None of the Indenture, the Guarantee or the Trust
Agreement places any limitation on the amount of indebtedness,
including Senior Indebtedness, that may be incurred by the
Corporation. See "Description of Guarantee--Status of the
Guarantee" and "Description of Junior Subordinated
Debentures--Subordination."
The ability of the Trust to pay amounts due on the Capital
Securities is solely dependent upon the Corporation making
payments on the Junior Subordinated Debentures as and when
required.
Option to Extend Interest Payment Period; Tax Considerations
So long as no Debenture Event of Default shall have
occurred and be continuing, the Corporation will have the right
under the Indenture to defer payments of interest on the Junior
Subordinated Debentures at any time or from time to time for a
period not exceeding 10 consecutive semi-annual periods with
respect to each Extension Period, provided that no Extension
Period may extend beyond the Stated Maturity Date. Upon any such
deferral, semi-annual Distributions on the Trust Securities by
the Trust will be deferred (and the amount of Distributions to
which holders of the Trust Securities are entitled will
accumulate additional Distributions thereon at the rate of 9.27%
per annum, compounded semi-annually from the relevant
Distribution Date, but not exceeding the interest rate then
accruing on the Junior Subordinated Debentures) from the
respective payment dates for such Distributions during the
relevant Extension Period.
The Corporation may extend any existing Extension Period,
provided that such extension does not cause such Extension Period
to exceed 10 consecutive semi-annual periods or to extend beyond
the Stated Maturity Date. Upon the expiration of any Extension
Period and the payment of all interest then accrued and unpaid on
the Junior Subordinated Debentures (together with interest
thereon at the annual rate of 9.27%, compounded semi-annually, to
the extent permitted by applicable law), the Corporation may
elect to begin a new Extension Period, subject to the above
requirements. There is no limitation on the number of times that
the Corporation may elect to begin an Extension Period. See
"Description of Capital Securities--Distributions" and
"Description of Junior Subordinated Debentures--Option to Extend
Interest Payment Date."
Should the Corporation exercise its right to defer payments
of interest on the Junior Subordinated Debentures, each holder of
Trust Securities will be required to accrue income (as original
issue discount ("OID")) in respect of the deferred stated
interest allocable to its Trust Securities for United States
federal income tax purposes, which will be allocated but not
distributed to holders of Trust Securities. As a result, each
holder of Capital Securities will recognize income for United
States federal income tax purposes in advance of the receipt of
cash and will not receive the cash related to such income from
the Trust if the holder disposes of the Capital Securities prior
to the record date for the payment of Distributions thereafter.
See "Certain Federal Income Tax Consequences--Interest Income and
Original Issue Discount" and "--Sales of Capital Securities."
17
<PAGE>
Should the Corporation elect to exercise its right to defer
payments of interest on the Junior Subordinated Debentures in the
future, the market price of the Capital Securities is likely to
be affected. A holder that disposes of its Capital Securities
during an Extension Period, therefore, might not receive the same
return on its investment as a holder that continues to hold its
Capital Securities. In addition, merely as a result of the
existence of the Corporation's right to defer payments of
interest on the Junior Subordinated Debentures, the market price
of the Capital Securities may be more volatile than the market
prices of other securities on which OID accrues and that are not
subject to such deferrals.
Special Event Redemption
Upon the occurrence and continuation of a Special Event (as
defined under "Description of Junior Subordinated
Debentures--Special Event Prepayment"), the Corporation will have
the right to prepay the Junior Subordinated Debentures in whole
(but not in part) prior to June 6, 2007, at the Special Event
Prepayment Price within 90 days following the occurrence of such
Special Event and therefore cause a mandatory redemption of the
Trust Securities at the Special Event Redemption Price. The
exercise of such right is subject to the Corporation having
received all required regulatory approvals. See "Description of
Capital Securities--Redemption" and "--Liquidation of the Trust
and Distribution of Junior Subordinated Debentures."
Possible Adverse Effect on Market Prices
There can be no assurance as to the market prices for
Capital Securities or Junior Subordinated Debentures distributed
to the holders of Capital Securities if a termination of the
Trust were to occur. Accordingly, the Capital Securities or the
Junior Subordinated Debentures may trade at a discount from the
price that an investor paid to purchase the Old Capital
Securities. Because holders of Capital Securities may receive
Junior Subordinated Debentures in liquidation of the Trust and
because Distributions are otherwise limited to payments on the
Junior Subordinated Debentures, holders of Old Capital Securities
are also making an investment decision with regard to the Junior
Subordinated Debentures and should carefully review all the
information regarding the Junior Subordinated Debentures
contained herein. See "Description of Junior Subordinated
Debentures."
Rights Under the Guarantee
The Chase Manhattan Bank acts as Guarantee Trustee and
holds the Guarantee for the benefit of the holders of the Capital
Securities. The Chase Manhattan Bank also acts as Property
Trustee and as Debenture Trustee under the Indenture. Chase
Manhattan Bank Delaware acts as Delaware Trustee under the Trust
Agreement. The Guarantee guarantees to the holders of the Capital
Securities the following payments, to the extent not paid by the
Trust: (i) any accumulated and unpaid Distributions required to
be paid on the Capital Securities, to the extent that the Trust
has funds on hand legally available therefor at such time, (ii)
the applicable Redemption Price with respect to any Capital
Securities called for redemption, to the extent that the Trust
has funds on hand legally available therefor at such time, and
(iii) upon a voluntary or involuntary termination and liquidation
of the Trust (unless the Junior Subordinated Debentures are
distributed to holders of the Capital Securities), the lesser of
(a) the aggregate of the Liquidation Amount and all accumulated
and unpaid Distributions to the date of payment, to the extent
that the Trust has funds on hand legally available therefor at
such time and (b) the amount of assets of the Trust remaining
available for distribution to holders of the Capital Securities
at such time. The holders of a majority in Liquidation Amount of
the Capital Securities have the right to direct the time, method
and place of conducting any proceeding for any remedy available
to the Guarantee Trustee in respect of the Guarantee or to direct
the exercise of any trust power conferred upon the Guarantee
Trustee. Any holder of the Capital Securities may institute a
legal proceeding directly against the Corporation to enforce its
rights under the Guarantee without first instituting a legal
proceeding against the Trust, the Guarantee Trustee or any other
person or entity.
If the Corporation defaults on its obligation to pay
amounts payable under the Junior Subordinated Debentures, the
Trust will not have sufficient funds for the payment of
Distributions or amounts payable on redemption of the Capital
Securities or otherwise, and, in such event, holders of the
Capital Securities will not be
18
<PAGE>
able to rely upon the Guarantee for payment of such amounts.
Instead, in the event a Debenture Event of Default shall have
occurred and be continuing and such event is attributable to the
failure of the Corporation to pay the principal of (or premium,
if any) or interest on the Junior Subordinated Debentures on the
payment date on which such payment is due and payable, then a
holder of Capital Securities may institute a legal proceeding
directly against the Corporation for enforcement of payment to
such holder of the principal of (or premium, if any) or interest
on such Junior Subordinated Debentures having an aggregate
principal amount equal to the Liquidation Amount of the Capital
Securities of such holder (a "Direct Action"). Notwithstanding
any payments made to a holder of Capital Securities by the
Corporation in connection with a Direct Action, the Corporation
shall remain obligated to pay the principal of (and premium, if
any) and interest on the Junior Subordinated Debentures, and the
Corporation shall be subrogated to the rights of the holder of
such Capital Securities with respect to payments on the Capital
Securities to the extent of any payments made by the Corporation
to such holder in any Direct Action. Except as described herein,
holders of Capital Securities will not be able to exercise
directly any other remedy available to the holders of the Junior
Subordinated Debentures or to assert directly any other rights in
respect of the Junior Subordinated Debentures. See "Description
of Junior Subordinated Debentures--Enforcement of Certain Rights
by Holders of Capital Securities," "--Debenture Events of
Default" and "Description of Guarantee." The Trust Agreement
provides that each holder of Capital Securities by acceptance
thereof agrees to the provisions of the Indenture.
Limited Voting Rights
Holders of Capital Securities generally have limited voting
rights relating only to the modification of the Capital
Securities and the Guarantee, the dissolution or liquidation of
the Trust, and the exercise of the Trust's rights as holder of
Junior Subordinated Debentures. Holders of Capital Securities are
not entitled to vote to appoint, remove or replace the
Administrators at any time. Holders of Capital Securities are not
entitled to appoint, remove or replace the Property Trustee or
the Delaware Trustee except upon the occurrence of a Debenture
Event of Default as described herein. The Property Trustee and
the Corporation may amend the Trust Agreement without the consent
of holders of Capital Securities to ensure that the Trust will be
classified for United States federal income tax purposes as a
grantor trust and will not be required to register as an
investment company under the Investment Company Act of 1940, as
amended (the "Investment Company Act") even if such action
adversely affects the interests of such holders. See "Description
of Capital Securities--Voting Rights; Amendment of the Trust
Agreement" and "--Removal of Issuer Trustees."
Absence of Public Market
The Old Capital Securities were issued to, and the
Corporation believes the Old Capital Securities are currently
owned by, a relatively small number of beneficial owners. The Old
Capital Securities have not been registered under the Securities
Act and are subject to transfer restrictions (including a
limitation on transfer to only blocks having a Liquidation Amount
of not less than $100,000 (100 Capital Securities)). The New
Capital Securities will also be transferable only in blocks
having a Liquidation Amount of not less than $100,000 (100
Capital Securities). Although the New Capital Securities
generally may be resold or otherwise transferred by the holders
(who are not affiliates of the Corporation or the Trust) without
compliance with the registration requirements of the Securities
Act, there is no existing market for the New Capital Securities
and there can be no assurance as to the liquidity of any markets
that may develop for the New Capital Securities, the ability of
the holders to sell their New Capital Securities or the price at
which holders of the New Capital Securities will be able to sell
their New Capital Securities, as the case may be. Future trading
prices of the Capital Securities will depend on many factors
including, among other things, prevailing interest rates, the
Corporation's operating results, and the market for similar
securities. The Initial Purchaser previously informed the Trust
and the Corporation in connection with the offering of the Old
Capital Securities that it intended to make a market in the Old
Capital Securities, and the Initial Purchaser has informed the
Trust and the Corporation that it intends to make a market in the
New Capital Securities. However, the Initial Purchaser is not
obligated to make a market in the Old Capital Securities or the
New Capital Securities and any such market making activity may be
terminated at any time without notice to the holders of the
Capital Securities. In addition, such market making activity will
be subject to the limits of the Securities Act and may be limited
during the pendency of the Exchange Offer.
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<PAGE>
The New Capital Securities will not be listed on a
securities exchange or designated for quotation through the
NASDAQ system. Notwithstanding the registration under the
Securities Act of the New Capital Securities in the Exchange
Offer, which will generally permit such New Capital Securities to
be resold or otherwise transferred without further registration
under the Securities Act, holders who are "affiliates" of the
Corporation or the Trust within the meaning of Rule 405 under the
Securities Act may publicly offer for sale or resell the New
Capital Securities only in compliance with such registration
requirements or the provisions of Rule 144 under the Securities
Act. Each tendering holder of the Old Capital Securities will be
deemed to have made certain acknowledgments, representations and
agreements in relation to its affiliate status. In addition, each
broker-dealer that receives New Capital Securities for its own
account pursuant to the Exchange Offer, where the corresponding
Old Capital Securities were acquired by such broker-dealer as a
result of market-making activities or other trading activities,
must acknowledge that it will deliver a prospectus in connection
with any resale of such New Capital Securities. See "Plan of
Distribution."
Consequences of a Highly Leveraged Transaction
The Indenture does not contain any provisions that afford
holders of the Junior Subordinated Debentures protection in the
event of a highly leveraged transaction, including a change of
control or other similar transactions involving the Corporation
that may adversely affect such holders. See "Description of
Junior Subordinated Debentures."
20
<PAGE>
ALBANK FINANCIAL CORPORATION
General
ALBANK, through its subsidiary, ALBANK, FSB, a federally
chartered savings association (the "Bank"), serves approximately
350,000 customers in eastern and central upstate New York,
Vermont and western Massachusetts through 73 branch offices.
Headquartered in Albany, New York, ALBANK has grown significantly
in recent years, primarily through a series of acquisitions which
have expanded and strengthened its franchise and accelerated
ALBANK's shift from a traditional thrift institution to a more
bank-like financial institution.
ALBANK has completed five acquisitions in recent years.
Assets/
Deposits(1)
Acquisition (Dollars in Market
Date Acquisition in millions) Area
---- ----------- ------------ ----
09/27/96 Arrow Financial Branches $108 Vermont
01/03/96 Marble Financial Corporation 396 Vermont
06/03/95 The Dime Savings Bank Branch 18 Upstate New York
10/21/94 Ludlow Savings Bank Branches 216 Western Massachusetts
03/12/93 The Dime Savings Bank Branches 397 Upstate New York
- -------------
(1) The $396 million for the Marble Financial Corporation
acquisition represents the amount of assets acquired. All
other dollar amounts represent deposits acquired.
All of the acquisitions have been accretive to earnings per
share and have enabled ALBANK to improve operating efficiency
through the elimination of duplicative operations.
ALBANK continues to expand its banking activities,
particularly its commercial and consumer banking operations,
which generally generate higher net interest margins and fees
than those available from residential mortgage lending. From 1992
through 1996, ALBANK increased its commercial and consumer loan
portfolio from 13.1% of total loans to 18.8% of total loans, an
annual growth rate of almost 10%. Over the same period, NOW and
demand deposits have grown at an average annual rate of almost
4%, from 9.9% of total deposits to 11.4% of total deposits. The
shift in lines of business has contributed to the increase in
ALBANK's net interest margin, which was 3.91% for the year ended
December 31, 1996, compared to 3.61% for the year end December
31, 1992.
ALBANK, as a holding company, and the Bank are subject to
comprehensive regulation, examination and supervision by the
Office of Thrift Supervision, as the primary federal regulator.
At December 31, 1996, the Bank's deposits were federally insured,
with 66% insured by the SAIF and 34% treated as insured by the
Bank Insurance Fund ("BIF") of the Federal Deposit Insurance
Corporation.
The Corporation's executive offices are located at 10 North
Pearl Street, Albany, New York 12207. Its telephone number is
(518) 445-2100.
Pending Acquisitions
In January 1997, ALBANK announced a definitive purchase
agreement to acquire 35 branch offices in eastern and central
upstate New York from Key Bank N.A. for a premium of
approximately 7% of total deposits acquired. Of the 35 branches
acquired, 16 operate in counties in which ALBANK currently has an
office, and the remaining 19 branches are primarily in counties
that are contiguous with its current operations. As of October 31,
21
<PAGE>
1996, the 35 branches had total deposits of approximately $530
million and related small business, consumer and mortgage loans
of approximately $53 million. The Key Branch Acquisition has
received all necessary regulatory approvals.
In August 1997, ALBANK announced a definitive purchase
agreement to acquire three New York state branch offices from
First Union National Bank, with total deposits of approximately
$33.5 million. All three branches acquired operate in counties in
which ALBANK currently has an office. The First Union Branch
Acquisition is subject to regulatory approval.
22
<PAGE>
ALBANK SUMMARY RESULTS
Year Ended December 31, 1996
ALBANK's net income for 1996, including the after-tax
impact of the one-time SAIF recapitalization assessment, which
the Federal Deposit Insurance Corporation levied against all
SAIF-insured institutions effective in the third quarter of 1996,
of $6.4 million, was $26.2 million, or $1.83 per fully diluted
share. Net income in 1995, including the $0.7 million after-tax
write-off of the Corporation's investment in Nationar, a special
purpose commercial bank which the NYS Banking Superintendent took
control of in February 1995, totaled $29.3 million, or $1.93 per
fully diluted share. Return on average stockholders' equity was
8.20% for 1996, compared with 9.09% in 1995, while return on
average assets amounted to 0.77% and 0.99% for the respective
years.
Excluding the aforementioned 1996 SAIF and the 1995
after-tax Nationar charge, ALBANK reported core net income of
$32.6 million for 1996, up 9% from the $30.0 million it reported
in 1995. Its 1996 core earnings per share on a fully diluted
basis were $2.28 compared with $1.98 earned in 1995, an increase
of 15%. ALBANK's return on average stockholders' equity in 1996
based on core earnings was 10.20% compared with 9.32% in 1995;
return on average assets for 1996 based on core earnings was
0.96% compared with 1.01% in 1995.
The Corporation's 1996 net interest spread increased to
3.52% from 3.40% in 1995, while its 1996 net interest margin was
3.91%, up from 1995's 3.84%. Net interest income was $125.6
million for 1996, a 16% increase from the $108.5 million earned
in 1995. ALBANK's efficiency ratio was 54.32% in 1996, compared
with 52.91% in 1995. ALBANK's loan originations in 1996 totaled
$638.4 million, a 39% increase from 1995's total of $459.2
million. Total loans receivable at December 31, 1996 were $2,566
million, up 32% from year-end 1995's total of $1,947 million. At
December 31, 1996, ALBANK's loan portfolio consisted of 74.2%
residential mortgages (including home equity loans), 9.7%
commercial loans, 9.1% consumer and other loans, 6.5% commercial
real estate loans and 0.5% construction loans. At December 31,
1996, ALBANK's deposit portfolio held 46.8% in CD's less than
$100,000, 27.4% in savings accounts, 11.4% in NOW and demand
accounts, 8.6% in money market accounts and 5.8% in CD's greater
than $100,000. Stockholders' equity was $319.1 million at
year-end 1996 versus $323.2 million at year-end 1995. During
1996, ALBANK invested $25.8 million in its ongoing stock
repurchase campaign, acquiring an additional 926,517 shares of
its outstanding common stock. Consolidated stockholders' equity
as a percentage of total assets at December 31, 1996 was 9.10%,
compared with 10.88% at December 31, 1995.
ALBANK's 1996 earnings on a cash basis (that is, core net
income plus amortization of goodwill and costs associated with
certain employee benefit plans) were $36.3 million, an increase
of 12% compared with $32.3 million in 1995. Cash basis earnings
per fully diluted share were $2.54 in 1996 compared with $2.13 in
1995. Return on tangible equity amounted to 12.95% compared with
10.65% in 1995, while return on tangible assets for 1996 was
1.09% compared with 1.10% in 1995.
At December 31, 1996, nonperforming assets totaled $33.8
million, or 0.96% of total assets; comparable figures for 1995
were $27.1 million, or 0.91% of total assets. Nonperforming loans
amounted to $29.8 million, or 1.16% of loans receivable, at
December 31, 1996, compared with $23.2 million, or 1.19% of loans
receivable, at December 31, 1995. The 1996 year-end percentage of
nonperforming assets is 0.19% lower than it was at September 30,
1996 because ALBANK sold $10.3 million of nonperforming
residential mortgage loans in December 1996. The increase in
nonperforming assets during the first three quarters of 1996 was
principally attributable to acquisitions which ALBANK made during
that period. At year-end 1996, ALBANK's loan loss reserve was
equal to 81% of nonperforming loans, up from 69% at December 31,
1995. ALBANK has shown an improvement in its asset quality, with
nonperforming assets to total assets decreasing from 1.15% at
December 31, 1992 to 0.96% at December 31, 1996. Nonperforming
loans to loans receivable also improved from 1.60% at December
31, 1992 to 1.16% at December 31, 1996. At December 31, 1996, the
Corporation had consolidated assets of $3.5 billion, deposits of
$3.0 billion, and stockholders' equity of $319 million.
23
<PAGE>
Nine Months Ended September 30, 1997 (Unaudited)
Net income for the nine months ended September 30, 1997 was
$28.1 million, an increase of $10.9 million (64%) from the
comparable nine-month period last year. Primary and fully diluted
earnings per share were $2.03 and $2.02, respectively, for the
first nine months of 1997, up from $1.20 per share a year ago,
representing increases of 69% and 68%, respectively.
Net interest income increased $7.5 million (8%) from the
comparable nine-month period last year, and totaled $101.0
million for the first nine months of 1997. Noninterest income
increased $1.0 million (12%) from the comparable nine-month
period last year. Noninterest expense decreased $8.8 million
(13%) from the comparable nine-month period last year.
Noninterest income totaled $10.1 million while noninterest
expense totaled $61.1 million for the first nine months of 1997
compared with $9.0 million and $69.9 million, respectively, for
the comparable 1996 period. Return on average equity and return
on average assets for the first nine months of 1997 were 11.46%
and 1.06%, respectively. For the comparable 1996 period, return
on average equity was 7.18%, while return on average assets was
0.69%.
Core net income for the nine months ended September 30, 1997
was $28.0 million, an increase of $4.4 million (19%) from the
comparable nine-month period last year. Fully diluted core
earnings per share were $2.01 for the first nine months of 1997,
up from $1.64 per share a year ago, representing an increase of
23%. Core return on average equity and core return on average
assets for the first nine months of 1997 were 11.39% and 1.05%,
respectively. For the comparable 1996 period, core return on
average equity was 9.85%, while core return on average assets was
0.94%. The Corporation's core net income for the nine months
ended September 30, 1997 excludes the $0.2 million recovery of
the Corporation's capital investment in Nationar in April 1997;
the Corporation's core net income for the nine months ended
September 30, 1996 excludes the net after-tax effect of the $6.4
million special assessment to recapitalize the SAIF in September
1996.
Cash net income for the nine months ended September 30,
1997 was $31.8 million or $2.29 and $2.28 per share on a primary
and fully diluted basis, respectively. Cash net income for the
nine months ended September 30, 1996 was $27.4 million or $1.92
and $1.91 per share on a primary and fully diluted basis,
respectively. Cash return on tangible equity was 14.85% compared
with 12.97% for the same period last year; cash return on average
assets rose to 1.20% from 1.09% in 1996.
The Corporation's net interest margin was 3.99% in the
first nine months of 1997 versus 3.92% in the first nine months
of 1996. In addition, its net interest spread increased to 3.54%
from 3.52% a year ago. ALBANK's efficiency ratio for the first
nine months of 1997 was 50.56% compared with 54.41% for the same
period in 1996. Equity to assets at September 30, 1997 was 9.24%
compared with 8.95% at September 30, 1996.
The provision for loan losses amounted to $5.4 million for
the nine months ended September 30, 1997, compared with $4.3
million a year ago. The Corporation's allowance for loan losses
totaled $26.5 million (0.97% of loans receivable and 83.43% of
nonperforming loans) at September 30, 1997, compared with $24.1
million (0.94% of loans receivable and 80.88% of nonperforming
loans) at December 31, 1996. The increase in the allowance during
the first nine months of 1997 was the net result of a provision
for loan losses of $5.4 million reduced by net chargeoffs of $3.1
million.
At September 30, 1997, nonperforming assets totaled $34.9
million, or 0.94% of total assets compared with $40.4 million, or
1.15% of total assets at September 30, 1996. Nonperforming loans
totaled $31.7 million, or 1.17% of loans receivable at September
30, 1997 versus $34.5 million, or 1.37% of loans receivable at
September 30, 1996. At September 30, 1997, the Corporation had
consolidated assets of $3.7 billion, deposits of $3.0 billion,
and capital of $344 million.
ACCOUNTING TREATMENT
The financial statements of the Trust will be consolidated
into the Corporation's consolidated financial statements, with
the Capital Securities shown in the Corporation's consolidated
balance sheet as "Corporation-Obligated Mandatorily Redeemable
Capital Securities of Subsidiary Trust Holding Solely Junior
Subordinated Debentures of the Corporation." The financial
statement footnotes of the Corporation will reflect that the sole
asset of the Trust will be $51,547,000 principal amount of the
Junior Subordinated Debentures, bearing interest at 9.27% and
maturing on June 6, 2027. See "Capitalization."
USE OF PROCEEDS
Neither the Corporation nor the Trust will receive any cash
proceeds from the issuance of the New Capital Securities offered
hereby. In consideration for issuing the New Capital Securities
in exchange for the Old Capital Securities as described in this
Prospectus, the Trust will receive Old Capital Securities in like
liquidation
24
<PAGE>
amount. The Old Capital Securities surrendered in exchange for
the New Capital Securities will be retired and canceled.
The proceeds to the Trust (without giving effect to
expenses of the offering payable by the Corporation) from the
offering of the Old Capital Securities was $50,000,000. All of
the proceeds from the sale of the Old Capital Securities and the
Common Securities were invested by the Trust in the Old Junior
Subordinated Debentures. The Corporation has used and intends to
use the net proceeds from the sale of the Junior Subordinated
Debentures to fund in part the capital of a new commercial bank
being established in connection with the Key Branch Acquisition
and for general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to
fixed charges of the Corporation for the respective periods
indicated.
Nine Months
Ended
September 30, Years Ended December 31,
------------ ------------------------------------
1997 1996 1996 1995 1994 1993 1992
---- ---- ---- ---- ---- ---- ----
Ratio of
Earnings to
Fixed Charges:
Excluding
interest on
deposits 9.54x 13.24x 12.60x 53.92x 26.93x 35.70x 18.14x
Including
interest on
deposits 1.46x 1.31x 1.34x 1.45x 1.59x 1.50x 1.35x
For purposes of computing the ratio of earnings to fixed
charges, earnings represent net income before extraordinary items
plus applicable income taxes and fixed charges. Fixed charges
include gross interest expense (excluding or including interest
on deposits, as indicated) and the proportion deemed
representative of the interest factor of rent expense.
CAPITALIZATION
The following table sets forth the consolidated
capitalization of the Corporation as of September 30, 1997. The
following data should be read in conjunction with the financial
information incorporated herein by reference. See "Incorporation
of Certain Documents by Reference." The issuance of the New
Capital Securities in the Exchange Offer will have no effect on
the capitalization of the Company.
As of September 30, 1997
(Dollars in thousands)
Long-term debt ....................................... $20,061
Corporation-obligated mandatorily redeemable
capital securities of subsidiary trust
holding solely Junior Subordinated Debentures
of the Corporation (1) ............................. 50,000
Stockholders' equity:
Preferred stock, $.01 par value. Authorized
25,000,000 shares; none outstanding ................ --
Common stock, $.01 par value. Authorized
50,000,000 shares; 15,697,500 shares issued;
12,872,195 shares outstanding ...................... 157
Additional paid-in capital ........................... 182,328
Retained earnings, substantially restricted .......... 235,728
Treasury stock, at cost (2,825,305 shares) ........... (73,898)
Unrealized gain on securities available for
sale, net of tax ................................... 5,130
25
<PAGE>
Common stock acquired by:
Employee stock ownership plan ...................... (5,924)
Bank recognition plan .............................. (9)
Total stockholders' equity ........................... 343,512
-------
Total capitalization .................................$413,573
========
(1) This item reflects the Capital Securities. The Trust is a
wholly owned subsidiary of the Corporation and holds the
Junior Subordinated Debentures as its sole asset.
26
<PAGE>
SELECTED CONSOLIDATED FINANCIAL INFORMATION
The following table presents selected consolidated
financial information from the Corporation's audited financial
statements as of and for the five years ended December 31, 1996.
The financial data as of and for the nine months ended September
30, 1997 and 1996 has been derived from the Corporation's
unaudited quarterly financial statements, which, in the opinion
of management, include all adjustments (consisting of normal
recurring accruals) necessary for a fair presentation of the
Corporation's results of operations and financial position. The
results of operations for the nine months ended September 30,
1997 are not necessarily indicative of results to be anticipated
for the entire year. The table should be read in conjunction with
the consolidated financial statements and the related notes
incorporated herein by reference.
Nine Months Ended
September 30, Year Ended December 31,
------------------- -----------------------
1997 1996 1996 1995
---- ---- ---- ----
(Dollars in thousands, except per share data)
Selected Financial
Condition Data
Total assets $3,716,954 $3,509,729 $3,506,136 $2,970,170
Loans
receivable 2,716,682 2,515,043 2,566,364 1,946,601
Securities
available
for sale 722,245 635,619 617,943 656,784
Investment
securities 74,608 125,586 109,607 153,740
Deposits 2,968,626 2,998,377 3,013,129 2,558,288
Borrowed funds 238,554 108,032 72,407 1,290
Total stockholders'
equity 343,512 314,038 319,125 323,182
Selected Operating
Data
Interest income $197,570 $184,337 $248,526 $212,502
Interest expense 96,567 90,825 122,885 104,015
------------------------------------------------
Net interest income 101,003 93,512 125,641 108,487
Provision for loan
losses 5,400 4,275 5,775 4,500
-----------------------------------------------
Net interest income
after provision
for loan losses 95,603 89,237 119,866 103,987
Net security
transactions 274 5 8 (1,198)
Other noninterest
income 9,781 9,007 12,146 10,646
Noninterest expense 61,134 69,948 90,303 65,804
------------------------------------------------
Income before
income taxes and
cumulative net
effect of changes
in accounting
principles 44,524 28,301 41,717 47,631
Income tax expense 16,388 11,107 15,510 18,348
------------------------------------------------
Income before
cumulative net
effect of changes
in accounting
principles 28,136 17,194 26,207 29,283
Cumulative net
effect of changes
in accounting
principles -- -- -- --
------------------------------------------------
Net income 28,136 17,194 26,207 29,283
Earnings per share:
(1) Primary 2.03 1.20 1.84 1.94
Fully diluted 2.02 1.20 1.83 1.93
Other Selected
Financial Data
Book value per
share (1) $26.69 $23.97 $24.72 $23.37
Tangible book
value per
share (1) 23.51 20.58 21.35 22.05
Loan originations
(including
individual loans
purchased) 468,725 484,530 638,423 459,198
Return on average
stockholders'
equity ("ROE") 11.46% 7.18% 8.20% 9.09%
Return on average
assets ("ROA") 1.06 0.69 0.77 0.99
Stockholders' equity
to total assets 9.24 8.95 9.10 10.88
Net interest spread 3.54 3.52 3.52 3.40
Net interest margin 3.99 3.92 3.91 3.84
Year Ended December 31,
----------------------------
1994 1993 1992
---- ---- ----
(Dollars in thousands, except per share data)
Selected Financial
Condition Data
Total assets $2,963,843 $2,773,223 $2,482,851
Loans
receivable 1,788,400 1,540,464 1,492,618
Securities
available
for sale 167,024 51,256 49,766
Investment
securities 801,247 962,204 720,125
Deposits 2,541,962 2,381,714 2,098,891
Borrowed funds 15,300 4,200 7,600
Total stockholders'
equity 316,789 313,283 309,909
Selected Operating
Data
Interest income $186,804 $183,986 $190,699
Interest expense 82,092 86,416 104,541
-----------------------------------
Net interest income 104,712 97,570 86,158
Provision for loan
losses 4,500 4,200 4,100
-----------------------------------
Net interest income
after provision
for loan losses 100,212 93,370 82,058
Net security
transactions 14 130 278
Other noninterest
income 10,077 9,905 9,336
Noninterest expense 61,833 59,718 55,236
-----------------------------------
Income before
income taxes and
cumulative net
effect of changes
in accounting
principles 48,470 43,687 36,436
Income tax expense 19,898 18,289 14,740
-----------------------------------
Income before
cumulative net
effect of changes
in accounting
principles 28,572 25,398 21,696
Cumulative net
effect of changes
in accounting
principles -- 37 --
----------------------------------
Net income 28,572 25,435 21,696
Earnings per share:
(1) Primary 1.77 1.46 0.93(2)
Fully diluted 1.77 1.45 0.92(2)
Other Selected
Financial Data
Book value per
share (1) $21.27 $19.48 $17.48
Tangible book
value per
share (1) 19.98 19.15 17.48
Loan originations
(including
individual loans
purchased) 556,785 407,125 331,309
Return on average
stockholders'
equity ("ROE") 9.11% 8.23% 8.02%
Return on average
assets ("ROA") 1.02 0.92 0.88
Stockholders' equity
to total assets 10.69 11.30 12.48
Net interest spread 3.49 3.28 3.09
Net interest margin 3.87 3.69 3.61
27
<PAGE>
Nine Months Ended
September 30, Year Ended December 31,
------------------- -----------------------
1997 1996 1996 1995
---- ---- ---- ----
(Dollars in thousands, except per share data)
Efficiency ratio 50.56 54.41 54.32 52.91
Nonperforming loans
to loans receivable 1.17 1.37 1.16 1.19
Nonperforming assets
to total assets 0.94 1.15 0.96 0.91
Allowance for loan
losses to:
Loans receivable 0.97 1.12 0.94 0.82
Nonperforming loans 83.43 81.74 80.88 68.88
Core net income (3) $27,978 $23,571 $32,584 $30,013
Earnings per share
based on core
net income:(1)(3)
Primary 2.01 1.65 2.29 1.99
Fully diluted 2.01 1.64 2.28 1.98
ROE based on
core net
income(3) 11.39% 9.85% 10.20% 9.32%
ROA based on core
net income(3) 1.05 0.94 0.96 1.01
Noninterest expense
to average
assets (4) 2.25 2.37 2.36 2.22
Noninterest expense
less other
noninterest
income to average
assets (4) 1.88 2.01 2.00 1.86
Year Ended December 31,
----------------------------
1994 1993 1992
---- ---- ----
(Dollars in thousands, except per share data)
Efficiency ratio 51.99 53.97 56.73
Nonperforming loans
to loans receivable 1.14 1.49 1.60
Nonperforming assets
to total assets 0.81 0.99 1.15
Allowance for loan
losses to:
Loans receivable 0.87 0.84 0.80
Nonperforming loans 76.39 56.67 49.77
Core net income (3) $28,572 $25,435 $21,696
Earnings per share
based on core
net income:(1)(3)
Primary 1.77 1.46 0.93(2)
Fully diluted 1.77 1.45 0.92(2)
ROE based on
core net
income(3) 9.11% 8.23% 8.02%
ROA based on core
net income(3) 1.02 0.92 0.88
Noninterest expense
to average
assets (4) 2.20 2.17 2.24
Noninterest expense
less other
noninterest
income to average
assets (4) 1.84 1.81 1.86
(1) Adjusted to reflect the 6-for-5 stock dividend paid on April 1, 1996.
(2) 1992 earnings per share are calculated for the period April 1, 1992
(the date of conversion from mutual to stock form) through December 31,
1992.
(3) Core net income excludes the net after-tax effect of the
$6.4 million special assessment to recapitalize the SAIF in
September 1996, the $0.7 million write-off of the
Corporation's capital investment in Nationar in March 1995
and the $0.2 million recovery of the Corporation's capital
investment in Nationar in April 1997.
(4) Noninterest expense excludes the pre-tax SAIF special assessment,
amounting to $10.4 million, and $1.5 million in capital securities
expense in 1997.
28
<PAGE>
ALBANK CAPITAL TRUST I
The Trust is a statutory business trust created under
Delaware law pursuant to the filing of a certificate of trust
with the Delaware Secretary of State on April 3, 1997. The Trust
exists for the exclusive purposes of (i) issuing and selling the
Trust Securities, (ii) using the proceeds from the sale of Trust
Securities to acquire the Junior Subordinated Debentures and
(iii) engaging in only those other activities necessary,
advisable or incidental thereto (such as registering the transfer
of the Trust Securities). The Junior Subordinated Debentures are
the sole assets of the Trust, and payments under the Junior
Subordinated Debentures will be the sole revenues of the Trust.
All of the Common Securities are owned by the Corporation. The
Common Securities rank pari passu, and payments will be made
thereon pro rata, with the Capital Securities, except that upon
the occurrence and continuance of an event of default under the
Trust Agreement resulting from a Debenture Event of Default, the
rights of the Corporation as holder of the Common Securities to
payments in respect of Distributions and payments upon
liquidation, redemption or otherwise will be subordinated to the
rights of the holders of the Capital Securities. See "Description
of Capital Securities--Subordination of Common Securities." The
Corporation acquired Common Securities in a Liquidation Amount
equal to at least 3% of the total capital of the Trust. The Trust
has a term of 31 years, but may dissolve earlier as provided in
the Trust Agreement. The trustees for the Trust are The Chase
Manhattan Bank, as the Property Trustee (the "Property Trustee"),
and Chase Manhattan Bank Delaware, as the Delaware Trustee (the
"Delaware Trustee" and together with the Property Trustee, the
"Issuer Trustees"). In addition, three individuals who are
employees or officers of or affiliated with the Corporation act
as administrators with respect to the Trust (the
"Administrators"). The Chase Manhattan Bank, as Property Trustee,
acts as sole indenture trustee under the Trust Agreement. The
Chase Manhattan Bank also acts as indenture trustee under the
Guarantee and the Indenture. See "Description of Guarantee" and
"Description of Junior Subordinated Debentures." Subject to the
limitations contained in the Trust Agreement, the Trust's
business and affairs are conducted by the Property Trustee. The
Issuer Trustees and the Administrators are each appointed by the
Corporation as the holder of the Common Securities. The holder of
the Common Securities or, if an Event of Default under the Trust
Agreement has occurred and is continuing, the holders of a
majority in Liquidation Amount of the Capital Securities are
entitled to appoint, remove or replace the Property Trustee
and/or the Delaware Trustee. In no event will the holders of the
Capital Securities have the right to appoint, remove or replace
the Administrators; such voting rights are vested exclusively in
the holder of the Common Securities. The duties and obligations
of each Issuer Trustee are governed by the Trust Agreement. The
Corporation, as issuer of the Junior Subordinated Debentures, has
agreed to pay all fees, expenses, debts and obligations (other
than the Trust's obligations to holders of Trust Securities with
respect to payments of principal, interest and premium, if any)
related to the Trust and the offering of the Capital Securities
and will pay, directly or indirectly, all ongoing costs, expenses
and liabilities of the Trust. The principal executive office of
the Trust is c/o ALBANK Financial Corporation, 10 North Pearl
Street, Albany, New York 12207.
THE EXCHANGE OFFER
Purpose and Effect of Exchange Offer
In connection with the sale of the Old Capital Securities,
the Corporation and the Trust entered into the Registration
Rights Agreement with the Initial Purchaser pursuant to which the
Corporation and the Trust agreed to file and to use their best
efforts to cause to be declared effective by the Commission a
registration statement with respect to the exchange of the Old
Capital Securities for capital securities which have been
registered under the Securities Act with terms identical in all
material respects to the terms of the Old Capital Securities
(except as described below). A copy of the Registration Rights
Agreement has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part.
The Exchange Offer is being made to satisfy the contractual
obligations of the Corporation and the Trust under the
Registration Rights Agreement. The form and terms of the New
Capital Securities are the same in all material respects as the
form and terms of the Old Capital Securities, except that the New
Capital Securities (i) have been registered under the Securities
Act and therefore will not be subject to certain restrictions on
transfer applicable to the Old Capital Securities and (ii) will
not provide for any increase in the distribution rate thereon.
29
<PAGE>
The Old Capital Securities provide, among other things, that if,
under certain circumstances as set forth in the Registration
Rights Agreement, the Exchange Offer is not consummated within 35
days of the effectiveness of the Registration Statement of which
this Prospectus is a part, the annual distribution rate borne by
the Old Capital Securities will increase by 0.50% until the
Exchange Offer is consummated. Upon consummation of the Exchange
Offer, holders of Old Capital Securities that remain outstanding
will not be entitled to any increase in the distribution rate
thereon or any further registration rights under the Registration
Rights Agreement, except under limited circumstances. See "Risk
Factors--Consequences of a Failure to Exchange Old Capital
Securities" and "Description of Capital Securities."
The Exchange Offer is not being made to, nor will the Trust
or the Corporation accept tenders for exchange from, holders of
Old Capital Securities in any jurisdiction in which the Exchange
Offer or the acceptance thereof would not be in compliance with
the securities or blue sky laws of such jurisdiction.
Unless the context requires otherwise, the term "holder"
with respect to the Exchange Offer means any person in whose name
the Old Capital Securities are registered on the books of the
Trust or any other person who has obtained a properly completed
bond power from the registered holder, or any participant in The
Depository Trust Company ("DTC") system whose name appears on a
security position listing as the holder of Old Capital Securities
(which, for purposes of the Exchange Offer, include beneficial
interests in the Old Capital Securities held by direct or
indirect participants in DTC and Old Capital Securities held in
definitive form).
Pursuant to the Exchange Offer, the Corporation will
exchange as soon as practicable after the date hereof all of the
Old Junior Subordinated Debentures, of which $51,547,000
aggregate principal amount is outstanding, for a like aggregate
principal amount of the New Junior Subordinated Debentures. The
New Guarantee and the New Junior Subordinated Debentures have
been registered, to the extent required to be registered, under
the Securities Act.
Terms of Exchange
The Trust hereby offers, upon the terms and subject to the
conditions set forth in this Prospectus and in the accompanying
Letter of Transmittal, to exchange up to $50,000,000 aggregate
liquidation amount of New Capital Securities for a like aggregate
liquidation amount of Old Capital Securities properly tendered on
or prior to the Expiration Date and not properly withdrawn in
accordance with the procedures described below. The Trust will
issue, promptly after the Expiration Date, an aggregate
liquidation amount of up to $50,000,000 of New Capital Securities
in exchange for a like aggregate liquidation amount of
outstanding Old Capital Securities tendered and accepted in
connection with the Exchange Offer. Holders may tender their Old
Capital Securities in whole or in part in a liquidation amount of
not less than $100,000 or any integral multiple of $1,000 in
excess thereof, provided that if any Old Capital Securities are
tendered for exchange in part, the untendered liquidation amount
must be $100,000 or any integral multiple of $1,000 in excess
thereof.
The Exchange Offer is not conditioned upon any minimum
liquidation amount of Old Capital Securities being tendered. As
of the date of this Prospectus, $50,000,000 aggregate liquidation
amount of the Old Capital Securities is outstanding.
Holders of Old Capital Securities do not have any appraisal
or dissenters' rights in connection with the Exchange Offer. Old
Capital Securities which are not tendered for, or are tendered
but not accepted in connection with, the Exchange Offer will
remain outstanding and be entitled to the benefits of the Trust
Agreement, but will not be entitled to any further registration
rights under the Registration Rights Agreement, except under
limited circumstances. See "Risk Factors--Consequences of a
Failure to Exchange Old Capital Securities" and "Description of
Capital Securities."
If any tendered Old Capital Securities are not accepted for
exchange because of an invalid tender, the occurrence of certain
other events set forth herein or otherwise, certificates for any
such unaccepted Old Capital Securities will be returned, without
expense, to the tendering holder thereof promptly after the
Expiration Date.
30
<PAGE>
Holders who tender Old Capital Securities in connection
with this Exchange Offer will not be required to pay brokerage
commissions or fees or, subject to the instructions in the Letter
of Transmittal, transfer taxes with respect to the exchange of
Old Capital Securities in connection with the Exchange Offer. The
Corporation will pay all charges and expenses, other than certain
applicable taxes described below, in connection with the Exchange
Offer. See "--Fees and Expenses."
NEITHER THE CORPORATION, THE BOARD OF DIRECTORS OF THE
CORPORATION, THE TRUST, NOR ANY ADMINISTRATOR OR TRUSTEE OF THE
TRUST MAKES ANY RECOMMENDATION TO HOLDERS OF OLD CAPITAL
SECURITIES AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ALL
OR ANY PORTION OF THEIR OLD CAPITAL SECURITIES PURSUANT TO THE
EXCHANGE OFFER. IN ADDITION, NO ONE HAS BEEN AUTHORIZED TO MAKE
ANY SUCH RECOMMENDATION. HOLDERS OF OLD CAPITAL SECURITIES MUST
MAKE THEIR OWN DECISION WHETHER TO TENDER PURSUANT TO THE
EXCHANGE OFFER AND, IF SO, THE AGGREGATE AMOUNT OF OLD CAPITAL
SECURITIES TO TENDER AFTER READING THIS PROSPECTUS AND THE LETTER
OF TRANSMITTAL AND CONSULTING WITH THEIR ADVISERS, IF ANY, BASED
ON THEIR OWN FINANCIAL POSITION AND REQUIREMENTS.
Expiration Date; Extension; Amendments
The term "Expiration Date" means 5:00 p.m., New York City
time, on ________, 1997, unless the Exchange Offer is extended by
the Corporation and the Trust (in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange
Offer is extended).
The Corporation and the Trust expressly reserve the right
in their sole discretion, subject to applicable law, at any time
and from time to time, (i) to delay the acceptance of the Old
Capital Securities for exchange, (ii) to terminate the Exchange
Offer (whether or not any Old Capital Securities have theretofore
been accepted for exchange) if the Corporation and the Trust
determine, in their sole discretion, that any of the events
referred to under "--Conditions to the Exchange Offer" have
occurred, (iii) to extend the Expiration Date of the Exchange
Offer, subject, however, to the right of holders of Old Capital
Securities to withdraw their tendered Old Capital Securities as
described under "--Withdrawal Rights," and (iv) to waive any
condition or otherwise amend the terms of the Exchange Offer in
any respect. If the Exchange Offer is amended in a manner
determined by the Corporation and the Trust to constitute a
material change, or if the Corporation and the Trust waive a
material condition of the Exchange Offer, the Corporation and the
Trust will promptly disclose such amendment by means of an
amended or supplemented Prospectus that will be distributed to
the registered holders of the Old Capital Securities, and the
Corporation and the Trust will extend the Exchange Offer to the
extent required by Rule 14e-1 under the Exchange Act.
Any such delay in acceptance, extension, termination or
amendment will be followed promptly by oral (promptly confirmed
in writing) or written notice thereof to the Exchange Agent and
by making a public announcement thereof, and such announcement in
the case of an extension will be made no later than 9:00 a.m.,
New York City time, on the next business day after the previously
scheduled Expiration Date. Without limiting the manner in which
the Corporation and the Trust may choose to make any public
announcement and subject to applicable law, the Corporation and
the Trust shall have no obligation to publish, advertise or
otherwise communicate any such public announcement other than by
issuing a release to an appropriate news agency.
Acceptance for Exchange and Issuance of New Capital Securities
Upon the terms and subject to the conditions of the
Exchange Offer, the Trust will exchange, and will issue to the
Exchange Agent, New Capital Securities for Old Capital Securities
validly tendered and not withdrawn (pursuant to the withdrawal
rights described under "--Withdrawal Rights") promptly after the
Expiration Date.
In all cases, delivery of New Capital Securities in
exchange for Old Capital Securities tendered and accepted for
exchange pursuant to the Exchange Offer will be made only after
timely receipt by the Exchange
31
<PAGE>
Agent of (i) Old Capital Securities or a book-entry
confirmation of a book-entry transfer of Old Capital Securities
into the Exchange Agent's account at DTC, (ii) the Letter of
Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees, or, in the case
of a book-entry transfer, an Agent's Message in lieu of the
Letter of Transmittal, and (iii) any other documents required by
the Letter of Transmittal.
The term "book-entry confirmation" means a timely
confirmation of a book-entry transfer of Old Capital Securities
into the Exchange Agent's account at DTC. The term "Agent's
Message" means a message, transmitted by DTC to and received by
the Exchange Agent and forming a part of a book-entry
confirmation, which states that DTC has received an express
acknowledgment from the tendering Participant (as defined
herein), which acknowledgment states that such Participant has
received and agrees to be bound by the Letter of Transmittal and
that the Trust and the Corporation may enforce such Letter of
Transmittal against such Participant.
Subject to the terms and conditions of the Exchange Offer,
the Corporation and the Trust will be deemed to have accepted for
exchange, and thereby exchanged, Old Capital Securities validly
tendered and not withdrawn as, if and when the Trust gives oral
(promptly confirmed in writing) or written notice to the Exchange
Agent of the Corporation's and the Trust's acceptance of such Old
Capital Securities for exchange pursuant to the Exchange Offer.
The Exchange Agent will act as agent for the Corporation and the
Trust for the purpose of receiving tenders of Old Capital
Securities, Letters of Transmittal and related documents, and as
agent for tendering holders for the purpose of receiving Old
Capital Securities, Letters of Transmittal and related documents
and transmitting New Capital Securities to validly tendering
holders. Such exchange will be made promptly after the Expiration
Date. If for any reason whatsoever acceptance for exchange or the
exchange of any Old Capital Securities tendered pursuant to the
Exchange Offer is delayed (whether before or after the
Corporation's and the Trust's acceptance for exchange of Old
Capital Securities) or the Corporation and the Trust extend the
Exchange Offer or are unable to accept for exchange or exchange
Old Capital Securities tendered pursuant to the Exchange Offer,
then, without prejudice to the Corporation's and the Trust's
rights set forth herein, the Exchange Agent may, nevertheless, on
behalf of the Corporation and the Trust and subject to Rule
14e-1(c) under the Exchange Act, retain tendered Old Capital
Securities and such Old Capital Securities may not be withdrawn
except to the extent tendering holders are entitled to withdrawal
rights as described under "--Withdrawal Rights."
Pursuant to the Letter of Transmittal or Agent's Message in
lieu thereof, a holder of Old Capital Securities will warrant and
agree that it has full power and authority to tender, exchange,
sell, assign and transfer Old Capital Securities, that the Trust
will acquire good, marketable and unencumbered title to the
tendered Old Capital Securities free and clear of all liens,
restrictions, charges and encumbrances, and the Old Capital
Securities tendered for exchange are not subject to any adverse
claims or proxies. The holder also will warrant and agree that it
will, upon request, execute and deliver any additional documents
deemed by the Corporation, the Trust or the Exchange Agent to be
necessary or desirable to complete the exchange, sale, assignment
and transfer of the Old Capital Securities tendered pursuant to
the Exchange Offer.
Procedures for Tendering Old Capital Securities
Valid Tender. Except as set forth below, in order for Old
Capital Securities to be validly tendered pursuant to the
Exchange Offer, a properly completed and duly executed Letter of
Transmittal (or facsimile thereof), with any required signature
guarantees, or, in the case of a book-entry transfer, an Agent's
Message in lieu of the Letter of Transmittal, and any other
required documents, must be received by the Exchange Agent at its
address set forth under "--Exchange Agent" on or prior to the
Expiration Date and (i) tendered Old Capital Securities must be
received by the Exchange Agent, or (ii) such Old Capital
Securities must be tendered pursuant to the procedures for
book-entry transfer set forth below and a book-entry
confirmation, including an Agent's Message if the tendering
holder has not delivered a Letter of Transmittal, must be
received by the Exchange Agent, in each case on or prior to the
Expiration Date, or (iii) the guaranteed delivery procedures set
forth below must be complied with.
32
<PAGE>
If less than all of the Old Capital Securities are tendered,
a tendering holder should fill in the amount of Old Capital
Securities being tendered in the appropriate box on the Letter of
Transmittal or so indicate in an Agent's Message in lieu of the
Letter of Transmittal. The entire amount of Old Capital
Securities delivered to the Exchange Agent will be deemed to have
been tendered unless otherwise indicated. See "--Terms of
Exchange."
THE METHOD OF DELIVERY OF CERTIFICATES, THE LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER, AND DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF
DELIVERY IS BY MAIL, THEN REGISTERED MAIL, RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Book-Entry Transfer. The Exchange Agent will establish an
account with respect to the Old Capital Securities at DTC for
purposes of the Exchange Offer within two business days after the
date of this Prospectus. Any financial institution that is a
Participant in DTC's book-entry transfer facility system may make
a book-entry delivery of the Old Capital Securities by causing
DTC to transfer such Old Capital Securities into the Exchange
Agent's account at DTC in accordance with DTC's procedures for
transfers. However, although delivery of Old Capital Securities
may be effected through book-entry transfer into the Exchange
Agent's account at DTC, the Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required
signature guarantees, or an Agent's Message in lieu of the Letter
of Transmittal, and any other required documents, must in any
case be delivered to and received by the Exchange Agent at its
address set forth under "--Exchange Agent" on or prior to the
Expiration Date, or the guaranteed delivery procedures set forth
below must be complied with.
DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
Signature Guarantees. Certificates for the Old Capital
Securities need not be endorsed and signature guarantees on the
Letter of Transmittal are unnecessary unless (i) a certificate
for the Old Capital Securities is registered in a name other than
that of the person surrendering the certificate or (ii) such
registered holder completes the box entitled "Special Issuance
Instructions" or "Special Delivery Instructions" in the Letter of
Transmittal. In the case of (i) or (ii) above, such certificates
for Old Capital Securities must be duly endorsed or accompanied
by a properly executed bond power, with the endorsement or
signature on the bond power and on the Letter of Transmittal
guaranteed by a firm or other entity identified in Rule 17Ad-15
under the Exchange Act as an "eligible guarantor institution,"
including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker or dealer or
government securities broker or dealer; (iii) a credit union;
(iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that
is a participant in a Securities Transfer Association (an
"Eligible Institution"), unless surrendered on behalf of such
Eligible Institution. See Instruction 1 to the Letter of
Transmittal.
Guaranteed Delivery. If a holder desires to tender Old
Capital Securities pursuant to the Exchange Offer and the
certificates for such Old Capital Securities are not immediately
available or time will not permit all required documents to reach
the Exchange Agent on or before the Expiration Date, or the
procedures for book-entry transfer cannot be completed on a
timely basis, such Old Capital Securities may nevertheless be
tendered, provided that all of the following guaranteed delivery
procedures are complied with:
(i) such tenders are made by or through an Eligible
Institution;
(ii) a properly completed and duly executed Notice of
Guaranteed Delivery, substantially in the form accompanying
the Letter of Transmittal, is received by the Exchange
Agent, as provided below, on or prior to the Expiration
Date; and
(iii) the certificates (or book-entry confirmation)
representing all tendered Old Capital Securities, in proper
form for transfer, together with a properly completed and
duly executed Letter of Transmittal (or facsimile thereof)
or, in the case of a book-entry transfer, an Agent's
Message in lieu
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thereof, with any required signature guarantees and any other
documents required by the Letter of Transmittal, are received by
the Exchange Agent within three New York Stock Exchange trading
days after the date of execution of such Notice of Guaranteed
Delivery.
The Notice of Guaranteed Delivery may be delivered by hand,
or transmitted by facsimile or mail, to the Exchange Agent, and
must include a guarantee by an Eligible Institution in the form
set forth in such notice.
Notwithstanding any other provisions hereof, the delivery
of New Capital Securities in exchange for Old Capital Securities
tendered and accepted for exchange pursuant to the Exchange Offer
will in all cases be made only after timely receipt by the
Exchange Agent of such Old Capital Securities, or of a book-entry
confirmation with respect to such Old Capital Securities, and a
properly completed and duly executed Letter of Transmittal (or
facsimile thereof) or, in the case of a book-entry transfer, an
Agent's Message in lieu thereof, together with any required
signature guarantees and any other documents required by the
Letter of Transmittal. Accordingly the delivery of New Capital
Securities might not be made to all tendering holders at the same
time, and will depend upon when Old Capital Securities,
book-entry confirmations with respect to Old Capital Securities
and other required documents are received by the Exchange Agent.
The Corporation's and the Trust's acceptance for exchange
of Old Capital Securities tendered pursuant to any of the
procedures described above will constitute a binding agreement
among the tendering holder, the Corporation and the Trust upon
the terms and conditions of the Exchange Offer.
Determination of Validity. All questions as to the form of
documents, validity, eligibility (including time of receipt) and
acceptance for exchange of any tendered Old Capital Securities
will be determined by the Corporation and the Trust, in their
sole discretion, whose determination shall be final and binding
on all parties. The Corporation and the Trust reserve the
absolute right, in their sole discretion, to reject any and all
tenders determined by them not to be in proper form or the
acceptance of which may, in the view of counsel to the
Corporation or the Trust, be unlawful. The Corporation and the
Trust also reserve the absolute right, subject to applicable law,
to waive any of the conditions of the Exchange Offer as set forth
under "--Conditions to the Exchange Offer" or any condition or
irregularity in any tender of Old Capital Securities of any
particular holder whether or not similar conditions or
irregularities are waived in the case of other holders.
The interpretation by the Corporation and the Trust of the
terms and conditions of the Exchange Offer (including the Letter
of Transmittal and the instructions thereto) will be final and
binding. No tender of Old Capital Securities will be deemed to
have been validly made until all irregularities with respect to
such tender have been cured or waived. Neither the Corporation,
the Trust, any affiliates or assigns of the Corporation or the
Trust, the Exchange Agent nor any other person shall be under any
duty to give any notification of any irregularities in tenders or
incur any liability for failure to give any such notification.
If any Letter of Transmittal, endorsement, bond power,
power of attorney or any other document required by the Letter of
Transmittal is signed by a trustee, executor, administrator,
guardian, attorney-in-fact, officer of a corporation or other
person acting in a fiduciary or representative capacity, such
person should so indicate when signing, and, unless waived by the
Trust, proper evidence satisfactory to the Corporation and the
Trust, in their sole discretion, of such person's authority to so
act must be submitted.
A beneficial owner of Old Capital Securities that are held
by or registered in the name of a broker, dealer, commercial
bank, trust company or other nominee or custodian is urged to
contact such entity promptly if such beneficial holder wishes to
participate in the Exchange Offer.
Resales of New Capital Securities
Based on existing interpretations by the staff of the
Commission set forth in no-action letters to third parties, and
subject to the immediately following sentence, the Corporation
and the Trust believe that New Securities issued pursuant to the
Exchange Offer in exchange for Old Securities may be offered for
resale, resold and otherwise transferred by a holder thereof
without further compliance with the registration and prospectus
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delivery requirements of the Securities Act, provided that such
New Securities are acquired in the ordinary course
of such holder's business and that such holder is not
participating, and has no arrangement or understanding with any
person to participate, in a distribution (within the meaning of
the Securities Act) of such New Securities. However, any holder
of Old Capital Securities who is an "affiliate" of either the
Corporation or the Trust, a broker-dealer that acquires the Old
Capital Securities in a transaction other than a part of its
market-making activities or other trading activities or other
holder who intends to participate in the Exchange Offer for the
purpose of distributing New Capital Securities (i) will not be
able to rely on the interpretations by the staff of the
Commission set forth in the above-mentioned interpretative
letters, (ii) will not be able to tender such Old Capital
Securities in the Exchange Offer, and (iii) must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with any sale or other transfer of
such Old Capital Securities unless such sale is made pursuant to
an exemption from such requirements. Neither the Corporation nor
the Trust sought its own no-action letter and there can be no
assurance that the staff of the Commission would make a similar
determination with respect to the Exchange Offer as it has in
such no-action letters to third parties.
Each holder of Old Capital Securities (other than a
broker-dealer) who wishes to exchange Old Capital Securities for
New Capital Securities in the Exchange Offer will be required to
represent that (i) it is not an "affiliate" of the Corporation or
the Trust, (ii) any New Capital Securities to be received by it
are being acquired in the ordinary course of its business and
(iii) it has no arrangement or understanding with any person to
participate in a distribution (within the meaning of the
Securities Act) of such New Capital Securities. The Letter of
Transmittal contains the foregoing representations. In addition,
the Corporation and the Trust may require such holder, as a
condition to such holder's eligibility to participate in the
Exchange Offer, to furnish to the Corporation and the Trust (or
an agent thereof) in writing information as to the number of
"beneficial owners" (within the meaning of Rule 13d-3 under the
Exchange Act) on behalf of whom such holder holds the Old Capital
Securities to be exchanged in the Exchange Offer. Each
broker-dealer that receives New Capital Securities pursuant to
the Exchange Offer in exchange for Old Capital Securities
acquired for its own account as a result of market-making or
other trading activities (an "Exchanging Dealer") must
acknowledge by execution of the Letter of Transmittal or, in the
case of a book-entry transfer, delivery of an Agent's Message
that it acquired the Old Capital Securities for its own account
as the result of market-making activities or other trading
activities and must agree that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with
any resale of such New Capital Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a
prospectus, an Exchanging Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
Based on the position taken by the staff of the Commission in the
no-action letters referred to above, the Corporation and the
Trust believe that Exchanging Dealers may fulfill their
prospectus delivery requirements with respect to the New Capital
Securities received upon exchange of such Old Capital Securities
(other than Old Capital Securities which represent an unsold
allotment from the original sale of the Old Capital Securities)
with a prospectus meeting the requirements of the Securities Act,
which may be the prospectus prepared for an exchange offer so
long as it contains a description of the plan of distribution
with respect to the resale of such New Capital Securities.
Subject to certain provisions set forth in the Registration
Rights Agreement and to the limitations set out herein, the
Corporation and the Trust have agreed that this Prospectus, as it
may be amended or supplemented from time to time, may be used by
an Exchanging Dealer in connection with resales of such New
Capital Securities for a period ending one year after the
Expiration Date (or longer, if required by the Registration
Rights Agreement). See "Plan of Distribution." However, an
Exchanging Dealer that intends to use this Prospectus in
connection with the resale of New Capital Securities received in
exchange for Old Capital Securities pursuant to the Exchange
Offer must notify the Corporation or the Trust, or cause the
Corporation or the Trust to be notified, on or prior to the
Expiration Date, that it is an Exchanging Dealer. Such notice may
be given in the space provided for that purpose in the Letter of
Transmittal or may be delivered to the Exchange Agent at the
address set forth herein under "--Exchange Agent." Any person,
including any Exchanging Dealer, who is an "affiliate" of the
Corporation or the Trust may not rely on such no-action letters
and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any resale
transaction.
In that regard, each Exchanging Dealer who surrenders Old
Capital Securities pursuant to the Exchange Offer will be deemed
to have agreed, by execution of the Letter of Transmittal or
delivery of an Agent's Message in lieu thereof, that, upon
receipt of notice from the Corporation or the Trust of the
occurrence of any event or the
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discovery of any fact which makes any statement contained or
incorporated by reference in this Prospectus untrue in any
material respect or which causes this Prospectus to omit to state
a material fact necessary in order to make the statements
contained or incorporated by reference herein, in light of the
circumstances under which they were made, not misleading or of
the occurrence of certain other events specified in the
Registration Rights Agreement, such Exchanging Dealer will
suspend the sale of New Securities pursuant to this Prospectus
until the Corporation or the Trust has amended or supplemented
this Prospectus to correct such misstatement or omission and has
furnished copies of the amended or supplemented Prospectus to
such Exchanging Dealer or the Corporation or the Trust has given
notice that the sale of the New Securities may be resumed, as the
case may be. If the Corporation or the Trust gives such notice to
suspend the sale of the New Capital Securities (or the New
Guarantee or the New Junior Subordinated Debentures, as
applicable), it shall extend the one-year period referred to
above during which Exchanging Dealers are entitled to use this
Prospectus in connection with the resale of New Capital
Securities by the number of days during the period from and
including the date of the giving of such notice to and including
the date when Exchanging Dealers shall have received copies of
the amended or supplemented Prospectus necessary to permit
resales of the New Capital Securities or to and including the
date on which the Corporation or the Trust has given notice that
the sale of the New Capital Securities (or the New Guarantee or
the New Junior Subordinated Debentures, as applicable) may be
resumed, as the case may be.
Withdrawal Rights
Except as otherwise provided herein, tenders of Old Capital
Securities may be withdrawn at any time on or prior to the
Expiration Date.
In order for a withdrawal to be effective a written,
telegraphic, telex or facsimile transmission of such notice of
withdrawal must be timely received by the Exchange Agent at its
address set forth under "--Exchange Agent" on or prior to the
Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Old Capital Securities to be
withdrawn, the aggregate liquidation amount of Old Capital
Securities to be withdrawn and (if certificates for such Old
Capital Securities have been tendered) the name of the registered
holder of the Old Capital Securities as set forth on the Old
Capital Securities, if different from that of the person who
tendered such Old Capital Securities. If Old Capital Securities
have been delivered or otherwise identified to the Exchange
Agent, then prior to the physical release of such Old Capital
Securities, the tendering holder must submit the certificate
numbers shown on the particular Old Capital Securities to be
withdrawn and the signature on the notice of withdrawal must be
guaranteed by an Eligible Institution, except in the case of Old
Capital Securities tendered for the account of an Eligible
Institution. If Old Capital Securities have been tendered
pursuant to the procedures for book-entry transfers set forth in
"--Procedures for Tendering Old Capital Securities," the notice
of withdrawal must specify the name and number of the account at
DTC to be credited with the withdrawal of Old Capital Securities,
in which case a notice of withdrawal will be effective if
delivered to the Exchange Agent by written, telegraphic, telex or
facsimile transmission. Withdrawals of tenders of Old Capital
Securities may not be rescinded. Old Capital Securities properly
withdrawn will not be deemed validly tendered for purposes of the
Exchange Offer, but may be retendered at any subsequent time on
or prior to the Expiration Date by following any of the
procedures described above under "--Procedures for Tendering Old
Capital Securities."
All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be
determined by the Corporation and the Trust, in their sole
discretion, whose determination shall be final and binding on all
parties. Neither the Corporation, the Trust, any affiliates or
assigns of the Corporation or the Trust, the Exchange Agent nor
any other person shall be under any duty to give notification of
any irregularities in any notice of withdrawal or incur any
liability for failure to give any such notification. Any Old
Capital Securities which have been tendered but which are
withdrawn will be returned to the holder thereof promptly after
withdrawal.
Distributions on New Capital Securities
Holders of Old Capital Securities whose Old Capital
Securities are accepted for exchange will not receive accumulated
distributions on such Old Capital Securities for any period from
and after the last Distribution Date
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with respect to such Old Capital Securities prior to the
original issue date of the New Capital Securities or, if no such
distributions have been made, will not receive any accumulated
distributions on such Old Capital Securities,and will be deemed
to have waived the right to receive any distributions on such Old
Capital Securities accumulated from and after such Distribution
Date or, if no such distributions have been made, from and after
June 6, 1997.
Conditions to the Exchange Offer
Notwithstanding any other provision of the Exchange Offer,
or any extension of the Exchange Offer, the Corporation and the
Trust will not be required to accept for exchange, or to
exchange, any Old Capital Securities for any New Capital
Securities, and, as described below, may terminate the Exchange
Offer (whether or not any Old Capital Securities have theretofore
been accepted for exchange) or may waive any conditions to or
amend the Exchange Offer, if (i) because of any change in law or
applicable interpretations thereof by the Commission, the
Corporation or the Trust determines, in its sole discretion, that
it is not permitted to effect the Exchange Offer, (ii) a stop
order shall have been issued by the Commission or any state
securities authority suspending the effectiveness of the
Registration Statement or proceedings shall have been initiated
or, to the knowledge of the Corporation or the Trust, threatened
for that purpose, or (iii) any governmental approval has not been
obtained, which approval the Corporation or the Trust shall, in
its sole discretion, deem necessary for the consummation of the
Exchange Offer.
If the Corporation and the Trust determine in their sole
discretion that any of the foregoing events have occurred, the
Corporation and the Trust may, subject to applicable law,
terminate the Exchange Offer (whether or not any Old Capital
Securities have theretofore been accepted for exchange) or may
waive any condition to the Exchange Offer or otherwise amend the
terms of the Exchange Offer in any respect. If such waiver or
amendment constitutes a material change to the Exchange Offer,
the Corporation and the Trust will promptly disclose such waiver
or amendment by means of an amended or supplemented Prospectus
that will be distributed to the registered holders of the Old
Capital Securities, and the Corporation and the Trust will extend
the Exchange Offer to the extent required by Rule 14e-1 under the
Exchange Act.
Exchange Agent
The Chase Manhattan Bank has been appointed as Exchange
Agent for the Exchange Offer. Delivery of the Letters of
Transmittal and any other required documents, questions, requests
for assistance and requests for additional copies of this
Prospectus or of the Letter of Transmittal should be directed to
the Exchange Agent as follows:
The Chase Manhattan Bank
55 Water Street
Room 234, North Building
New York, New York 10041
Attention: Carlos Esteves
Telephone: (212) 638-0828
Facsimile: (212) 638-7375/344-9367
Delivery to other than the above address or facsimile
number will not constitute a valid delivery.
Fees and Expenses
The Corporation has agreed to pay the Exchange Agent
reasonable and customary fees for its services and will reimburse
it for its reasonable and documented out-of-pocket expenses in
connection therewith. The Corporation will also pay brokerage
houses and other custodians, nominees and fiduciaries the
reasonable out-of-pocket expenses incurred by them in forwarding
copies of this Prospectus and related documents to the beneficial
owners of Old Capital Securities, and in handling or tendering
for their customers.
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Holders who tender their Old Capital Securities for exchange
will not be obligated to pay any transfer taxes in connection
therewith. If, however, New Capital Securities are to be
delivered to, or are to be issued in the name of, any person
other than the registered holder of the Old Capital Securities
tendered, or if a transfer tax is imposed for any reason other
than the exchange of Old Capital Securities in connection with
the Exchange Offer, then the amount of any such transfer taxes
(whether imposed on the registered holder or any other persons)
will be payable by the tendering holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted
with the Letter of Transmittal, the amount of such transfer taxes
will be billed to such tendering holder.
Neither the Corporation nor the Trust will make any payment
to brokers, dealers or others soliciting acceptance of the
Exchange Offer.
DESCRIPTION OF CAPITAL SECURITIES
Pursuant to the Trust Agreement, the Trust has issued the
Old Capital Securities and the Common Securities and will issue
the New Capital Securities pursuant to the Exchange Offer. The
Capital Securities represent undivided beneficial interests in
the assets of the Trust and the holders thereof are entitled to a
preference over the Common Securities in certain circumstances
with respect to Distributions and amounts payable on redemption
of the Trust Securities or liquidation of the Trust. See
"--Subordination of Common Securities." The Trust Agreement has
been qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act"). By its terms, the Trust Agreement
incorporates certain provisions of the Trust Indenture Act, and,
upon consummation of the Exchange Offer, the Trust Agreement will
be subject to and governed by the Trust Indenture Act. This
summary of certain provisions of the Capital Securities, the
Common Securities and the Trust Agreement does not purport to be
complete and is subject to, and is qualified in its entirety by
reference to, all of the provisions of the Trust Agreement (a
copy of which may be obtained from the Corporation or the Trust),
including the definitions therein of certain terms.
General
The Capital Securities are limited to $50,000,000 aggregate
Liquidation Amount at any one time outstanding. The New Capital
Securities will rank pari passu, and payments will be made
thereon pro rata, with the Old Capital Securities and the Common
Securities, except as described under "--Subordination of Common
Securities." Legal title to the Junior Subordinated Debentures is
held by the Property Trustee in trust for the benefit of the
holders of the Trust Securities. The Guarantee does not guarantee
payment of Distributions or amounts payable on redemption of the
Capital Securities or liquidation of the Trust when the Trust
does not have funds on hand legally available for such payments.
See "Description of Guarantee."
Distributions
Distributions on the Trust Securities are cumulative,
accumulate from June 6, 1997 and are payable semi-annually in
arrears on June 6 and December 6 of each year, commencing
December 6, 1997, at the annual rate of 9.27% (which is the same
rate payable on the Junior Subordinated Debentures) of the
Liquidation Amount to the holders of the Trust Securities on the
relevant record dates. The record dates are the fifteenth day
prior to the relevant Distribution Date (as defined below). The
amount of Distributions payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months and, for
any period of less than a full calendar month, the number of days
elapsed in such month. In the event that any date on which
Distributions are payable on the Trust Securities is not a
Business Day (as defined below), 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 to any such delay), in each case with the same force and
effect as if made on such date (each date on which Distributions
are payable in accordance with the foregoing, a "Distribution
Date"). A "Business Day" shall mean any day other than a Saturday
or a Sunday, or a day on which banking institutions in The City
of New York or Wilmington, Delaware are authorized or required by
law or executive order to remain closed.
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So long as no Debenture Event of Default shall have occurred
and be continuing, the Corporation will have the right under the
Indenture to defer the payment of interest on the Junior
Subordinated Debentures at any time, and from time to time, for a
period not exceeding 10 consecutive semi-annual periods with
respect to each Extension Period, provided that no Extension
Period may end on a day other than an Interest Payment Date or
extend beyond the Stated Maturity Date. Upon any such election,
semi-annual Distributions on the Trust Securities will be
deferred by the Trust during any such Extension Period.
Distributions to which holders of the Trust Securities are
entitled during any such Extension Period will accumulate
additional Distributions thereon at the rate per annum of 9.27%
thereof, compounded semi-annually from the relevant Distribution
Date, but not exceeding the interest rate then accruing on the
Junior Subordinated Debentures. The term "Distributions," as used
herein, shall include any such additional Distributions.
During any Extension Period, the Corporation may further
extend such Extension Period, provided that such extension does
not cause such Extension Period to exceed 10 consecutive
semi-annual periods or to extend beyond the Stated Maturity Date.
Upon the expiration of any Extension Period and the payment of
all amounts then due, and subject to the foregoing limitations,
the Corporation may elect to begin a new Extension Period. The
Corporation must give the Property Trustee, the Administrators
and the Debenture Trustee notice of its election of any Extension
Period or any extension thereof at least five Business Days prior
to the earlier of (i) the date the Distributions on the Trust
Securities would have been payable except for the election to
begin such Extension Period and (ii) the date the Administrators
are required to give notice to any securities exchange or to
holders of such Trust Securities of the record date or the date
such Distributions are payable but in any event not less than
five Business Days prior to such record date. There is no
limitation on the number of times that the Corporation may elect
to begin an Extension Period. See "Description of Junior
Subordinated Debentures--Option to Extend Interest Payment Date"
and "Certain Federal Income Tax Consequences--Interest Income and
Original Issue Discount."
During any Extension Period, the Corporation may not (i)
declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to,
any of the Corporation's capital stock (which includes common and
preferred stock) or (ii) make any payment of principal of or
premium, if any, or interest on or repay, repurchase or redeem
any debt securities of the Corporation (including Other
Debentures) that rank pari passu with or junior in right of
payment to the Junior Subordinated Debentures or (iii) make any
guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the
Corporation (including any Other Guarantees) if such guarantee
ranks pari passu with or junior in right of payment to the Junior
Subordinated Debentures (other than (a) dividends or
distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, capital stock of the
Corporation, (b) any declaration of a dividend in connection with
the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee, (d) as a result of a
reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the
Corporation's capital stock for another class or series of the
Corporation's capital stock, (e) the purchase of fractional
interests in shares of the Corporation's capital stock pursuant
to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, and (f) purchases or
acquisitions of capital stock related to the issuance of capital
stock or rights under any of the Corporation's benefit plans for
its directors, officers or employees or any of the Corporation's
dividend reinvestment plans). The Corporation has no current
intention to exercise its option to defer payments of interest on
the Junior Subordinated Debentures.
The revenue of the Trust available for distribution to
holders of the Trust Securities is limited to payments under the
Junior Subordinated Debentures. See "Description of Junior
Subordinated Debentures--General." If the Corporation does not
make interest payments on the Junior Subordinated Debentures, the
Property Trustee will not have funds available to pay
Distributions on the Trust Securities. The payment of
Distributions (if and to the extent the Trust has funds on hand
legally available for the payment of such Distributions) is
guaranteed by the Corporation on a limited basis as set forth
herein under "Description of Guarantee."
Redemption
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Upon the repayment on the Stated Maturity Date or prepayment
prior to the Stated Maturity Date of the Junior Subordinated
Debentures, the proceeds from such repayment or prepayment shall
be applied by the Property Trustee to redeem a Like Amount (as
defined below) of the Trust Securities, upon not less than 30 nor
more than 60 days' notice of a date of redemption (the
"Redemption Date"), at the applicable Redemption Price, which
shall be equal to (i) in the case of the repayment of the Junior
Subordinated Debentures on the Stated Maturity Date, the Maturity
Redemption Price, (ii) in the case of the optional prepayment of
the Junior Subordinated Debentures prior to June 6, 2007, upon
the occurrence and continuation of a Special Event, the Special
Event Redemption Price and (iii) in the case of the optional
prepayment of the Junior Subordinated Debentures on or after June
6, 2007, the Optional Redemption Price. See "Description of
Junior Subordinated Debentures--Optional Prepayment" and
"--Special Event Prepayment."
"Like Amount" means (i) with respect to a redemption of the
Trust Securities, Trust Securities having a Liquidation Amount
equal to the principal amount of Junior Subordinated Debentures
to be paid in accordance with their terms and (ii) with respect
to a distribution of Junior Subordinated Debentures upon the
liquidation of the Trust, Junior Subordinated Debentures having a
principal amount equal to the Liquidation Amount of the Trust
Securities of the holder to whom such Junior Subordinated
Debentures are distributed.
The Corporation has the option to prepay the Junior
Subordinated Debentures, (i) in whole or in part, on or after
June 6, 2007, at the applicable Optional Prepayment Price and
(ii) in whole but not in part, at any time prior to June 6, 2007
upon the occurrence of a Special Event, at the Special Event
Prepayment Price, in each case subject to receipt of any
regulatory approval required therefor.
Liquidation of the Trust and Distribution of Junior Subordinated
Debentures
The Corporation has the right at any time to dissolve the
Trust and, after satisfaction of liabilities to creditors of the
Trust (to the extent not satisfied by the Corporation) as
provided by applicable law, cause the Junior Subordinated
Debentures to be distributed to the holders of the Trust
Securities in liquidation of the Trust. Such right is subject to
(i) the Corporation having received an opinion of counsel to the
effect that such distribution will not be a taxable event to
holders of Capital Securities and (ii) receipt of any regulatory
approval required therefor.
The Trust shall automatically dissolve and its affairs
shall be wound up upon the first to occur of: (i) certain events
of bankruptcy, dissolution or liquidation of the Corporation;
(ii) the distribution of a Like Amount of the Junior Subordinated
Debentures to the holders of the Trust Securities, if the
Corporation, as Sponsor, has given written direction to the
Property Trustee to dissolve the Trust (which direction is
optional and, except as described above, wholly within the
discretion of the Corporation, as Sponsor); (iii) redemption of
all of the Trust Securities as described under "--Redemption";
(iv) expiration of the term of the Trust; and (v) the entry of an
order for the dissolution of the Trust by a court of competent
jurisdiction.
If a dissolution occurs as described in clause (i), (ii),
(iv) or (v) of the preceding paragraph, the Trust shall be
liquidated by the Issuer Trustees as expeditiously as the Issuer
Trustees determine to be possible by distributing, after
satisfaction of liabilities to creditors of the Trust (to the
extent not satisfied by the Corporation) as provided by
applicable law, to the holders of the Trust Securities a Like
Amount of the Junior Subordinated Debentures, unless such
distribution is determined by the Property Trustee not to be
practicable, in which event such holders will be entitled to
receive out of the assets of the Trust legally available for
distribution to holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount
equal to the aggregate of the Liquidation Amount plus accumulated
and unpaid Distributions thereon to the date of payment (such
amount being the "Liquidation Distribution"). If the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets on hand legally available to pay in full the
aggregate Liquidation Distribution, then the amounts payable
directly by the Trust on the Trust Securities shall be paid on a
pro rata basis, except that if a Debenture Event of Default has
occurred and is continuing, the Capital Securities shall have a
priority over the Common Securities. See "--Subordination of
Common Securities."
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If the Corporation elects not to prepay the Junior
Subordinated Debentures prior to maturity in accordance with
their terms and either elects not to or is unable to liquidate
the Trust and distribute the Junior Subordinated Debentures to
holders of the Trust Securities, the Trust Securities will remain
outstanding until the repayment of the Junior Subordinated
Debentures on the Stated Maturity Date.
After the liquidation date fixed for any distribution of
Junior Subordinated Debentures to holders of the Trust
Securities, (i) the Trust Securities will no longer be deemed to
be outstanding, (ii) each holder of Trust Securities will receive
a registered certificate or certificates representing the Junior
Subordinated Debentures to be delivered upon such distribution
and (iii) Trust Securities will be deemed to represent Junior
Subordinated Debentures having a principal amount equal to the
Liquidation Amount of such Trust Securities, and bearing accrued
and unpaid interest in an amount equal to the accumulated and
unpaid Distributions on such Trust Securities until certificates
representing such Trust Securities are presented to the
Administrators or their agent for cancellation, whereupon the
Corporation will issue to such holder, and the Debenture Trustee
will authenticate, a certificate representing such Junior
Subordinated Debentures.
There can be no assurance as to the market prices for the
Capital Securities or the Junior Subordinated Debentures that may
be distributed in exchange for the Trust Securities if a
dissolution and liquidation of the Trust were to occur.
Accordingly, the Capital Securities or the Junior Subordinated
Debentures may trade at a discount to the price that investors
paid to purchase the Old Capital Securities.
Redemption Procedures
If applicable, Trust Securities shall be redeemed at the
applicable Redemption Price with the proceeds from the
contemporaneous repayment or prepayment of the Junior
Subordinated Debentures. Any redemption of Trust Securities shall
be made and the applicable Redemption Price shall be payable on
the Redemption Date only to the extent that the Trust has funds
legally available for the payment of such applicable Redemption
Price. See also "--Subordination of Common Securities."
If the Trust gives a notice of redemption in respect of the
Trust Securities, then, by 12:00 noon, New York City time, on the
Redemption Date, to the extent funds are legally available, with
respect to the Trust Securities held by DTC or its nominee, the
Property Trustee or the Paying Agent will pay the applicable
Redemption Price to DTC. See "--Form, Denomination, Book-Entry
Procedures and Transfer." With respect to the Trust Securities
held in certificated form, the Property Trustee, to the extent
funds are legally available, will pay the applicable Redemption
Price to the holders thereof upon surrender of their certificates
evidencing the Trust Securities. See "--Payment and Paying
Agency." Distributions payable on or prior to the Redemption Date
shall be payable to the holders of such Trust Securities on the
relevant record dates for the related Distribution Dates. If
notice of redemption shall have been given and funds deposited
with the Property Trustee to pay the Redemption Price for the
Trust Securities called for redemption, then upon the date of
such deposit, all rights of the holders of the Capital Securities
will cease, except the right of the holders of the Trust
Securities to receive the applicable Redemption Price, but
without interest on such Redemption Price, and the Trust
Securities will cease to be outstanding. In the event that any
Redemption Date of Trust Securities is not a Business Day, then
the applicable Redemption Price payable on such date will be paid
on the next succeeding day that is a Business Day (without any
interest or other payment in respect of any such delay), in each
case with the same force and effect as if made on such date. In
the event that payment of the applicable Redemption Price is
improperly withheld or refused and not paid either by the Trust
or by the Corporation pursuant to the Guarantee as described
under "Description of Guarantee," (i) Distributions on Trust
Securities will continue to accumulate at the then applicable
rate, from the Redemption Date originally established by the
Trust to the date such applicable Redemption Price is actually
paid, and (ii) the actual payment date will be the Redemption
Date for purposes of calculating the applicable Redemption Price.
Subject to applicable law (including, without limitation,
United States federal securities law), the Corporation or its
subsidiaries may at any time and from time to time purchase
outstanding Capital Securities by tender, in the open market or
by private agreement.
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Notice of any redemption will be mailed at least 30 days but
not more than 60 days prior to the Redemption Date to each holder
of Trust Securities at its registered address. Unless the
Corporation defaults in payment of the applicable Prepayment
Price on, or in the repayment of, the Junior Subordinated
Debentures, on and after the Redemption Date Distributions will
cease to accrue on the Trust Securities called for redemption.
Subordination of Common Securities
Payment of Distributions on, and the Redemption Price of,
the Trust Securities, as applicable, shall be made pro rata based
on the Liquidation Amount of the Capital Securities and Common
Securities; provided, however, that if on any Distribution Date
or Redemption Date a Debenture Event of Default shall have
occurred and be continuing, no payment of any Distribution on, or
applicable Redemption Price of, any of the Common Securities, and
no other payment on account of the redemption, liquidation or
other acquisition of the Common Securities shall be made unless
payment in full in cash of all accumulated and unpaid
Distributions on all of the outstanding Capital Securities for
all Distribution periods terminating on or prior thereto, or in
the case of payment of the applicable Redemption Price the full
amount of such Redemption Price, shall have been made or provided
for, and all funds available to the Property Trustee shall first
be applied to the payment in full in cash of all Distributions
on, or Redemption Price of, the Capital Securities then due and
payable.
In the case of any Event of Default, the Corporation as
holder of the Common Securities will be deemed to have waived any
right to act with respect to such Event of Default until the
effect of such Event of Default shall have been cured, waived or
otherwise eliminated. Until any such Event of Default has been so
cured, waived or otherwise eliminated, the Property Trustee shall
act solely on behalf of the holders of the Capital Securities and
not on behalf of the Corporation as holder of the Common
Securities, and only the holders of the Capital Securities will
have the right to direct the Property Trustee to act on their
behalf.
Events of Default; Notice
The occurrence of a Debenture Event of Default (see
"Description of Junior Subordinated Debentures--Debenture Events
of Default") constitutes an "Event of Default" under the Trust
Agreement.
Within ten Business Days after the occurrence of any Event
of Default actually known to the Property Trustee, the Property
Trustee shall transmit notice of such Event of Default to the
holders of the Capital Securities and the Corporation, as
Sponsor, unless such Event of Default shall have been cured or
waived. The Corporation, as Sponsor, and the Trust are required
to file annually with the Property Trustee a certificate as to
whether or not they are in compliance with all the conditions and
covenants applicable to them under the Trust Agreement.
If a Debenture Event of Default has occurred and is
continuing, the Capital Securities shall have a preference over
the Common Securities as described under "--Liquidation of the
Trust and Distribution of Junior Subordinated Debentures" and
"--Subordination of Common Securities."
Removal of Issuer Trustees
Any Issuer Trustee may be removed at any time by the
holders of a majority in Liquidation Amount of the outstanding
Capital Securities. In no event will the holders of the Capital
Securities have the right to vote to appoint, remove or replace
the Administrators, which voting rights are vested exclusively in
the Corporation as the holder of the Common Securities. No
resignation or removal of an Issuer Trustee and no appointment of
a successor trustee shall be effective until the acceptance of
appointment by the successor trustee in accordance with the
provisions of the Trust Agreement.
Merger or Consolidation of Issuer Trustees
Any entity into which the Property Trustee or the Delaware
Trustee may be merged or converted or with which it may be
consolidated, or any entity resulting from any merger, conversion
or consolidation to which such
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Issuer Trustee shall be a party, or any entity succeeding to
all or substantially all the corporate trust business of such
Issuer Trustee, shall be the successor of such Issuer Trustee
under the Trust Agreement, provided such entity shall be
otherwise qualified and eligible.
Mergers, Conversions, Consolidations, Amalgamations or Replacements
of the Trust
The Trust may not merge or convert with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer
or lease its properties and assets as an entirety or
substantially as an entirety to any corporation or other Person,
except as described below or otherwise described under
"--Liquidation of the Trust and Distribution of Junior
Subordinated Debentures." The Trust may, at the request of the
Corporation, as Sponsor, but without the consent of the holders
of the Capital Securities, merge or convert with or into,
consolidate, amalgamate, or be replaced by or convey, transfer or
lease its properties and assets as an entirety or substantially
as an entirety to a trust organized as such under the laws of any
State; provided, that (i) such successor entity either (a)
expressly assumes all of the obligations of the Trust with
respect to the Trust Securities or (b) substitutes for the Trust
Securities other securities having substantially the same terms
as the Trust Securities (the "Successor Securities") so long as
the Successor Securities rank the same as the Trust Securities
rank in priority with respect to distributions and payments upon
liquidation, redemption and otherwise, (ii) the Corporation
expressly appoints a trustee of such successor entity possessing
the same powers and duties as the Property Trustee with respect
to the Junior Subordinated Debentures, (iii) the Successor
Securities are listed, or any Successor Securities will be listed
upon notification of issuance, on any national securities
exchange or other organization on which the Capital Securities
are then listed, if any, (iv) such merger, conversion,
consolidation, amalgamation, replacement, conveyance, transfer or
lease does not cause the Trust Securities (including any
Successor Securities) or, if the Junior Subordinated Debentures
are so rated, the Junior Subordinated Debentures (including any
Successor Debentures) to be downgraded by any nationally
recognized statistical rating organization then rating the
Capital Securities or any Successor Securities, (v) such merger,
conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights,
preferences and privileges of the holders of the Trust Securities
(including any Successor Securities) in any material respect
(other than dilution of such holder's interests in the new
entity, if any), (vi) such successor entity has a purpose
substantially identical to that of the Trust, (vii) prior to such
merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease, the Corporation has received an opinion from
independent counsel to the Trust experienced in such matters to
the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely
affect the rights, preferences and privileges of the holders of
the Trust Securities (including any Successor Securities) in any
material respect (other than dilution of such holder's interests
in the new entity, if any), and (b) following such merger,
conversion, consolidation, amalgamation, replacement, conveyance,
transfer or lease, (I) neither the Trust nor such successor
entity will be required to register as an investment company
under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and (II) the Trust or such successor
entity shall be classified as a grantor trust for United States
federal income tax purposes and (viii) the Corporation or any
permitted successor or assignee owns all of the common securities
of such successor entity and guarantees the obligations of such
successor entity under the Successor Securities at least to the
extent provided by the Guarantee. Notwithstanding the foregoing,
the Trust shall not, except with the consent of holders of 100%
in Liquidation Amount of the Trust Securities, consolidate,
amalgamate, merge or convert with or into, or be replaced by or
convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge or
convert with or into, or replace it if such consolidation,
amalgamation, merger, conversion, replacement, conveyance,
transfer or lease would cause the Trust or the successor entity
not to be classified as a grantor trust for United States federal
income tax purposes.
Voting Rights; Amendment of the Trust Agreement
Except as provided below and under "--Mergers, Conversions,
Consolidations, Amalgamations or Replacements of the Trust" and
"Description of Guarantee--Amendments and Assignment" and as
otherwise required by law and the Trust Agreement, the holders of
the Capital Securities will have no voting rights.
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The Trust Agreement may be amended from time to time
without the consent of the holders of the Trust Securities (i) to
cure any ambiguity, correct or supplement any provisions in the
Trust Agreement that may be inconsistent with any other
provision, or to make any other provisions with respect to
matters or questions arising under the Trust Agreement, which
shall not be inconsistent with the other provisions of the Trust
Agreement, or (ii) to modify, eliminate or add to any provisions
of the Trust Agreement to such extent as shall be necessary to
ensure that the Trust will be classified for United States
federal income tax purposes as a grantor trust at all times that
any Trust Securities are outstanding or to ensure that the Trust
will not be required to register as an "investment company" under
the Investment Company Act; provided, however, that in the case
of clause (i), such action shall not adversely affect in any
material respect the interests of the holders of the Trust
Securities, and any amendments of the Trust Agreement shall
become effective when notice thereof is given to the holders of
the Trust Securities. The Trust Agreement may be amended by the
Issuer Trustees and the Corporation (i) with the consent of
holders representing a majority (based upon Liquidation Amount)
of the outstanding Trust Securities, and (ii) upon receipt by the
Issuer Trustees of an opinion of a nationally recognized counsel
experienced in such matters to the effect that such amendment or
the exercise of any power granted to the Issuer Trustees in
accordance with such amendment will not affect the Trust's status
as a grantor trust for United States federal income tax purposes
or the Trust's exemption from status as an "investment company"
under the Investment Company Act, provided that, without the
consent of each holder of Trust Securities, the Trust Agreement
may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely
affect the amount of any Distribution required to be made in
respect of the Trust Securities as of a specified date or (ii)
restrict the right of a holder of Trust Securities to institute
suit for the enforcement of any such payment on or after such
date.
So long as any Junior Subordinated Debentures are held by
the Property Trustee, the Property Trustee shall not (i) direct
the time, method and place of conducting any proceeding for any
remedy available to the Debenture Trustee, or executing any trust
or power conferred on such Property Trustee with respect to the
Junior Subordinated Debentures, (ii) waive certain past defaults
under the Indenture, (iii) exercise any right to rescind or annul
a declaration of acceleration of the maturity of the principal of
the Junior Subordinated Debentures or (iv) consent to any
amendment, modification or termination of the Indenture or the
Junior Subordinated Debentures, where such consent shall be
required, without, in each case, obtaining the prior approval of
the holders of a majority in Liquidation Amount of all
outstanding Capital Securities; provided, however, that where a
consent under the Indenture would require the consent of each
holder of Junior Subordinated Debentures affected thereby, no
such consent shall be given by the Property Trustee without the
prior approval of each holder of the Capital Securities. The
Property Trustee shall not revoke any action previously
authorized or approved by a vote of the holders of the Capital
Securities except by subsequent vote of such holders. The
Property Trustee shall notify each holder of Capital Securities
of any notice of default with respect to the Junior Subordinated
Debentures. In addition to obtaining the foregoing approvals of
such holders of the Capital Securities, prior to taking any of
the foregoing actions, the Property Trustee shall obtain an
opinion of a nationally recognized tax counsel experienced in
such matters to the effect that the Trust will not be classified
as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
Any required approval of holders of Capital Securities may
be given at a meeting of such holders convened for such purpose
or pursuant to written consent. The Property Trustee will cause a
notice of any meeting at which holders of Capital Securities are
entitled to vote, or of any matter upon which action by written
consent of such holders is to be taken, to be given to each
holder of record of Capital Securities in the manner set forth in
the Trust Agreement.
No vote or consent of the holders of Capital Securities
will be required for the Trust to redeem and cancel the Capital
Securities in accordance with the Trust Agreement.
Notwithstanding that holders of the Capital Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Capital Securities that are owned by
the Corporation, the Issuer Trustees or any affiliate of the
Corporation or any Issuer Trustees, shall, for purposes of such
vote or consent, be treated as if they were not outstanding.
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Form, Denomination, Book-Entry Procedures and Transfer
The Capital Securities will be in blocks having a
Liquidation Amount of not less than $100,000 (100 Capital
Securities) and may be transferred or exchanged in such blocks in
the manner and at the offices described below.
The New Capital Securities initially will be represented by
one or more Capital Securities in fully registered, global form
("Global Capital Securities"). The Global Capital Securities will
be deposited upon issuance with the Property Trustee as custodian
for DTC in New York, New York, and registered in the name of DTC
or its nominee, for credit to an account of a direct or indirect
participant in DTC as described below.
Except as set forth below, the Global Capital Securities
may be transferred, in whole and not in part, only to another
nominee of DTC or to a successor of DTC or its nominee.
Beneficial interests in the Global Capital Securities may not be
exchanged for Capital Securities in certificated form except in
the limited circumstances described below. See "--Exchange of
Book-Entry Capital Securities for Certificated Capital
Securities."
Other New Capital Securities may be issued in fully
registered, certificated (i.e., non-global) form. Certificated
Capital Securities may not be exchanged for beneficial interests
in any Global Capital Securities except in the limited
circumstances described below. See "--Exchange of Certificated
Capital Securities for Book-Entry Capital Securities."
In addition, transfer of beneficial interests in the Global
Capital Securities will be subject to the applicable rules and
procedures of DTC and its direct or indirect participants, which
may change from time to time.
Depositary Procedures
DTC has advised the Trust and the Corporation that DTC is a
limited-purpose trust company created to hold securities for its
participating organizations (collectively, the "Participants")
and to facilitate the clearance and settlement of transactions in
those securities between Participants through electronic
book-entry changes in accounts of its Participants. The
Participants include securities brokers and dealers (including
the Initial Purchaser), banks, trust companies, clearing
corporations and certain other organizations. Access to DTC's
system is also available to other entities such as banks,
brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Participant, either
directly or indirectly (collectively, the "Indirect
Participants"). Persons who are not Participants may beneficially
own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interest
and transfer of ownership interest of each actual purchaser of
each security held by or on behalf of DTC are recorded on the
records of the Participants and Indirect Participants.
DTC has also advised the Trust and the Corporation that,
pursuant to procedures established by it, (i) upon deposit of the
Global Capital Securities, DTC will credit the accounts of
Participants with portions of the Liquidation Amount of the
Global Capital Securities and (ii) ownership of such interests in
the Global Capital Securities will be shown on, and the transfer
of ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the
Participants and the Indirect Participants (with respect to other
owners of beneficial interests in the Global Capital Securities).
Investors in the Global Capital Securities may hold their
interests therein directly through DTC if they are Participants
or indirectly through organizations that are Participants. All
interests in a Global Capital Security may be subject to the
procedures and requirements of DTC. The laws of some states
require that certain persons take physical delivery in
certificated form of securities that they own. Consequently, the
ability to transfer beneficial interests in a Global Capital
Security to such persons will be limited to that extent. Because
DTC can act only on behalf of Participants, which in turn act on
behalf of Indirect Participants and certain banks, the ability of
a person having beneficial interests in a Global Capital Security
to pledge such interests to persons or entities
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that do not participate in the DTC system, or otherwise take
actions in respect of such interests, may be affected by the lack
of a physical certificate evidencing such interests. For certain
other restrictions on the transferability of the Capital
Securities, see "--Exchange of Book-Entry Capital Securities for
Certificated Capital Securities" and "--Exchange of Certificated
Capital Securities for Book-Entry Capital Securities."
Except as described below, owners of interests in the
Global Capital Securities will not have Capital Securities
registered in their name, will not receive physical delivery of
Capital Securities in certificated form and will not be
considered the registered owners or holders thereof under the
Trust Agreement for any purpose.
Payments in respect of a Global Capital Security registered
in the name of DTC or its nominee will be payable by the Property
Trustee to DTC in its capacity as the registered holder under the
Trust Agreement. Under the terms of the Trust Agreement, the
Property Trustee will treat the persons in whose names the
Capital Securities, including the Global Capital Securities, are
registered as the owners thereof for the purpose of receiving
such payments and for any and all other purposes whatsoever.
Consequently, neither the Property Trustee nor any agent thereof
has or will have any responsibility or liability for (i) any
aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of
beneficial ownership interests in the Global Capital Securities,
or for maintaining, supervising or reviewing any of DTC's records
or any Participant's or Indirect Participant's records relating
to the beneficial ownership interests in the Global Capital
Securities or (ii) any other matter relating to the actions and
practices of DTC or any of its Participants or Indirect
Participants. DTC has advised the Trust and the Corporation that
its current practice, upon receipt of any payment in respect of
securities such as the Capital Securities, is to credit the
accounts of the relevant Participants with the payment on the
payment date, in amounts proportionate to their respective
holdings in Liquidation Amount of beneficial interests in the
relevant security as shown on the records of DTC unless DTC has
reason to believe it will not receive payment on such payment
date. Payments by the Participants and the Indirect Participants
to the beneficial owners of Capital Securities will be governed
by standing instructions and customary practices and will be the
responsibility of the Participants or the Indirect Participants
and will not be the responsibility of DTC, the Property Trustee,
the Trust or the Corporation. Neither the Trust or the
Corporation nor the Property Trustee will be liable for any delay
by DTC or any of its Participants in identifying the beneficial
owners of the Capital Securities, and the Trust or the
Corporation and the Property Trustee may conclusively rely on and
will be protected in relying on instructions from DTC or its
nominee for all purposes.
Secondary market trading activity in interests in the
Global Capital Securities will settle in immediately available
funds, subject in all cases to the rules and procedures of DTC
and its Participants. Transfers between Participants in DTC will
be effected in accordance with DTC's procedures, and will be
settled in same-day funds.
DTC has advised the Trust and the Corporation that it will
take any action permitted to be taken by a holder of Capital
Securities only at the direction of one or more Participants to
whose account with DTC interests in the Global Capital Securities
are credited and only in respect of such portion of the
Liquidation Amount of the Capital Securities as to which such
Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Trust
Agreement, DTC reserves the right to exchange the Global Capital
Securities for legended Capital Securities in certificated form
and to distribute such Capital Securities to its Participants.
The information in this section concerning DTC and its
book-entry system has been obtained from sources that the Trust
and the Corporation believe to be reliable, but neither the Trust
nor the Corporation takes responsibility for the accuracy
thereof.
Although DTC has agreed to the foregoing procedures to
facilitate transfers of interest in the Global Capital Securities
among Participants in DTC, it is under no obligation to perform
or to continue to perform such procedures, and such procedures
may be discontinued at any time. Neither the Trust or the
Corporation nor the Property Trustee will have any responsibility
for the performance by DTC or its Participants or Indirect
Participants of its obligations under the rules and procedures
governing its operations.
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Exchange of Book-Entry Capital Securities for Certificated
Capital Securities
A Global Capital Security is exchangeable for Capital
Securities in registered certificated form if (i) DTC either (x)
notifies the Corporation that it is unwilling or unable to
continue as securities depositary for the Global Capital Security
(the "Depositary") and the Corporation thereupon fails to appoint
a successor Depositary within 90 days or (y) has ceased to be a
clearing agency registered under the Exchange Act and the
Corporation thereupon fails to appoint a successor Depositary
within 90 days, (ii) the Corporation in its sole discretion
elects to cause the issuance of the Capital Securities in
certificated form or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or
lapse of time or both would be an Event of Default under the
Trust Agreement. In addition, beneficial interests in a Global
Capital Security may be exchanged for certificated Capital
Securities upon request but only upon at least 20 days' prior
written notice given to the Property Trustee by or on behalf of
DTC in accordance with customary procedures. In all cases,
certificated Capital Securities delivered in exchange for any
Global Capital Security or beneficial interests therein will be
registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in
accordance with its customary procedures), unless the Property
Trustee determines otherwise in compliance with applicable law.
Exchange of Certificated Capital Securities for Book-Entry
Capital Securities
Capital Securities which are issued in certificated form
may not be exchanged for beneficial interests in any Global
Capital Security unless such exchange occurs in connection with a
transfer of such certificated Capital Securities.
Payment and Paying Agency
Payments in respect of the Capital Securities held in
global form shall be made to the Depositary, which shall credit
the relevant accounts at the Depositary on the applicable
Distribution Dates or in respect of the Capital Securities that
are not held by the Depositary, such payments shall be made by
check mailed to the address of the holder entitled thereto as
such address shall appear on the register. The paying agent (the
"Paying Agent") shall initially be the Property Trustee and any
co-paying agent chosen by the Property Trustee and acceptable to
the Administrators and the Corporation. The Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice
to the Property Trustee and the Corporation. In the event that
the Property Trustee shall no longer be the Paying Agent, the
Property Trustee shall appoint a successor (which shall be a bank
or trust company acceptable to the Property Trustee and the
Corporation) to act as Paying Agent.
Restrictions on Transfer
The Old Capital Securities were issued, and the New Capital
Securities will be issued, and may be transferred only, in blocks
having a Liquidation Amount of not less than $100,000 (100
Capital Securities). Any such transfer of Capital Securities in a
block having a Liquidation Amount of less than $100,000 shall be
deemed to be void and of no legal effect whatsoever. Any such
transferee shall be deemed not to be the holder of such Capital
Securities for any purpose, including but not limited to the
receipt of Distributions on such Capital Securities, and such
transferee shall be deemed to have no interest whatsoever in such
Capital Securities.
Registrar and Transfer Agent
The Property Trustee acts as registrar and transfer agent
for the Capital Securities. Registration of transfers of the
Capital Securities will be effected without charge by or on
behalf of the Trust, but upon payment of any tax or other
governmental charges that may be imposed in connection with any
transfer or exchange. The Trust is not required to register or
cause to be registered the transfer of the Capital Securities
after they have been called for redemption.
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Information Concerning the Property Trustee
The Property Trustee, other than during the occurrence and
continuance of an Event of Default, undertakes to perform only
such duties as are specifically set forth in the Trust Agreement
and, after such Event of Default, must exercise the same degree
of care and skill as a prudent person would exercise or use in
the conduct of his or her own affairs. Subject to this provision,
the Property Trustee is under no obligation to exercise any of
the powers vested in it by the Trust Agreement at the request of
any holder of Trust Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might
be incurred thereby. If no Event of Default has occurred and is
continuing and the Property Trustee is required to decide between
alternative causes of action, construe ambiguous provisions in
the Trust Agreement or is unsure of the application of any
provision of the Trust Agreement, and the matter is not one on
which holders of the Capital Securities or the Common Securities
are entitled under the Trust Agreement to vote, then the Property
Trustee shall take such action as is directed by the Corporation
and if not so directed, shall take such action as it deems
advisable and in the best interests of the holders of the Trust
Securities and will have no liability except for its own bad
faith, negligence or willful misconduct.
Miscellaneous
The Administrators, the holders of a majority of the Common
Securities and the Property Trustee are authorized and directed
to conduct the affairs of and to operate the Trust in such a way
that the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or
classified as an association taxable as a corporation for United
States federal income tax purposes and so that the Junior
Subordinated Debentures will be treated as indebtedness of the
Corporation for United States federal income tax purposes. In
this connection, the Property Trustee and the holders of a
majority of the Common Securities are authorized, but not
obligated, to take any action, not inconsistent with applicable
law, the certificate of trust of the Trust or the Trust
Agreement, that the Property Trustee and such holders of Common
Securities determine in their discretion to be necessary or
desirable for such purposes, as long as such action does not
materially adversely affect the interests of the holders of the
Trust Securities.
Holders of the Trust Securities have no preemptive or
similar rights.
The Trust may not borrow money, issue debt, execute
mortgages or pledge any of its assets.
DESCRIPTION OF JUNIOR SUBORDINATED DEBENTURES
The Old Junior Subordinated Debentures were issued, and the
New Junior Subordinated Debentures will be issued, as a separate
series under an Indenture (the "Indenture"), between the
Corporation and The Chase Manhattan Bank, as trustee (the
"Debenture Trustee"). The Indenture has been qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"). By its terms, the Indenture incorporates certain
provisions of the Trust Indenture Act, and is subject to and
governed by the Trust Indenture Act. This summary of certain
terms and provisions of the Junior Subordinated Debentures and
the Indenture does not purport to be complete, and where
reference is made to particular provisions of the Indenture, such
provisions, including the definitions of certain terms, some of
which are not otherwise defined herein, are qualified in their
entirety by reference to all of the provisions of the Indenture
and those terms made a part of the Indenture by the Trust
Indenture Act.
General
Concurrently with the issuance of the Old Capital Securities
and the Common Securities, the Trust invested the proceeds
thereof in Junior Subordinated Debentures issued by the
Corporation. Pursuant to the Exchange Offer, the Corporation will
exchange the Old Junior Subordinated Debentures for a like
aggregate principal amount of the New Junior Subordinated
Debentures promptly after the Expiration Date.
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The Junior Subordinated Debentures bear interest at the
annual rate of 9.27% of the principal amount thereof, payable
semi-annually in arrears on June 6 and December 6 of each year
(each, an "Interest Payment Date"), commencing December 6, 1997,
to the person in whose name each Junior Subordinated Debenture is
registered, subject to certain exceptions, at the close of
business on the fifteenth day prior to the relevant payment date.
It is anticipated that, until the liquidation, if any, of the
Trust, each Junior Subordinated Debenture will be held in the
name of the Property Trustee in trust for the benefit of the
holders of the Trust Securities. The amount of interest payable
for any period will be computed on the basis of a 360-day year of
twelve 30-day months and, for any period of less than one full
calendar month, the number of days elapsing in such month. In the
event that any date on which interest is payable on the Junior
Subordinated Debentures is not a Business Day, then payment of
the 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), in each case with
the same force and effect as if made on the date such payment was
originally payable. Accrued interest that is not paid on the
applicable Interest Payment Date will bear additional interest on
the amount thereof (to the extent permitted by law) at the rate
per annum of 9.27% thereof, compounded semi-annually. The term
"interest", as used herein, shall include semi-annual interest
payments, interest on semi-annual interest payments not paid on
the applicable Interest Payment Date and Additional Sums (as
defined below), as applicable.
The Old Junior Subordinated Debentures have been issued,
and the New Junior Subordinated Debentures will be issued, in
denominations of $100,000 and integral multiples of $1,000 in
excess thereof. The Junior Subordinated Debentures will mature on
June 6, 2027 (the "Stated Maturity Date").
The New Junior Subordinated Debentures will rank pari passu
with the Old Junior Subordinated Debentures and with all Other
Debentures and will be unsecured and will rank subordinate and
junior in right of payment to all Senior Indebtedness to the
extent and in the manner set forth in the Indenture. See
"--Subordination."
The Corporation is a non-operating holding company, and
substantially all of the operating assets of the Corporation and
its consolidated subsidiaries are owned by the Bank. The
Corporation is a legal entity separate and distinct from its
subsidiaries. The principal sources of the Corporation's income
are dividends and interest from the Bank and the Corporation's
nonbanking affiliates. The Corporation relies on dividends from
subsidiaries to meet its obligations. The Bank is subject to
certain restrictions imposed by federal law on any loans or
extensions of credit to, investments in, or asset purchases from,
the Corporation or its nonbanking affiliates. Such transactions
by the Bank are generally limited in amount as to the Corporation
and as to each of such other affiliates to 10% of the Bank's
capital and surplus and as to the Corporation and all of such
other affiliates to an aggregate of 20% of the Bank's capital and
surplus. Such restrictions also prevent the Corporation and such
other affiliates from borrowing from the Bank unless the loans
are secured in specified amounts.
In addition, there are federal regulatory limitations on
the payment of dividends directly or indirectly to the
Corporation from the Bank. Federal regulatory agencies also have
the authority to limit payment of dividends by the Bank based on
the capital adequacy of the Bank and the safety and soundness of
the Bank following payment of the proposed dividend.
Because the Corporation is a holding company, the right of
the Corporation to participate in any distribution of assets of
any subsidiary, upon such subsidiary's liquidation or
reorganization or otherwise, is subject to the prior claims of
creditors of the subsidiary (including depositors, in the case of
the Bank), except to the extent the Corporation may itself be
recognized as a creditor of that subsidiary. Accordingly, the
Junior Subordinated Debentures are effectively subordinated to
all existing and future liabilities of the Corporation's
subsidiaries, and holders of Junior Subordinated Debentures
should not rely upon the assets of the Corporation's subsidiaries
for repayment of the Junior Subordinated Debentures. The
Indenture does not limit the incurrence or issuance of other
indebtedness of the Corporation, including Senior Indebtedness.
See "--Subordination."
Form, Registration and Transfer
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If the Junior Subordinated Debentures are distributed to
the holders of the Trust Securities, the Junior Subordinated
Debentures may be represented by one or more global certificates
registered in the name of Cede & Co. as the nominee of DTC. The
depositary arrangements for such Junior Subordinated Debentures
are expected to be substantially similar to those in effect for
the Capital Securities. For a description of DTC and the terms of
the depositary arrangements relating to payments, transfers,
voting rights, redemptions and other notices and other matters,
see "Description of Capital Securities--Form, Denomination,
Book-Entry Procedures and Transfer."
Payment and Paying Agents
Payment of principal of (and premium, if any) and any
interest on Junior Subordinated Debentures will be made at the
office of the Debenture Trustee in The City of New York or at the
office of such Paying Agent or Paying Agents as the Corporation
may designate from time to time, except that at the option of the
Corporation payment of any interest may be made, except in the
case of Junior Subordinated Debentures in global form, (i) by
check mailed to the address of the Person entitled thereto as
such address shall appear in the register for Junior Subordinated
Debentures or (ii) by transfer to an account maintained by the
Person entitled thereto as specified in such register, provided
that proper transfer instructions have been received by the
relevant Record Date. Payment of any interest on any Junior
Subordinated Debenture will be made to the Person in whose name
such Junior Subordinated Debenture is registered at the close of
business on the Record Date for such interest, except in the case
of defaulted interest. The Corporation may at any time designate
additional Paying Agents or rescind the designation of any Paying
Agent; however, the Corporation will at all times be required to
maintain a Paying Agent in each place of payment for the Junior
Subordinated Debentures.
Any moneys deposited with the Debenture Trustee or any
Paying Agent, or then held by the Corporation in trust, for the
payment of the principal of (and premium, if any) or interest on
any Junior Subordinated Debenture and remaining unclaimed for two
years after such principal (and premium, if any) or interest has
become due and payable shall, at the request of the Corporation,
be repaid to the Corporation and the holder of such Junior
Subordinated Debenture shall thereafter look, as a general
unsecured creditor, only to the Corporation for payment thereof.
Option to Extend Interest Payment Date
So long as no Debenture Event of Default has occurred and
is continuing, the Corporation will have the right under the
Indenture at any time, and from time to time, during the term of
the Junior Subordinated Debentures to defer the payment of
interest for a period not exceeding 10 consecutive semi-annual
periods with respect to each Extension Period, provided that no
Extension Period may end on a day other than an Interest Payment
Date or extend beyond the Stated Maturity Date. At the end of any
Extension Period, the Corporation must pay all interest then
accrued and unpaid (together with interest thereon at the annual
rate of 9.27%, compounded semi-annually, to the extent permitted
by applicable law). During an Extension Period, interest will
continue to accrue and holders of Junior Subordinated Debentures
(and holders of the Trust Securities while Trust Securities are
outstanding) will be required to accrue such deferred interest
income for United States federal income tax purposes prior to the
receipt of cash attributable to such income. See "Certain Federal
Income Tax Consequences--Interest Income and Original Issue
Discount."
During any such Extension Period, the Corporation may not
(i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to,
any of the Corporation's capital stock (which includes common and
preferred stock), (ii) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt
securities of the Corporation (including any Other Debentures)
that rank pari passu with or junior in right of payment to the
Junior Subordinated Debentures or (iii) make any guarantee
payments with respect to any guarantee by the Corporation of the
debt securities of any subsidiary of the Corporation (including
any Other Guarantees) if such guarantee ranks pari passu with or
junior in right of payment to the Junior Subordinated Debentures
(other than (a) dividends or distributions in shares of or
options, warrants or rights to subscribe for or purchase shares
of, common stock of the Corporation, (b) any declaration of a
dividend in connection with the implementation of a stockholders'
rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such
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rights pursuant thereto, (c) payments under the Guarantee,
(d) as a result of a reclassification of the Corporation's
capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or
series of the Corporation's capital stock, (e) the purchase of
fractional interests in shares of the Corporation's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common stock
or rights under any of the Corporation's benefit plans for its
directors, officers or employees or any of the Corporation's
dividend reinvestment plans).
Prior to the expiration of any Extension Period, the
Corporation may further extend such Extension Period, provided
that such extension does not cause such Extension Period to
exceed 10 consecutive semi-annual periods or to extend beyond the
Stated Maturity Date. Upon the expiration of any Extension Period
and the payment of all amounts then due on any Interest Payment
Date, the Corporation may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and
payable during an Extension Period, except at the end thereof.
The Corporation must give the Property Trustee, the
Administrators and the Debenture Trustee notice of its election
of any Extension Period (or an extension thereof) at least five
Business Days prior to the earlier of (i) the date the
Distributions on the Trust Securities would have been payable
except for the election to begin or extend such Extension Period
or (ii) the date the Property Trustee is required to give notice
to any securities exchange or to holders of Capital Securities of
the record date or the date such Distributions are payable, but
in any event not less than five Business Days prior to such
record date. The Debenture Trustee shall give notice of the
Corporation's election to begin or extend a new Extension Period
to the holders of the Capital Securities in accordance with the
terms of the Indenture. There is no limitation on the number of
times that the Corporation may elect to begin an Extension
Period.
Optional Prepayment
The Junior Subordinated Debentures are prepayable, in whole
or in part, at the option of the Corporation at any time and from
time to time on or after June 6, 2007 (the "Initial Optional
Prepayment Date"), subject to the Corporation having received any
required regulatory approval, at a prepayment price (the
"Optional Prepayment Price") equal to the percentage of the
outstanding principal amount of the Junior Subordinated
Debentures specified below, plus, in each case, accrued interest
thereon to the date of prepayment if redeemed during the 12-
month period beginning June 6 of the years indicated below:
Year Percentage
----
2007........................ 104.635%
2008........................ 104.172%
2009........................ 103.708%
2010........................ 103.245%
2011........................ 102.781%
2012........................ 102.318%
2013........................ 101.854%
2014........................ 101.391%
2015........................ 100.927%
2016........................ 100.464%
2017 and thereafter......... 100.000%
Special Event Prepayment
If a Special Event occurs and is continuing, the
Corporation may, at its option, and subject to receipt of any
required regulatory approval, prepay the Junior Subordinated
Debentures in whole (but not in part) at any time prior to June
6, 2007 within 90 days of the occurrence of such Special Event,
at a prepayment price (the "Special Event Prepayment Price")
equal to the greater of (i) 100% of the principal amount of such
Junior Subordinated Debentures or (ii) the sum, as determined by
a Quotation Agent, of the present values of 100% of the principal
amount thereof plus the scheduled payments of interest thereon
from the prepayment date to and
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including the Initial Optional Prepayment Date (the
"Remaining Life"), discounted to the prepayment date on a
semi-annual basis (assuming a 360-day year consisting of twelve
30-day months) at the Adjusted Treasury Rate, plus, in the case
of a redemption under clause (i) or clause (ii), accrued and
unpaid interest thereon to the date of prepayment.
A "Special Event" means a Tax Event, a Regulatory Capital
Event or an Investment Company Event (each as defined below) as
the case may be.
A "Tax Event" means the receipt by the Corporation and the
Trust of an opinion of a nationally recognized tax counsel
experienced in such matters to the effect that, 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, or (b) any judicial decision
or 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 administrative position or
interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental agency 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
Administrative Action or decision is announced, in each case, on
or after the date of this Prospectus, there is more than an
insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on
the Junior Subordinated Debentures, (ii) the interest payable by
the Corporation on the Junior Subordinated Debentures is not, or
within 90 days of the date of such opinion will not be,
deductible by the Corporation, in whole or in part, for United
States federal income tax purposes, or (iii) the Trust is, or
will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
A "Regulatory Capital Event" shall occur at any time that
the Corporation becomes, or pursuant to law or regulation or any
rules, guidelines or policies of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") or any official
administrative announcement or decision interpreting such laws,
regulations, rules, policies or guidelines, will become within
180 days, subject to capital requirements under which, in the
written opinion of independent bank regulatory counsel
experienced in such matters, the Capital Securities would not
constitute Tier 1 Capital applied as if the Corporation (or its
successor) were a bank holding company (as that concept is used
in the guidelines or regulations issued by the Federal Reserve as
of the date of this Prospectus) or its then equivalent ("Tier 1
Capital").
"Investment Company Event" means the receipt by the
Corporation and the Trust of an opinion of nationally recognized
independent counsel experienced in practice under the Investment
Company Act 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"), there is more than an insubstantial risk that the
Trust is or will be considered an "investment company" which 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 this Prospectus.
"Adjusted Treasury Rate" means, with respect to any
prepayment date, the rate per annum equal to (i) the yield, under
the heading which represents the average for the immediately
prior week, appearing in the most recently published statistical
release designated "H.15 (519)" or any successor publication
which is published weekly by the Federal Reserve Board and which
establishes yields on actively traded United States Treasury
securities adjusted to constant maturity under the caption
"Treasury Constant Maturities," for the maturity corresponding to
the Remaining Life (if no maturity is within three months before
or after the maturity corresponding to the Remaining Life, yields
for the two published maturities most closely corresponding to
the Remaining Life shall be interpolated, and the Adjusted
Treasury Rate shall be interpolated or extrapolated from such
yields on a straight-line basis, rounding to the nearest month)
or (ii) if such release (or any successor release) is not
published during the week preceding the calculation date or does
not contain such yields, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price
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for the Comparable Treasury Issue (expressed as a percentage
of its principal amount) equal to the Comparable Treasury Price
for such prepayment date, in each case calculated on the third
Business Day preceding the prepayment date, plus in each case (a)
1.50% if such prepayment date occurs on or prior to June 6, 1998,
and (b) 0.50% in all other cases.
"Comparable Treasury Issue" means the United States
Treasury security selected by the Quotation Agent as having a
maturity comparable to the Remaining Life of the Junior
Subordinated Debentures that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the Remaining Life of the Junior Subordinated
Debentures. If no United States Treasury security has a maturity
which is within a period from three months before to three months
after the Initial Optional Prepayment Date, the two most closely
corresponding United States Treasury securities shall be used as
the Comparable Treasury Issue, and the Adjusted Treasury Rate
shall be interpolated or extrapolated on a straight-line basis,
rounding to the nearest month, using such securities.
"Quotation Agent" means the Reference Treasury Dealer,
which shall be appointed by the Corporation. "Reference Treasury
Dealer" means a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer").
"Comparable Treasury Price" means, with respect to any
prepayment date, (i) the average of five Reference Treasury
Dealer Quotations for such prepayment date, after excluding the
highest and lowest such Reference Treasury Dealer Quotations, or
(ii) if the Debenture Trustee obtains fewer than five such
Reference Treasury Dealer Quotations, the average of all such
Quotations.
"Reference Treasury Dealer Quotations" means, with respect
to each Reference Treasury Dealer and any prepayment date, the
average, as determined by the Debenture Trustee, of the bid and
asked prices for the Comparable Treasury Issue (expressed in each
case as a percentage of its principal amount) quoted in writing
to the Debenture Trustee by such Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day
preceding such prepayment date.
"Additional Sums" means such additional amounts as may be
necessary in order that the amount of Distributions then due and
payable by the Trust on the outstanding Trust Securities shall
not be reduced as a result of any additional taxes, duties or
other governmental charges to which the Trust has become subject
as a result of a Tax Event.
Notice of any prepayment will be mailed at least 30 days
but not more than 60 days before the redemption date to each
holder of Junior Subordinated Debentures to be prepaid at its
registered address. Unless the Corporation defaults in payment of
the prepayment price, on and after the prepayment date interest
ceases to accrue on such Junior Subordinated Debentures called
for prepayment.
If the Trust is required to pay any additional taxes,
duties or other governmental charges as a result of a Tax Event,
the Corporation will pay as additional amounts on the Junior
Subordinated Debentures the Additional Sums.
Restrictions on Certain Payments
The Corporation has also covenanted that it will not (i)
declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to,
any of the Corporation's capital stock (which includes common and
preferred stock) or (ii) make any payment of principal, interest
or premium, if any, on or repay or repurchase or redeem any debt
securities of the Corporation (including Other Debentures) that
rank pari passu with or junior in right of payment to the Junior
Subordinated Debentures or (iii) make any guarantee payments with
respect to any guarantee by the Corporation of the debt
securities of any subsidiary of the Corporation (including any
Other Guarantees) if such guarantee ranks pari passu or junior in
right of payment to the Junior Subordinated Debentures (other
than (a) dividends or distributions in shares of, or options,
warrants or rights to subscribe for or purchase shares of, common
stock of the Corporation, (b) any declaration of a
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dividend in connection with the implementation of a
stockholders' rights plan, or the issuance of stock under any
such plan in the future, or the redemption or repurchase of any
such rights pursuant thereto, (c) payments under the Guarantee,
(d) as a result of a reclassification of the Corporation's
capital stock or the exchange or conversion of one class or
series of the Corporation's capital stock for another class or
series of the Corporation's capital stock, (e) the purchase of
fractional interests in shares of the Corporation's capital stock
pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, and (f)
purchases of common stock related to the issuance of common stock
or rights under any of the Corporation's benefit plans for its
directors, officers or employees or any of the Corporation's
dividend reinvestment plans) if at such time (1) there shall have
occurred any event of which the Corporation has actual knowledge
that (a) is, or with the giving of notice or the lapse of time,
or both, would be, a Debenture Event of Default and (b) in
respect of which the Corporation shall not have taken reasonable
steps to cure, (2) if such Junior Subordinated Debentures are
held by the Trust, the Corporation shall be in default with
respect to its payment of any obligations under the Guarantee or
(3) the Corporation shall have given notice of its election of an
Extension Period as provided in the Indenture and shall not have
rescinded such notice, and such Extension Period, or any
extension thereof, shall have commenced and be continuing.
Modification of Indenture
From time to time, the Corporation and the Debenture
Trustee may, without the consent of the holders of Junior
Subordinated Debentures, amend, waive or supplement the Indenture
for specified purposes, including, among other things, curing
ambiguities, defects or inconsistencies (provided that any such
action does not materially adversely affect the interest of the
holders of Junior Subordinated Debentures) and qualifying, or
maintaining the qualification of, the Indenture under the Trust
Indenture Act. The Indenture contains provisions permitting the
Corporation and the Debenture Trustee, with the consent of the
holders of a majority in principal amount of Junior Subordinated
Debentures, to modify the Indenture in a manner affecting the
rights of the holders of Junior Subordinated Debentures;
provided, that no such modification may, without the consent of
the holders of each outstanding Junior Subordinated Debenture so
affected, (i) change the Stated Maturity, or reduce the principal
amount of the Junior Subordinated Debentures or amount payable
upon prepayment thereof, or reduce the rate or extend the time of
payment of interest thereon, or make the principal of, or
interest or premium on, the Junior Subordinated Debentures
payable in any coin or currency other than that provided in the
Junior Subordinated Debentures, or impair or affect the right of
any holder of Junior Subordinated Debentures to institute suit
for the payment thereof, or (ii) reduce the percentage of
principal amount of Junior Subordinated Debentures the holders of
which are required to consent to any such modification of the
Indenture.
Debenture Events of Default
The Indenture provides that any one or more of the
following described events with respect to the Junior
Subordinated Debentures constitutes a "Debenture Event of
Default" (whatever the reason for such Debenture 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):
(i) failure for 30 days to pay any interest on the Junior
Subordinated Debentures or, if such failure results in
acceleration, on any Other Debentures, when due (subject to the
deferral of any due date in the case of an Extension Period); or
(ii) failure to pay any principal or premium, if any, on the
Junior Subordinated Debentures or, if such failure results in
acceleration, on any Other Debentures when due whether at
maturity, upon redemption, by declaration of acceleration of
maturity or otherwise; or
(iii) failure to observe or perform in any material respect
certain other covenants contained in the Indenture for 90 days
after written notice to the Corporation from the Debenture
Trustee or the holders of at least 25% in aggregate outstanding
principal amount of Junior Subordinated Debentures; or
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(iv) certain events in bankruptcy, insolvency or reorganization
of the Corporation.
The holders of a majority in aggregate outstanding
principal amount of the Junior Subordinated Debentures have the
right to direct the time, method and place of conducting any
proceeding for any remedy available to the Debenture Trustee. The
Debenture Trustee or the holders of not less than 25% in
aggregate outstanding principal amount of the Junior Subordinated
Debentures may declare the principal due and payable immediately
upon a Debenture Event of Default. The holders of a majority in
aggregate outstanding principal amount of the Junior Subordinated
Debentures may annul such declaration and waive the default if
the default (other than the non-payment of the principal of the
Junior Subordinated Debentures which has become due solely by
such acceleration) has been cured and a sum sufficient to pay all
matured installments of interest and principal due otherwise than
by acceleration has been deposited with the Debenture Trustee.
The holders of a majority in aggregate outstanding
principal amount of the Junior Subordinated Debentures affected
thereby may, on behalf of the holders of all of the Junior
Subordinated Debentures, waive any past default, except a default
in the payment of principal (or premium, if any) on or interest
(unless such default has been cured and a sum sufficient to pay
all matured installments of interest (and premium, if any) and
principal due otherwise than by acceleration has been deposited
with the Debenture Trustee) or a default in respect of a covenant
or provision which under the Indenture cannot be modified or
amended without the consent of the holder of each outstanding
Junior Subordinated Debenture.
Enforcement of Certain Rights by Holders of Capital Securities
If a Debenture Event of Default shall have occurred and be
continuing and shall be attributable to the failure of the
Corporation to pay interest (or premium, if any) on or principal
of the Junior Subordinated Debentures on the due date, a holder
of Capital Securities may institute a Direct Action. The
Corporation may not amend the Indenture to remove the foregoing
right to bring a Direct Action without the prior written consent
of the holders of all of the Capital Securities. If the right to
bring a Direct Action is removed following the Exchange Offer,
the Trust may become subject to the reporting obligations under
the Exchange Act. Notwithstanding any payments made to a holder
of Capital Securities by the Corporation in connection with a
Direct Action, the Corporation shall remain obligated to pay the
principal of (or premium, if any) or interest on the Junior
Subordinated Debentures, and the Corporation shall be subrogated
to the rights of the holder of such Capital Securities with
respect to payments on the Capital Securities to the extent of
any payments made by the Corporation to such holder in any Direct
Action.
The holders of the Capital Securities will not be able to
exercise directly any remedies, other than those set forth in the
preceding paragraph, available to the holders of the Junior
Subordinated Debentures unless there shall have been an Event of
Default under the Trust Agreement. See "Description of Capital
Securities--Events of Default; Notice."
Consolidation, Merger, Conversion, Sale of Assets and Other
Transactions
The Indenture provides that the Corporation shall not
consolidate with or merge or convert into any other Person or
convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any Person, and no
Person shall consolidate with or merge or convert into the
Corporation or convey, transfer or lease its properties and
assets as an entirety or substantially as an entirety to the
Corporation, unless: (i) in case the Corporation consolidates
with or merges or converts into another Person or conveys or
transfers its properties and assets substantially as an entirety
to any Person, the successor Person is organized under the laws
of the United States or any State or the District of Columbia,
and such successor Person expressly assumes the Corporation's
obligations on the Junior Subordinated Debentures; (ii)
immediately after giving effect thereto, no Debenture Event of
Default, and no event which, after notice or lapse of time or
both, would become a Debenture Event of Default, shall have
occurred and be continuing; and (iii) certain other conditions as
prescribed in the Indenture are met.
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The general provisions of the Indenture do not afford
holders of the Junior Subordinated Debentures protection in the
event of a highly leveraged or other transaction involving the
Corporation that may adversely affect holders of the Junior
Subordinated Debentures.
Satisfaction and Discharge
The Indenture provides that when, among other things, all
Junior Subordinated Debentures not previously delivered to the
Debenture Trustee for cancellation (i) have become due and
payable or (ii) will become due and payable at maturity within
one year, and the Corporation deposits or causes to be deposited
with the Debenture Trustee funds, in trust, for the purpose and
in an amount sufficient to pay and discharge the entire
indebtedness on the Junior Subordinated Debentures not previously
delivered to the Debenture Trustee for cancellation, for the
principal (and premium, if any) and interest to the date of the
deposit or to the Stated Maturity Date, as the case may be, then
the Indenture will cease to be of further effect (except as to
the Corporation's obligations to pay all other sums due pursuant
to the Indenture and to provide the officers' certificates and
opinions of counsel described therein), and the Corporation will
be deemed to have satisfied and discharged the Indenture.
Subordination
The Indenture provides that the Junior Subordinated
Debentures issued thereunder are subordinate and junior in right
of payment to all Senior Indebtedness. No payment of principal
(including redemption payments), premium, if any, or interest on
the Junior Subordinated Debentures may be made at any time when
(i) any Senior Indebtedness 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) the maturity of any Senior Indebtedness has been
accelerated because of a default.
Upon any distribution of assets to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment
for the benefit of creditors, marshaling of assets or any
bankruptcy, insolvency, debt restructuring or similar proceedings
in connection with any insolvency or bankruptcy proceeding of the
Corporation, all Senior Indebtedness must be paid in full before
the holders of the Junior Subordinated Debentures are entitled to
receive or retain any payment in respect thereof.
In the event of the acceleration of the maturity of Junior
Subordinated Debentures due to a Debenture Event of Default, the
holders of all Senior Indebtedness outstanding at the time of
such acceleration will first be entitled to receive payment in
full before the holders of Junior Subordinated Debentures will be
entitled to receive or retain any payment in respect of the
Junior Subordinated Debentures.
"Senior Indebtedness" shall mean all Indebtedness for Money
Borrowed, whether outstanding on the date of execution of the
Indenture or thereafter created, assumed or incurred, unless the
terms thereof specifically provide that it is not superior in
right of payment to the Junior Subordinated Debentures, and any
deferrals, renewals or extensions of such Senior Indebtedness.
"Indebtedness for Money Borrowed" shall mean any obligation
of, or any obligation guaranteed by, the Corporation for the
repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, but shall not
include (i) any trade accounts payable in the ordinary course of
business, (ii) any such indebtedness that by its terms ranks pari
passu with or junior in right of payment to the Junior
Subordinated Debentures, (iii) all other debt securities, and
guarantees in respect of those debt securities, issued to any
other trust, or a trustee of such trust, partnership or other
entity affiliated with the Corporation that is a financing
vehicle of the Corporation (a "financing entity") in connection
with the issuance by such financing entity of equity securities
or other securities similar to the Capital Securities guaranteed
by the Corporation pursuant to an instrument that ranks pari
passu with or junior in right of payment to the Guarantee, (iv)
indebtedness to any employee of the Corporation, (v) any
indebtedness of the Corporation which when incurred was without
recourse to the Corporation, and (vi) any other indebtedness that
would otherwise qualify as "Indebtedness for Money Borrowed" to
the extent that such indebtedness by its terms ranks pari passu
with or junior in right of payment to any of the indebtedness
described in clause (i), (ii) or (iii) above.
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The Indenture places no limitation on the amount of
additional Senior Indebtedness that may be incurred by the
Corporation. The Corporation expects from time to time to incur
additional indebtedness constituting Senior Indebtedness.
Restrictions on Transfer
The Old Junior Subordinated Debentures were issued, and the
New Junior Subordinated Debentures will be issued, and may be
transferred only, in blocks having an aggregate principal amount
of not less than $100,000. Any such transfer of Junior
Subordinated Debentures in a block having an aggregate principal
amount of less than $100,000 shall be deemed to be void and of no
legal effect whatsoever. Any such transferee shall be deemed not
to be the holder of such Junior Subordinated Debentures for any
purpose, including but not limited to the receipt of payments on
such Junior Subordinated Debentures, and such transferee shall be
deemed to have no interest whatsoever in such Junior Subordinated
Debentures.
Governing Law
The Indenture and the Junior Subordinated Debentures are
governed by and will be construed in accordance with the laws of
the State of New York without regard to conflict of laws
principles.
Information Concerning the Debenture Trustee
Following the Exchange Offer and the qualification of the
Indenture under the Trust Indenture Act, the Debenture Trustee
shall have and be subject to all of the duties and
responsibilities specified with respect to an indenture trustee
under the Trust Indenture Act. Subject to such provisions, the
Debenture Trustee is under no obligation to exercise any of the
powers vested in it by the Indenture at the request of any holder
of Junior Subordinated Debentures, unless offered reasonable
indemnity by such holder against the costs, expenses and
liabilities which might be incurred thereby. The Debenture
Trustee is not required to expend or risk its own funds or
otherwise incur personal financial liability in the performance
of its duties if the Debenture Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it.
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DESCRIPTION OF GUARANTEE
The Old Guarantee was executed and delivered by the
Corporation concurrently with the issuance by the Trust of the
Old Capital Securities for the benefit of the holders from time
to time of the Capital Securities. The Chase Manhattan Bank acts
as indenture trustee ("Guarantee Trustee") under the Guarantee.
Promptly after the Expiration Date, the Corporation will exchange
the Old Guarantee for the New Guarantee. The New Guarantee has
been qualified under the Trust Indenture Act. This summary of
certain provisions of the Guarantee does not purport to be
complete and is subject to, and qualified in its entirety by
reference to, all of the provisions of the Guarantee, including
the definitions therein of certain terms, and the Trust Indenture
Act. The Guarantee Trustee holds the Guarantee for the benefit of
the holders of the Capital Securities.
General
The Corporation has irrevocably agreed to pay in full on a
subordinated basis, to the extent set forth herein, the Guarantee
Payments (as defined below) to the holders of the Capital
Securities, as and when due, regardless of any defense, right of
set-off or counterclaim that the Trust may have or assert other
than the defense of payment. The following payments with respect
to the Capital Securities, to the extent not paid by or on behalf
of the Trust (the "Guarantee Payments"), will be subject to the
Guarantee: (i) any accumulated and unpaid Distributions required
to be paid on Capital Securities, to the extent that the Trust
has funds on hand legally available therefor, (ii) the applicable
Redemption Price with respect to Capital Securities called for
redemption, to the extent that the Trust has funds on hand
legally available therefor, or (iii) upon a voluntary or
involuntary termination and liquidation of the Trust (unless the
Junior Subordinated Debentures are distributed to holders of
Capital Securities), the lesser of (a) the Liquidation
Distribution and (b) the amount of assets of the Trust remaining
available for distribution to holders of Capital Securities. The
Corporation's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the
Corporation to the holders of the Capital Securities or by
causing the Trust to pay such amounts to such holders.
The Guarantee ranks subordinate and junior in right of
payment to all Senior Indebtedness to the extent provided
therein. See "--Status of the Guarantee." Because the Corporation
is a holding company, the right of the Corporation to participate
in any distribution of assets of any subsidiary upon such
subsidiary's liquidation or reorganization or otherwise, is
subject to the prior claims of creditors of that subsidiary,
except to the extent the Corporation may itself be recognized as
a creditor of that subsidiary. Accordingly, the Corporation's
obligations under the Guarantee are effectively subordinated to
all existing and future liabilities of the Corporation's
subsidiaries, and claimants should look only to the assets of the
Corporation for payments thereunder. See "Description of the
Junior Subordinated Debentures--General." The Guarantee does not
limit the incurrence or issuance of other indebtedness of the
Corporation, including Senior Indebtedness, whether under the
Indenture, any other indenture that the Corporation may enter
into in the future or otherwise.
The Corporation has, through the Guarantee, the Trust
Agreement, the Junior Subordinated Debentures and the Indenture,
taken together, fully, irrevocably and unconditionally
guaranteed, on a subordinated basis, all of the Trust's
obligations under the Capital Securities. No single document
standing alone or operating in conjunction with fewer than all of
the other documents constitutes such guarantee. It is only the
combined operation of these documents that has the effect of
providing a full, irrevocable and unconditional subordinated
guarantee of the Trust's obligations under the Capital
Securities. See "Relationship Among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee."
Status of the Guarantee
The Guarantee constitutes an unsecured obligation of the
Corporation and ranks subordinate and junior in right of payment
to all Senior Indebtedness in the same manner as Junior
Subordinated Debentures, except in the case of a bankruptcy or
insolvency proceeding in respect of the Corporation, in which
case the Guarantee will rank subordinate and junior in right of
payment to all liabilities (other than Other Guarantees) of the
Corporation.
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The Guarantee ranks pari passu with all Other Guarantees
issued by the Corporation. The Guarantee constitutes a guarantee
of payment and not of collection (i.e., the guaranteed party may
institute a legal proceeding directly against the Corporation to
enforce its rights under the Guarantee without first instituting
a legal proceeding against any other person or entity). The
Guarantee is held for the benefit of the holders of the Capital
Securities. The Guarantee will not be discharged except by
payment of the Guarantee Payments in full to the extent not paid
by the Trust or upon distribution to the holders of the Capital
Securities of the Junior Subordinated Debentures. The Guarantee
does not place a limitation on the amount of additional Senior
Indebtedness that may be incurred by the Corporation. The
Corporation expects from time to time to incur additional
indebtedness constituting Senior Indebtedness.
Restrictions on Certain Payments
In the Guarantee, the Corporation covenants that, so long
as any Capital Securities remain outstanding, if there shall have
occurred any event that would constitute an event of default
under the Guarantee or the Trust Agreement, then the Corporation
will not (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with
respect to, any of the Corporation's capital stock (which
includes common and preferred stock), (ii) make any payment of
principal, interest or premium, if any, on or repay, repurchase
or redeem any debt securities of the Corporation (including any
Other Debentures) that rank pari passu with or junior in right of
payment to the Junior Subordinated Debentures or (iii) make any
guarantee payments with respect to any guarantee by the
Corporation of the debt securities of any subsidiary of the
Corporation (including any Other Guarantees) if such guarantee
ranks pari passu with or junior in right of payment to the Junior
Subordinated Debentures (other than (a) dividends or
distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, common stock of the
Corporation, (b) any declaration of a dividend in connection with
the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto, (c)
payments under the Guarantee, (d) as a result of a
reclassification of the Corporation's capital stock or the
exchange or conversion of one class or series of the
Corporation's capital stock for another class or series of the
Corporation's capital stock, (e) the purchase of fractional
interests in shares of the Corporation's capital stock pursuant
to the conversion or exchange provisions of such capital stock or
the security being converted or exchanged, and (f) purchases of
capital stock related to the issuance of capital stock or rights
under any of the Corporation's benefit plans for its directors,
officers or employees or any of the Corporation's dividend
reinvestment plans).
Events of Default
An event of default under the Guarantee will occur upon the
failure of the Corporation to perform any of its payment or other
obligations thereunder. The holders of a majority in Liquidation
Amount of the Capital Securities will have the right to direct
the time, method and place of conducting any proceeding for any
remedy available to the Guarantee Trustee in respect of the
Guarantee or to direct the exercise of any trust or power
conferred upon the Guarantee Trustee under the Guarantee.
Any holder of the Capital Securities may institute a legal
proceeding directly against the Corporation to enforce its rights
under the Guarantee without first instituting a legal proceeding
against the Trust, the Guarantee Trustee or any other person or
entity.
The Corporation, as guarantor, will be required to file
annually with the Guarantee Trustee a certificate as to whether
or not the Corporation is in compliance with all of the
conditions and covenants applicable to it under the Guarantee.
Amendments and Assignment
Except with respect to any changes that do not materially
adversely affect the rights of holders of the Capital Securities
(in which case no vote will be required), the Guarantee may not
be amended without the prior approval of the holders of a
majority of the Liquidation Amount of such outstanding Capital
Securities. The manner of obtaining any such approval will be as
set forth under "Description of Capital Securities--Voting
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Rights; Amendment of the Trust Agreement." All guarantees and
agreements contained in the Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the
Corporation and shall inure to the benefit of the holders of the
Capital Securities then outstanding.
Termination of the Guarantee
The Guarantee will terminate and be of no further force and
effect upon full payment of the applicable Redemption Price of
the Capital Securities, upon full payment of the Liquidation
Amount payable upon liquidation of the Trust or upon distribution
of Junior Subordinated Debentures to the holders of the Capital
Securities. The Guarantee will continue to be effective or will
be reinstated, as the case may be, if at any time any holder of
the Capital Securities must restore payment of any sums paid
under the Capital Securities or the Guarantee.
Information Concerning the Guarantee Trustee
The Guarantee Trustee, other than during the occurrence and
continuance of a default by the Corporation in performance of the
Guarantee, undertakes to perform only such duties as are
specifically set forth in the Guarantee and, after default with
respect to the Guarantee, must exercise the same degree of care
and skill as a prudent person would exercise or use in the
conduct of his or her own affairs. Subject to this provision, the
Guarantee Trustee is under no obligation to exercise any of the
powers vested in it by the Guarantee at the request of any holder
of the Capital Securities unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might
be incurred thereby.
Governing Law
The Guarantee is governed by and will be construed in
accordance with the laws of the State of New York without regard
to conflict of laws principles.
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RELATIONSHIP AMONG THE CAPITAL SECURITIES,
THE JUNIOR SUBORDINATED DEBENTURES AND THE GUARANTEE
Full and Unconditional Guarantee
Payments of Distributions and other amounts due on the
Capital Securities (to the extent the Trust has funds on hand
legally available for the payment of such Distributions) are
irrevocably guaranteed by the Corporation as and to the extent
set forth under "Description of Guarantee." Taken together, the
Corporation's obligations under the Junior Subordinated
Debentures, the Indenture, the Trust Agreement and the Guarantee
provide, in the aggregate, a full, irrevocable and unconditional
guarantee of payments of Distributions and other amounts due on
the Capital Securities. No single document standing alone or
operating in conjunction with fewer than all of the other
documents constitutes such guarantee. It is only the combined
operation of these documents that has the effect of providing a
full, irrevocable and unconditional guarantee of the Trust's
obligations under the Capital Securities. If and to the extent
that the Corporation does not make the required payments on the
Junior Subordinated Debentures, the Trust will not have
sufficient funds to make the related payments, including
Distributions, on the Capital Securities. The Guarantee will not
cover any such payment when the Trust does not have sufficient
funds on hand legally available therefor. In such event, the
remedy of a holder of Capital Securities is to institute a Direct
Action. The obligations of the Corporation under the Guarantee
are subordinate and junior in right of payment to all Senior
Indebtedness.
Sufficiency of Payments
As long as payments of interest and other payments are made
when due on the Junior Subordinated Debentures, such payments
will be sufficient to cover Distributions and other payments due
on the Capital Securities, primarily because: (i) the aggregate
principal amount or Prepayment Price of the Junior Subordinated
Debentures will be equal to the sum of the Liquidation Amount or
Redemption Price, as applicable, of the Trust Securities; (ii)
the interest rate and interest and other payment dates on the
Junior Subordinated Debentures match the Distribution rate and
Distribution and other payment dates for the Trust Securities;
(iii) the Corporation, as Sponsor, shall pay for all and any
costs, expenses and liabilities of the Trust except the Trust's
obligations to holders of Trust Securities under such Trust
Securities; and (iv) the Trust Agreement provides that the Trust
is not authorized to engage in any activity that is not
consistent with the limited purposes thereof.
Enforcement Rights of Holders of Capital Securities
A holder of any Capital Security may institute a legal
proceeding directly against the Corporation to enforce its rights
under the Guarantee without first instituting a legal proceeding
against the Guarantee Trustee, the Trust or any other person or
entity. A default or event of default under any Senior
Indebtedness would not constitute a default or Event of Default
under the Trust Agreement. However, in the event of payment
defaults under, or acceleration of, Senior Indebtedness, the
subordination provisions of the Indenture provide that no
payments may be made in respect of the Junior Subordinated
Debentures until such Senior Indebtedness has been paid in full
or any payment default thereunder has been cured or waived.
Failure to make required payments on Junior Subordinated
Debentures would constitute an Event of Default under the Trust
Agreement.
Rights Upon Termination
Unless the Junior Subordinated Debentures are distributed
to holders of the Trust Securities, upon any voluntary or
involuntary termination and liquidation of the Trust, after
satisfaction of liabilities to creditors of the Trust (to the
extent not satisfied by the Corporation) as provided by
applicable law, the holders of the Trust Securities will be
entitled to receive, out of assets held by the Trust, the
Liquidation Distribution in cash. See "Description of Capital
Securities--Liquidation of the Trust and Distribution of Junior
Subordinated Debentures." Upon any voluntary or involuntary
liquidation or bankruptcy of the Corporation, the Property
Trustee, as holder of the Junior Subordinated Debentures, would
be a subordinated creditor of the Corporation, subordinated in
right of payment to all Senior Indebtedness as set forth in the
Indenture, but entitled to receive payment in full of
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principal (and premium, if any) and interest, before any stockholders
of the Corporation receive payments or distributions. Since the
Corporation is the guarantor under the Guarantee and has agreed
to pay for all costs, expenses and liabilities of the Trust
(other than the Trust's obligations to the holders of its Trust
Securities), the positions of a holder of Trust Securities and a
holder of Junior Subordinated Debentures relative to stockholders
of the Corporation in the event of liquidation or bankruptcy of
the Corporation are expected to be substantially the same.
CERTAIN FEDERAL INCOME TAX CONSEQUENCES
General
In the opinion of Cleary, Gottlieb, Steen & Hamilton,
counsel to the Corporation and the Trust ("Tax Counsel"), the
following is a summary of certain of the material United States
federal income tax consequences of the purchase, ownership and
disposition of Capital Securities held as capital assets by a
United States Holder who purchased Old Capital Securities upon
initial issuance. As used herein, a "United States Holder" means
a holder of a Capital Security that is a citizen or resident of
the United States or a U.S. domestic corporation or that
otherwise will be subject to United States federal income
taxation on a net income basis in respect of the Capital
Securities. This summary does not deal with special classes of
holders such as banks, thrifts, real estate investment trusts,
regulated investment companies, insurance companies, dealers in
securities or currencies, tax-exempt investors, or persons that
will hold the Capital Securities as a position in a "straddle,"
as part of a "synthetic security" or "hedge," as part of a
"conversion transaction" or other integrated investment, or as
other than a capital asset. This summary also does not address
the tax consequences to persons that have a functional currency
other than the U.S. dollar or the tax consequences to
shareholders, partners or beneficiaries of a holder of Capital
Securities. Further, it does not include any description of any
alternative minimum tax consequences or the tax laws of any state
or local government or of any foreign government that may be
applicable to the Capital Securities. This summary is based on
the Internal Revenue Code of 1986, as amended (the "Code"),
Treasury regulations promulgated thereunder and on the
administrative and judicial interpretations thereof, as of the
date hereof, all of which are subject to change, possibly on a
retroactive basis.
Exchange of Capital Securities
The exchange of the Old Capital Securities for the New
Capital Securities pursuant to the Exchange Offer will not
constitute a taxable event to United States Holders.
Consequently, (i) no gain or loss will be realized by a United
States Holder upon receipt of a New Capital Security; (ii) the
holding period of the New Capital Security will include the
holding period of the Old Capital Security exchanged therefor;
and (iii) the adjusted tax basis of the New Capital Security will
be the same as the adjusted tax basis of the Old Capital Security
exchanged therefor immediately before the exchange.
Classification of the Junior Subordinated Debentures
Under current law and assuming full compliance with the
terms of the Indenture (and certain other documents), the Junior
Subordinated Debentures will be classified for United States
federal income tax purposes as indebtedness of the Corporation.
By acceptance of a Capital Security, each holder covenants to
treat the Junior Subordinated Debentures as indebtedness and the
Capital Securities as evidence of an indirect beneficial
ownership interest in the Junior Subordinated Debentures. No
assurance can be given, however, that such position will not be
challenged by the Internal Revenue Service (the "IRS") or, if
challenged, that such a challenge will not be successful. The
remainder of this discussion assumes that the Junior Subordinated
Debentures will be classified as indebtedness of the Corporation
for United States federal income tax purposes.
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Classification of the Trust
Under current law and assuming full compliance with the
terms of the Trust Agreement and the Indenture (and certain other
documents), the Trust will be classified for United States
federal income tax purposes as a grantor trust and not as an
association taxable as a corporation.
An opinion of Tax Counsel, however, is not binding on the
IRS or the courts. Prospective investors should note that no
rulings have been or are expected to be sought from the IRS with
respect to any of these issues and no assurance can be given that
the IRS will not take contrary positions. Moreover, no assurance
can be given that the opinion expressed herein will not be
challenged by the IRS or, if challenged, that such a challenge
would not be successful.
Interest Income and Original Issue Discount
Under recently issued Treasury regulations (the
"Regulations") applicable to debt instruments issued on or after
August 13, 1996, a "remote" contingency that stated interest will
not be timely paid will be ignored in determining whether a debt
instrument is issued with OID. The Corporation believes that the
likelihood of its exercising its option to defer payments of
interest is "remote" since exercising that option would, among
other things, prevent the Corporation from declaring dividends on
any class of its equity securities. Accordingly, the Corporation
intends to take the position that the Junior Subordinated
Debentures will not be considered to be issued with OID and,
accordingly, stated interest on the Junior Subordinated
Debentures generally will be taxable to a holder as ordinary
income at the time it is paid or accrued in accordance with such
holder's method of accounting.
Under the Regulations, if the Corporation were to exercise
its option to defer payments of interest, the Junior Subordinated
Debentures would at that time be treated as issued with OID, and
all stated interest on the Junior Subordinated Debentures would
thereafter be treated as OID as long as the Junior Subordinated
Debentures remain outstanding. In such event, all of a holder's
taxable interest income with respect to the Junior Subordinated
Debentures would thereafter be accounted for on an economic
accrual basis regardless of such holder's method of tax
accounting, and actual distributions of stated interest would not
be reported as taxable income. Consequently, a holder of Capital
Securities would be required to include in gross income OID even
though the Corporation would not make actual cash payments during
an Extension Period. Moreover, under the Regulations, if the
option to defer the payment of interest was determined not to be
"remote," the Junior Subordinated Debentures would be treated as
having been originally issued with OID. In such event, all of a
holder's taxable interest income with respect to the Junior
Subordinated Debentures would be accounted for on an economic
accrual basis regardless of such holder's method of tax
accounting, and actual distributions of stated interest would not
be reported as taxable income.
The Regulations have not yet been addressed in any rulings
or other interpretations by the IRS, and it is possible that the
IRS could take a position contrary to the interpretation herein.
Because income on the Capital Securities will constitute
interest or OID, corporate holders of the Capital Securities will
not be entitled to a dividends-received deduction with respect to
any income recognized with respect to the Capital Securities.
Receipt of Junior Subordinated Debentures or Cash Upon Liquidation
of the Trust
The Corporation has the right at any time to liquidate the
Trust and cause the Junior Subordinated Debentures to be
distributed to the holders of the Trust Securities. Under current
law, such a distribution, for United States federal income tax
purposes, would be treated as a nontaxable event to each holder,
and each holder would receive an aggregate tax basis in the
Junior Subordinated Debentures equal to such holder's aggregate
tax basis in its Capital Securities. A holder's holding period in
the Junior Subordinated Debentures so received in liquidation of
the Trust would include the period during which the Capital
Securities were held by such holder. If, however, the Trust is
characterized for United States federal income tax purposes as an
association taxable as a
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corporation at the time of its dissolution, the distribution
of the Junior Subordinated Debentures may constitute a taxable
event to holders of Capital Securities and a holder's holding
period in Junior Subordinated Debentures would begin on the date
such Junior Subordinated Debentures were received.
Under certain circumstances described herein (see
"Description of Capital Securities"), the Junior Subordinated
Debentures may be redeemed for cash and the proceeds of such
redemption distributed to holders in redemption of their Capital
Securities. Under current law, such a redemption would, for
United States federal income tax purposes, constitute a taxable
disposition of the redeemed Capital Securities, and a holder
could recognize gain or loss as if it sold such redeemed Capital
Securities for cash. See "--Sales of Capital Securities."
Sales of Capital Securities
A holder that sells Capital Securities (including any
redemption of the Capital Securities by the Corporation) will
recognize gain or loss equal to the difference between its
adjusted tax basis in the Capital Securities and the amount
realized on the sale of such Capital Securities (other than with
respect to accrued and unpaid interest which has not yet been
included in income, which will be treated as ordinary income). A
holder's adjusted tax basis in the Capital Securities generally
will be its initial purchase price increased by OID (if any)
previously includible in such holder's gross income to the date
of disposition and decreased by payments (if any) received on the
Capital Securities in respect of OID. Such gain or loss generally
will be capital gain or loss and generally will be long-term
capital gain or loss if the Capital Securities have been held by
such holder for more than one year. The Taxpayer Relief Act of
1997 generally reduces the tax rates on capital gains of
individuals in respect of capital assets held for more than 18
months. Holders are advised to consult with their own tax
advisors as to the consequences in their particular circumstances
of the capital gain provisions of the Taxpayer Relief Act of
1997.
The Capital Securities may trade at a price that does not
accurately reflect the value of accrued but unpaid interest with
respect to the underlying Junior Subordinated Debentures. A
holder who uses the accrual method of accounting for tax purposes
(and a cash method holder, if the Junior Subordinated Debentures
are deemed to have been issued with OID) who disposes of his
Capital Securities between record dates for payments of
distributions thereon will be required to include accrued but
unpaid interest on the Junior Subordinated Debentures through the
date of disposition in income as ordinary income (i.e., interest
or, possibly, OID), and to add such amount to his adjusted tax
basis in his pro rata share of the underlying Junior Subordinated
Debentures deemed disposed of. To the extent the selling price is
less than the holder's adjusted tax basis (which will include all
accrued but unpaid interest) a holder will recognize a capital
loss. Subject to certain limited exceptions, capital losses
cannot be applied to offset ordinary income for United States
federal income tax purposes.
United States Alien Holders
For purposes of this discussion, a "United States Alien
Holder" is a holder of Capital Securities that is a nonresident
alien individual or a foreign corporation. Under present United
States federal income tax laws: (i) payments by the Trust or any
of its paying agents to any holder of a Capital Security who or
which is a United States Alien Holder will not be subject to
United States federal withholding tax; provided that, (a) the
beneficial owner of the Capital Security does not actually or
constructively own 10 percent or more of the total combined
voting power of all classes of stock of the Corporation entitled
to vote, (b) the beneficial owner of the Capital Security is not
a controlled foreign corporation that is related to the
Corporation through stock ownership, and (c) either (A) the
beneficial owner of the Capital Security certifies to the Trust
or its agent, under penalties of perjury, that it is not a United
States Holder and provides its name and address or (B) a
securities clearing organization, bank or other financial
institution that holds customers' securities in the ordinary
course of its trade or business (a "Financial Institution"), and
holds the Capital Security in such capacity, certifies to the
Trust or its agent, under penalties of perjury, that such
statement has been received from the beneficial owner by it or by
a Financial Institution between it and the beneficial owner and
furnishes the Trust or its agent with a copy thereof; and (ii) a
United States Alien Holder of a Capital Security will generally
not be subject to United States federal withholding tax on any
gain realized upon the sale or other disposition of a Capital
Security provided the gain is not effectively connected with the
conduct of a trade or business in the United States by the United
States Alien Holder.
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<PAGE>
The exchange of the Old Capital Securities for the New
Capital Securities in the Exchange Offer should not constitute a
taxable event to United States Alien Holders.
Information Reporting to Holders
Generally, income on the Capital Securities will be
reported to holders on Forms 1099, which forms should be mailed
to holders of Capital Securities by January 31 following each
calendar year.
Backup Withholding
Payments made on, and proceeds from the sale of, the
Capital Securities may be subject to a "backup" withholding tax
of 31 percent unless the holder complies with certain
identification requirements. Any withheld amounts will be allowed
as a credit against the holder's United States federal income
tax, provided the required information is provided to the IRS.
New Withholding Regulations
On October 6, 1997, the Treasury Department issued new
regulations (the "New Regulations") which may make certain
modifications to the withholding, backup withholding and
information reporting rules described above. The New Regulations
attempt to unify certification requirements and modify reliance
standards. The New Regulations will generally be effective for
payments made after December 31, 1998, subject to certain
transition rules. Prospective investors are urged to consult
their own tax advisor regarding the New Regulations.
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH
ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY AND MAY NOT BE
APPLICABLE DEPENDING UPON A HOLDER'S PARTICULAR SITUATION.
HOLDERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION
OF THE CAPITAL SECURITIES, INCLUDING THE TAX CONSEQUENCES UNDER
STATE, LOCAL, FOREIGN AND OTHER TAX LAWS AND THE POSSIBLE EFFECTS
OF CHANGES IN UNITED STATES FEDERAL OR OTHER TAX LAWS.
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ERISA CONSIDERATIONS
Each fiduciary of a pension, profit-sharing or other
employee benefit plan subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") (a "Plan"), should
consider the fiduciary standards of ERISA in the context of the
Plan's particular circumstances before authorizing an investment
in the Capital Securities. Accordingly, among other factors, the
fiduciary should consider whether the investment would satisfy
the prudence and diversification requirements of ERISA and would
be consistent with the documents and instruments governing the
Plan.
Section 406 of ERISA and Section 4975 of the Code prohibit
Plans, as well as individual retirement accounts and Keogh plans
subject to Section 4975 of the Code (also "Plans"), from engaging
in certain transactions involving "plan assets" with persons who
are "parties in interest" under ERISA or "disqualified persons"
under the Code ("Parties in Interest") with respect to such
Plans. A violation of these "prohibited transaction" rules may
result in an excise tax or other liabilities under ERISA and/or
Section 4975 of the Code for such persons, unless exemptive
relief is available under an applicable statutory or
administrative exemption. Employee benefit plans that are
governmental plans (as defined in Section 3(32) of ERISA),
certain church plans (as defined in Section 3(33) of ERISA) and
foreign plans (as described in Section 4(b)(5) of ERISA) are not
subject to the requirements of ERISA or Section 4975 of the Code.
Under a regulation (the "Plan Assets Regulation") issued by
the U.S. Department of Labor (the "DOL"), the assets of the Trust
would be deemed to be "plan assets" of a Plan for purposes of
ERISA and Section 4975 of the Code if "plan assets" of the Plan
were used to acquire an equity interest in such Trust and no
exception were applicable under the Plan Assets Regulation. An
"equity interest" is defined under the Plan Assets Regulation as
any interest in an entity other than an instrument which is
treated as indebtedness under the applicable local law and which
has no substantial equity features and specifically includes a
beneficial interest in a trust.
Pursuant to an exception contained in the Plan Assets
Regulation, the assets of the Trust would not be deemed to be
"plan assets" of investing Plans if, immediately after the most
recent acquisition of any equity interest in the Trust, less than
25% of the value of each class of equity interests in the Trust
were held by Plans, other employee benefit plans not subject to
ERISA or Section 4975 of the Code (such as governmental, church
and foreign plans), and entities holding assets deemed to be
"plan assets" of any Plan (collectively, "Benefit Plan
Investors"). No assurance can be given that the value of the
Capital Securities held by Benefit Plan Investors will be less
than 25% of the total value of such Capital Securities at the
completion of the Exchange Offer or thereafter, and no monitoring
or other measures will be taken with respect to the satisfaction
of the conditions to this exception. All of the Common Securities
have been purchased and will be held by the Corporation.
Certain transactions involving the Trust could be deemed to
constitute direct or indirect prohibited transactions under ERISA
and Section 4975 of the Code with respect to a Plan if the
Capital Securities of the Trust were acquired with "plan assets"
of such Plan and assets of the Trust were deemed to be "plan
assets" of Plans investing in the Trust. For example, if the
Corporation is a Party in Interest with respect to an investing
Plan (either directly or by reason of its ownership of its
subsidiaries), extensions of credit between the Corporation and
the Trust (as represented by the Junior Subordinated Debentures
and the Guarantee) would likely be prohibited by Section
406(a)(1)(B) of ERISA and Section 4975(c)(1)(B) of the Code,
unless exemptive relief were available under an applicable
administrative exemption (see below).
The DOL has issued five prohibited transaction class
exemptions ("PTCEs") that may provide exemptive relief for direct
or indirect prohibited transactions resulting from the purchase
or holding of the Capital Securities, assuming that assets of the
Trust were deemed to be "plan assets" of Plans investing in the
Trust (see above). Those class exemptions are PTCE 96-23 (for
certain transactions determined by in-house asset managers), PTCE
95-60 (for certain transactions involving insurance company
general accounts), PTCE 91-38 (for certain transactions involving
bank collective investment funds), PTCE 90-1 (for certain
transactions involving insurance company pooled separate
accounts), and PTCE 84-14 (for certain transactions determined by
independent qualified professional asset managers).
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<PAGE>
Because the Capital Securities may be deemed to be equity
interests in the Trust for purposes of applying ERISA and Section
4975 of the Code, the Capital Securities may not be purchased or
held by any Plan, any entity whose underlying assets include
"plan assets" by reason of any Plan's investment in the entity (a
"Plan Asset Entity") or any person investing "plan assets" of any
Plan, unless such purchaser or holder is eligible for the
exemptive relief available under PTCE 96-23, 95-60, 91-38, 90-1
or 84-14. Any purchaser or holder of the Capital Securities or
any interest therein will be deemed to have represented by its
purchase and holding thereof that it either (a) is not a Plan or
a Plan Asset Entity and is not purchasing such securities on
behalf of or with "plan assets" of any Plan or (b) is eligible
for the exemptive relief available under PTCE 96-23, 95-60,
91-38, 90-1 or 84-14 with respect to such purchase or holding.
Any purchaser or holder of the Old Capital Securities or any
interest therein will be deemed to have represented by its
exchange thereof for New Capital Securities in the Exchange Offer
that it either (a) is not a Plan or a Plan Asset Entity and the
Old Capital Securities being exchanged by it are not "plan
assets" of any Plan or (b) is eligible for the exemptive relief
available under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14 with
respect to such exchange.
Due to the complexity of these rules and the penalties that
may be imposed upon persons involved in non-exempt prohibited
transactions, it is particularly important that fiduciaries or
other persons considering purchasing Capital Securities on behalf
of or with "plan assets" of any Plan consult with their counsel
regarding the potential consequences if the assets of the Trust
were deemed to be "plan assets" and the availability of exemptive
relief under PTCE 96-23, 95-60, 91-38, 90-1 or 84-14.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Capital Securities for
its own account pursuant to the Exchange Offer must acknowledge
that it will deliver a prospectus in connection with any resale
of such New Capital Securities. This Prospectus, as it may be
amended or supplemented from time to time, may be used by
Exchanging Dealers in connection with resales of New Capital
Securities received in exchange for Old Capital Securities where
such Old Capital Securities were acquired as a result of
market-making activities or other trading activities. The
Corporation and the Trust have agreed that, starting on the date
on which the Exchange Offer is consummated and ending on the
close of business one year after such date, they will make this
Prospectus, as amended or supplemented, available to any
Exchanging Dealer for use in connection with any such resale. In
addition, until ________, 1997, all dealers effecting
transactions in the New Capital Securities may be required to
deliver a prospectus.
The Corporation and the Trust will not receive any proceeds
from any sale of New Capital Securities by broker-dealers. New
Capital Securities received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market,
in negotiated transactions, through the writing of options on the
New Capital Securities or a combination of such methods of
resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to
or through brokers or dealers who may receive compensation in the
form of commissions or concessions from any such broker-dealer
and/or the purchasers of any such New Capital Securities. Any
broker-dealer that resells New Capital Securities that were
received by it for its own account pursuant to the Exchange Offer
and any broker or dealer that participates in a distribution of
such New Capital Securities may be deemed to be an "underwriter"
within the meaning of the Securities Act and any profit on any
such resale of New Capital Securities and any commissions or
concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of
Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a broker- dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the
Securities Act.
For a period of one year after the date on which the
Exchange Offer is consummated, the Corporation and the Trust will
promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any broker-dealer
that requests such documents in the Letter of Transmittal. The
Corporation and the Trust have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one
counsel for the Holders of the New Capital Securities) other than
underwriting commissions or discounts of any brokers or
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<PAGE>
dealers and will indemnify the Holders of the New Capital
Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
LEGAL MATTERS
The validity of the New Junior Subordinated Debentures and
the New Guarantee and certain matters related thereto will be
passed upon for the Corporation and certain United States federal
income taxation matters will be passed upon for the Corporation
and the Trust by Cleary, Gottlieb, Steen & Hamilton, New York,
New York. The validity of the New Capital Securities will be
passed upon by Richards, Layton & Finger, P.A., special Delaware
Counsel to the Corporation and the Trust.
EXPERTS
The consolidated financial statements of the Corporation
and subsidiary as of December 31, 1996 and 1995, and for each of
the years in the three-year period ended December 31, 1996, have
been incorporated herein by reference to the Corporation's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996,
in reliance upon the report, also incorporated by reference
herein, of KPMG Peat Marwick LLP, independent certified public
accountants, upon the authority of such firm as experts in
accounting and auditing.
MAP OF ALBANK'S BRANCHES
68
<PAGE>
=====================================================================
No dealer, salesperson or any other individual has been
authorized to give any information or to make any representations
other than those contained or incorporated by reference in this
Prospectus in connection with this Exchange Offer and, if given
or made, such information or representations must not be relied
upon as having been authorized by the Corporation or the Trust.
Neither the delivery of this Prospectus nor the accompanying
Letter of Transmittal nor any exchange made pursuant hereto shall
under any circumstance create an implication that there has been
no change in the affairs of the Corporation or the Trust since
the date hereof. This Prospectus does not constitute an offer or
solicitation by anyone in any jurisdiction in which such offer or
solicitation is not authorized or in which the person making such
offer or solicitation is not qualified to do so or to anyone to
whom it is unlawful to make such offer or solicitation.
-------------------------
TABLE OF CONTENTS
Page
Available Information........................... 7
Incorporation of Certain Documents
by Reference.................................... 7
Summary......................................... 9
Risk Factors.................................... 16
ALBANK Financial Corporation.................... 21
ALBANK Summary Results.......................... 23
Accounting Treatment............................ 24
Use of Proceeds................................. 24
Ratio of Earnings to Fixed Charges.............. 25
Capitalization.................................. 25
Selected Consolidated Financial
Information..................................... 27
ALBANK Capital Trust I.......................... 29
The Exchange Offer.............................. 29
Description of Capital Securities............... 38
Description of Junior Subordinated
Debentures...................................... 48
Description of Guarantee........................ 58
Relationship Among the Capital Securities,
the Junior Subordinated Debentures
and the Guarantee............................... 61
Certain Federal Income Tax Consequences......... 62
ERISA Considerations............................ 66
Plan of Distribution............................ 67
Legal Matters................................... 68
Experts......................................... 68
$50,000,000
ALBANK Capital Trust I
9.27% Capital Securities,
Series B
fully and unconditionally guaranteed,
as described herein, by
ALBANK
Financial
Corporation
--------------------------
PROSPECTUS
DATED __________, 1997
--------------------------
=====================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 20. Indemnification of Directors and Officers.
(i) Section 102(b)(7) of the General Corporation Law of the
State of Delaware provides that a Delaware corporation may
include in its certificate of incorporation a provision
eliminating or limiting the personal liability of a director to
the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, provided that such
provision may not eliminate or limit the liability of a director
for any breach of the director's duty of loyalty to the
corporation or its stockholders, for actions or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, for the payment of unlawful dividends, or for
any transaction from which the director derived an improper
personal benefit. Article Eleventh of the Certificate of
Incorporation of ALBANK contains a provision limiting the
personal liability of a director to ALBANK and its stockholders
for monetary damages for a breach of fiduciary duty as a director
to the full extent permitted by law.
(ii) Additionally, Section 145, "Indemnification of
Officers, Directors, Employees, and Agents; Insurance", of the
General Corporation Law of the State of Delaware provides as
follows:
"(a) A corporation may indemnify any 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, administrative or
investigative (other than an action by or in the right of
the corporation) by reason of the fact that he 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, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees),
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 corporation, 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 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 corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) A corporation may indemnify any 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
II-1
<PAGE>
or in the right of the corporation to procure a judgment in
its favor by reason of the fact that he 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, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees)
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 interest of the
corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of
Chancery 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
the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a director, officer, employee
or agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding
referred to in subsections (a) and (b) of this section, or
in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred by him in connection
therewith.
(d) Any indemnification under subsections (a) and (b)
of this section (unless ordered by a court) shall be made
by the corporation only as authorized in the specific case
upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set
forth in subsections (a) and (b) of this section. Such
determination shall be made (1) by a majority vote of the
directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) if there
are no such directors, or if such directors so direct, by
independent legal counsel in a written opinion, or (3) by
the stockholders.
(e) Expenses (including attorneys' fees) incurred by
an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding
may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding upon receipt
of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and
agents may be so paid upon such terms and conditions, if
any, as the board of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections
of this section shall not be deemed exclusive of any other
rights to which those seeking indemnification or
advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested
II-2
<PAGE>
directors or otherwise, both as to action in his official
capacity and as to action in another capacity while holding
such office.
(g) A corporation shall have power 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, partnership, joint venture, trust or other
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 have
the power to indemnify him against such liability under
this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any
constituent of a constituent) absorbed in a consolidation
or merger which, if its separate existence had continued,
would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any
person who is or was a director, officer, employee or agent
of such constituent corporation, or is or was serving at
the request of such constituent corporation as director,
officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise,
shall stand in the same position under this section with
respect to the resulting or surviving corporation as he
would have with respect to such constituent corporation if
its separate existence had continued.
(i) For purposes of this section, references to "other
enterprises" shall include employee benefit plans;
references to "fines" shall include any excise taxes
assessed on a person with respect to any employee benefit
plan; and references to "serving at the request of the
corporation" shall include any service as a director,
officer, employee or agent of the corporation which imposes
duties on, or involves services by, such director, officer,
employee or agent with respect to an employee benefit plan,
its participants or beneficiaries; and a person who acted
in good faith and in a manner he reasonably believed to be
in the interest of the participants and beneficiaries of an
employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the
corporation" as referred to in this section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall,
unless otherwise provided when authorized or ratified,
continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit
of the heirs, executors and administrators of such a
person.
(k) The Court of Chancery is hereby vested with
exclusive jurisdiction to hear and determine all actions
for advancement of expenses or indemnification brought
under this section or under any bylaw, agreement, vote of
stockholders or disinterested directors, or otherwise. The
Court of Chancery may summarily determine a corporation's
obligation to advance expenses (including attorneys' fees).
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<PAGE>
(iii) Article Tenth of the Amended and Restated Certificate
of Incorporation of ALBANK provides for indemnification of
directors and officers of ALBANK against liability they may incur
in their capacities as such to the full extent permitted under
Delaware law.
(iv) ALBANK maintains an insurance policy that insures the
directors and officers of ALBANK against loss arising from any
claim or claims made against such directors or officers,
individually or collectively, by reason of certain wrongful acts
such as breach of duty, neglect, error, misstatement, misleading
statement, omission or act by the directors or officers of ALBANK
in their respective capacities as such. The policy also insures
ALBANK against loss for which ALBANK has indemnified the
directors or officers pursuant to law or contract or the
Certificate of Incorporation or by-laws of ALBANK arising from
any claim against any of the directors or officers of ALBANK by
reason of the wrongful acts described above. The policy does not
insure ALBANK's directors and officers against loss in connection
with any claim relating to, among other things, any criminal or
deliberate fraudulent act or any accounting for profits for the
purchase or sale of securities of ALBANK within the meaning of
Section 16(b) of the Exchange Act.
(v) Under the Trust Agreement, ALBANK has agreed to
indemnify each of the Trustees of the Trust, and to hold the
Trustees harmless against, any loss, liability, damage, claim or
expense incurred without negligence or bad faith on the Trustees'
part, arising out of or in connection with the acceptance or
administration of the Trust Agreement, including the costs and
expenses of defending themselves against any claim or liability
in connection with the exercise or performance of any of their
powers or duties under the Trust Agreement.
Item 21. Exhibits and Financial Statement Schedules.
Exhibit No. Description
- ----------- -----------
4.1 Indenture, dated as of June 6, 1997, between ALBANK
and The Chase Manhattan Bank, as Trustee, in
respect of ALBANK's 9.27% Junior Subordinated
Debentures due 2027.*
4.2 Form of ALBANK's 9.27% Junior Subordinated Debentures due 2027
(included in the Indenture filed as Exhibit 4.1 to this
Registration Statement).*
4.3 Certificate of Trust of ALBANK Capital Trust I, dated
April 3, 1997.*
4.4 Amended and Restated Declaration of Trust of ALBANK Capital
Trust I, dated as of June 6, 1997, among ALBANK, as sponsor,
the Administrators thereof, Chase Manhattan Bank Delaware, as
Delaware Trustee, The Chase Manhattan Bank, as Property Trustee,
and the holders from time to time of undivided interests in
the assets of ALBANK Capital Trust I.*
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<PAGE>
Exhibit No. Description
- ----------- -----------
4.5 Form of Capital Security Certificate for ALBANK
Capital Trust I (included in the Amended and
Restated Declaration of Trust filed as Exhibit 4.4
to this Registration Statement).*
4.6 Series A Capital Securities Guarantee Agreement,
dated as of June 6, 1997, between ALBANK and The
Chase Manhattan Bank, as Guarantee Trustee.*
4.7 Form of Series B Capital Securities Guarantee
Agreement, dated as of ________ __, 1997, between
ALBANK and The Chase Manhattan Bank, as Guarantee
Trustee.*
4.8 Registration Rights Agreement, dated June 6, 1997,
among ALBANK, ALBANK Capital Trust I and Merrill
Lynch, Pierce, Fenner & Smith Incorporated, as
Representative of the Initial Purchasers.*
5.1 Opinion of Richards, Layton & Finger, P.A. as to
the validity of the New Capital Securities to be
issued by ALBANK Capital Trust I.**
5.2 Opinion of Cleary, Gottlieb, Steen & Hamilton as
to the validity of the New Junior Subordinated
Debentures and the New Guarantee to be issued
by ALBANK.**
8 Opinion of Cleary, Gottlieb, Steen & Hamilton
regarding certain federal income tax matters.**
12.1 Computation of ratio of earnings to fixed charges.**
23.1 Consent of KPMG Peat Marwick LLP.*
23.2 Consent of Richards, Layton & Finger, P.A.
(included in Exhibit 5.1 to this Registration
Statement).**
23.3 Consent of Cleary, Gottlieb, Steen & Hamilton
(included in Exhibit 5.2 to this Registration
Statement).**
23.4 Consent of Cleary, Gottlieb, Steen & Hamilton
(included in Exhibit 8 to this Registration
Statement).**
24 Powers of Attorney.*
25.1 Form T-1 Statement of Eligibility of The Chase
Manhattan Bank to act as trustee under the
Indenture.*
25.2 Form T-1 Statement of Eligibility of The Chase
Manhattan Bank to act as trustee under the Amended
and Restated Declaration of Trust.*
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<PAGE>
Exhibit No. Description
- ----------- -----------
25.3 Form T-1 Statement of Eligibility of The Chase
Manhattan Bank to act as trustee under the Guarantee
for the benefit of the holders of Capital Securities.*
99.1 Form of Letter of Transmittal.*
99.2 Form of Notice of Guaranteed Delivery.*
99.3 Form of Exchange Agent Agreement.*
- --------
* Filed herewith.
** To be filed by amendment.
Item 22. Undertakings.
(a) Each of the undersigned registrants hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual
report pursuant to Section 13(a) or 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.
(b) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of a registrant pursuant to the
foregoing provisions, or otherwise, each of the undersigned
registrants has 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 a registrant
of expenses incurred or paid by a director, officer or
controlling director, officer or controlling person of a
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, each
of the undersigned registrants will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the act and will be governed by the final
adjudication of such issue.
(c) Each of the undersigned registrants hereby undertakes
to respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13
of this Form, within one business day of receipt of such request,
and to send the incorporated documents by first class mail or
other equally prompt means. This includes
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<PAGE>
information contained in documents filed subsequent to the
effective date of the registration statement through the date of
responding to the request.
(d) Each of the undersigned registrants hereby undertakes
to supply by means of post-effective amendment all information
concerning a transaction, and the company being acquired involved
therein, that was not the subject of and included in the
registration statement when it became effective.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Albany, State of New York, on
October 29, 1997.
ALBANK FINANCIAL CORPORATION
(Registrant)
By /s/ Herbert G. Chorbajian
-------------------------
Herbert G. Chorbajian
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed below by the
following persons in the capacities and on the dated indicated.
Name Title Date
---- ----- ----
/s/ Herbert G. Chorbajian Chairman of the Board, October 29, 1977
- ------------------------- President and Chief
Herbert G. Chorbajian Executive Officer
(Principal Executive
Officer)
/s/ Richard J. Heller Executive Vice President October 29, 1977
- ------------------------- and Chief Financial
Richard J. Heller Officer (Principal
Financial Officer)
/s/ Michael C. Walajtys Vice President and October 29, 1977
- ------------------------- Controller (Principal
Michael C. Walajtys Accounting Officer)
/s/ William J. Barr Director October 29, 1977
- -------------------------
William J. Barr*
/s/ Henry M. Elliot, Jr. Director October 29, 1977
- -------------------------
Henry M. Elliot, Jr.*
/s/ John E. Maloy, Sr. Director October 29, 1977
- -------------------------
John E. Maloy, Sr.*
/s/ Susan J. Stabile Director October 29, 1977
- -------------------------
Susan J. Stabile, Esq.*
II-8
<PAGE>
/s/ Anthony P. Tartaglia Director October 29, 1977
- -------------------------
Anthony P. Tartaglia, M.D.*
/s/ Karen R. Hitchcock Director October 29, 1977
- -------------------------
Karen R. Hitchcock, Ph.D.*
/s/ Francis L. McKone Director October 29, 1977
- -------------------------
Francis L. McKone*
/s/ John J. Nigro Director October 29, 1977
- -------------------------
John J. Nigro*
*By /s/ Richard J. Heller
---------------------------
Richard J. Heller
Executive Vice President
and Chief Financial Officer
II-9
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Albany, State of New York, on
October 29, 1997.
ALBANK CAPITAL TRUST I
(Registrant)
By /s/ Richard J. Heller
----------------------------
Richard J. Heller
Administrator
By /s/ Barry J. Blenis
----------------------------
Barry J. Blenis
Administrator
By /s/ Freling H. Smith
----------------------------
Freling H. Smith
Administrator
II-10
- -------------------------------------------------------------------
- -------------------------------------------------------------------
ALBANK FINANCIAL CORPORATION
------------------------------
------------------------------
INDENTURE
Dated as of June 6, 1997
------------------------------
The Chase Manhattan Bank
as Trustee
------------------------------
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
- -------------------------------------------------------------------
- -------------------------------------------------------------------
<PAGE>
TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture
dated as of June 6, 1997 between ALBANK Financial Corporation and
The Chase Manhattan Bank, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)......................................................6.09
(a)(2) .....................................................6.09
310(a)(3).......................................................N/A
(a)(4).......................................................N/A
310(a)(5)................................................6.10, 6.11
310(b)..........................................................N/A
310(c).........................................................6.13
311(a) and (b)..................................................N/A
311(c)................................................4.01, 4.02(a)
312(a).........................................................4.02
312(b) and (c).................................................4.04
313(a).........................................................4.04
313(b)(1)......................................................4.04
313(b)(2)......................................................4.04
313(c).........................................................4.04
313(d).........................................................4.04
314(a).........................................................4.03
314(b)..........................................................N/A
314(c)(1) and (2)..............................................6.07
314(c)(3).......................................................N/A
314(d) .........................................................N/A
314(e).........................................................6.07
314(f) .........................................................N/A
315(a)(c) and (d)..............................................6.01
315(b) ........................................................5.08
315(e) ........................................................5.09
316(a)(1) .....................................................5.07
316(a)(2) ......................................................N/A
316(a) last sentence ..........................................2.09
316(b) ........................................................9.02
317(a) ........................................................5.05
317(b) ........................................................6.05
318(a) .......................................................13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
<PAGE>
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS......................... 1
SECTION 1.Definitions................................ 1
Additional Interest.................................. 1
Adjusted Treasury Rate............................... 1
Affiliate............................................ 2
ALBANK Capital Trust................................. 2
Authenticating Agent................................. 2
Bankruptcy Law....................................... 2
Board of Directors................................... 3
Board Resolution..................................... 3
Business Day......................................... 3
Capital Securities................................... 3
Capital Securities Guarantee......................... 3
Commission........................................... 3
Common Securities.................................... 3
Common Securities Guarantee.......................... 4
Common Stock......................................... 4
Company.............................................. 4
Company Request...................................... 4
Company Order........................................ 4
Comparable Treasury Issue............................ 4
Comparable Treasury Price............................ 4
Compounded Interest.................................. 4
Custodian............................................ 4
Declaration.......................................... 5
Default.............................................. 5
Deferred Interest.................................... 5
Definitive Securities................................ 5
Depositary........................................... 5
Dissolution Event.................................... 5
Event of Default..................................... 5
Exchange Act......................................... 5
Exchange Offer....................................... 5
Extended Interest Payment Period..................... 5
Federal Reserve...................................... 6
Global Security...................................... 6
Indebtedness for Money Borrowed...................... 6
Indenture............................................ 6
Initial Optional Prepayment Date..................... 6
Interest Payment Date................................ 6
Investment Company Event............................. 6
Maturity Date........................................ 7
- --------
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
i
<PAGE>
Mortgage............................................. 7
Non-Book-Entry Capital Securities.................... 7
Offering Memorandum.................................. 7
Officers............................................. 7
Officers' Certificate................................ 7
Opinion of Counsel................................... 7
Optional Prepayment Price............................ 7
Other Debentures..................................... 7
Other Guarantees..................................... 7
outstanding.......................................... 7
Person............................................... 8
Predecessor Security................................. 8
Prepayment Price..................................... 8
Principal Office of the Trustee...................... 8
Property Trustee..................................... 8
Purchase Agreement................................... 8
Quotation Agent...................................... 9
Reference Treasury Dealer............................ 9
Reference Treasury Dealer Quotations................. 9
Registration Rights Agreement........................ 9
Regulatory Capital Event............................. 9
Remaining Life....................................... 9
Responsible Officer.................................. 9
Restricted Security.................................. 10
Rule 144A............................................ 10
Securities........................................... 10
Securities Act....................................... 10
Securityholder....................................... 10
holder of Securities................................. 10
Holder............................................... 10
Security Register.................................... 10
Senior Indebtedness.................................. 10
Series A Securities.................................. 10
Series B Securities.................................. 10
Special Event........................................ 10
Special Event Prepayment Price....................... 11
Subsidiary........................................... 11
Tax Event............................................ 11
Trustee.............................................. 12
Trust Indenture Act of 1939.......................... 12
Trust Securities..................................... 12
U.S. Government Obligations.......................... 12
ARTICLE II
SECURITIES.......................... 13
SECTION 2.01. Forms Generally........................ 13
SECTION 2.02. Execution and Authentication........... 13
SECTION 2.03. Form and Payment....................... 13
SECTION 2.04. Legends................................ 14
SECTION 2.05. Global Security........................ 14
SECTION 2.06. Interest............................... 16
ii
<PAGE>
SECTION 2.07. Transfer and Exchange.................. 17
SECTION 2.08. Replacement Securities................. 19
SECTION 2.09. Temporary Securities................... 19
SECTION 2.10. Cancellation........................... 20
SECTION 2.11. Defaulted Interest..................... 20
SECTION 2.12. CUSIP Numbers.......................... 21
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY............. 22
SECTION 3.01. Payment of Principal, Premium and
Interest............................... 22
SECTION 3.02. Offices for Notices and Payments, etc.. 22
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office....................... 23
SECTION 3.04. Provision as to Paying Agent........... 23
SECTION 3.05. Certificate to Trustee................. 24
SECTION 3.06. Compliance with Consolidation
Provisions............................. 24
SECTION 3.07. Limitation on Dividends................ 25
SECTION 3.08. Covenants as to ALBANK Capital Trust....26
SECTION 3.09. Payment of Expenses.................... 26
SECTION 3.10. Payment Upon Resignation or Removal.... 27
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE................... 27
SECTION 4.01. Securityholders' Lists................. 27
SECTION 4.02. Preservation and Disclosure of Lists... 28
SECTION 4.03. Reports by the Company................. 30
SECTION 4.04. Reports by the Trustee................. 31
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT..................... 31
SECTION 5.01. Events of Default...................... 31
SECTION 5.02. Payment of Securities on Default; Suit
Therefor............................... 34
SECTION 5.03. Application of Moneys Collected by
Trustee................................ 36
SECTION 5.04. Proceedings by Securityholders......... 37
SECTION 5.05. Proceedings by Trustee................. 38
SECTION 5.06. Remedies Cumulative and Continuing..... 38
SECTION 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of
Securityholders ....................... 38
SECTION 5.08. Notice of Defaults..................... 39
SECTION 5.09. Undertaking to Pay Costs............... 40
iii
<PAGE>
ARTICLE VI
CONCERNING THE TRUSTEE.................... 40
SECTION 6.01. Duties and Responsibilities of Trustee. 40
SECTION 6.02. Reliance on Documents, Opinions, etc... 42
SECTION 6.03. No Responsibility for Recitals, etc.... 43
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar
May Own Securities..................... 44
SECTION 6.05. Moneys to be Held in Trust............. 44
SECTION 6.06. Compensation and Expenses of Trustee... 44
SECTION 6.07. Officers' Certificate as Evidence...... 45
SECTION 6.08. Conflicting Interest of Trustee........ 45
SECTION 6.09. Eligibility of Trustee................. 46
SECTION 6.10. Resignation or Removal of Trustee...... 46
SECTION 6.11. Acceptance by Successor Trustee........ 48
SECTION 6.12. Succession by Merger, etc.............. 49
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor............................... 49
SECTION 6.14. Authenticating Agents.................. 49
ARTICLE VII
CONCERNING THE SECURITYHOLDERS................ 51
SECTION 7.01. Action by Securityholders.............. 51
SECTION 7.02. Proof of Execution by Securityholders.. 52
SECTION 7.03. Who Are Deemed Absolute Owners......... 52
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding............................ 52
SECTION 7.05. Revocation of Consents; Future Holders
Bound.................................. 53
ARTICLE VIII
SECURITYHOLDERS' MEETINGS.................. 53
SECTION 8.01. Purposes of Meetings................... 53
SECTION 8.02. Call of Meetings by Trustee............ 54
SECTION 8.03. Call of Meetings by Company or
Securityholders........................ 54
SECTION 8.04. Qualifications for Voting.............. 54
SECTION 8.05. Regulations............................ 55
SECTION 8.06. Voting................................. 56
ARTICLE IX
AMENDMENTS.......................... 57
SECTION 9.01. Without Consent of Securityholders..... 57
SECTION 9.02. With Consent of Securityholders........ 59
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures...... 60
SECTION 9.04. Notation on Securities................. 60
iv
<PAGE>
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee...... 60
ARTICLE X
CONSOLIDATION, CONVERSION, MERGER, SALE,
CONVEYANCE AND LEASE............................ 61
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms......................... 61
SECTION 10.02. Successor Corporation to be Substituted
for Company........................... 62
SECTION 10.03. Opinion of Counsel to be Given
Trustee .............................. 62
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE........... 63
SECTION 11.01. Discharge of Indenture................ 63
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee................................ 63
SECTION 11.03. Paying Agent to Repay Moneys Held...... 64
SECTION 11.04. Return of Unclaimed Moneys............. 64
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations............ 64
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.................... 66
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations................. 66
ARTICLE XIII
MISCELLANEOUS PROVISIONS................... 67
SECTION 13.01. Successors............................ 67
SECTION 13.02. Official Acts by Successor
Corporation .......................... 67
SECTION 13.03. Surrender of Company Powers........... 67
SECTION 13.04. Addresses for Notices, etc............ 67
SECTION 13.05. Governing Law......................... 68
SECTION 13.06. Evidence of Compliance with Conditions
Precedent............................. 68
SECTION 13.07. Business Days......................... 68
SECTION 13.08. Trust Indenture Act to Control........ 68
SECTION 13.09. Table of Contents, Headings, etc...... 69
SECTION 13.10. Execution in Counterparts............. 69
SECTION 13.11. Separability.......................... 69
SECTION 13.12. Assignment............................ 69
SECTION 13.13. Acknowledgement of Rights............. 69
v
<PAGE>
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND.................... 70
SECTION 14.01. Special Event Prepayment.............. 70
SECTION 14.02. Optional Prepayment by Company........ 70
SECTION 14.03. No Sinking Fund....................... 71
SECTION 14.04. Notice of Prepayment; Selection of
Securities............................ 72
SECTION 14.05. Payment of Securities Called for
Prepayment............................ 73
ARTICLE XV
SUBORDINATION OF SECURITIES................. 73
SECTION 15.01. Agreement to Subordinate.............. 73
SECTION 15.02. Default on Senior Indebtedness........ 74
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.. 74
SECTION 15.04. Subrogation........................... 76
SECTION 15.05. Trustee to Effectuate Subordination... 77
SECTION 15.06. Notice by the Company................. 77
SECTION 15.07. Rights of the Trustee; Holders of
Senior Indebtedness................... 78
SECTION 15.08. Subordination May Not Be Impaired..... 79
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD............. 80
SECTION 16.01. Extension of Interest Payment Period.. 80
SECTION 16.02. Notice of Extension................... 80
EXHIBIT A.......................................................A-1
Testimonium
Signatures
Acknowledgements
vi
<PAGE>
THIS INDENTURE, dated as of June 6, 1997, between
ALBANK Financial Corporation, a Delaware corporation (hereinafter
sometimes called the "Company"), and The Chase Manhattan Bank, a
New York banking corporation, as trustee (hereinafter sometimes
called the "Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of
the Securities by the holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit
of the respective holders from time to time of the Securities, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture shall have
the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or
which are by reference therein defined in the Securities Act,
shall (except as herein otherwise expressly provided or unless
the context otherwise requires) have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of this Indenture as originally executed.
The following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii)
Property Trustee; (iv) Administrators; (v) Direct Action; (vi)
Purchase Agreement and (vii) Trust. All accounting terms used
herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting
principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision. Headings are used for convenience
of reference only and do not affect interpretation. The singular
includes the plural and vice versa.
"Additional Interest" shall have the meaning set forth
in Section 2.06(c).
"Adjusted Treasury Rate" shall mean, with respect to
any prepayment date, the rate per annum equal to (i) the yield,
<PAGE>
under the heading which represents the average for the
immediately prior week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity
corresponding to the Remaining Life (if no maturity is within
three months before or after the maturity corresponding to the
Remaining Life, yields for the two published maturities most
closely corresponding to the Remaining Life shall be
interpolated, and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
prepayment date, in each case calculated on the third Business
Day preceding the prepayment date, plus in each case (a) 1.50% if
such prepayment date occurs on or prior to June 6, 1998, and (b)
0.50% in all other cases.
"Affiliate" shall mean, with respect to a specified
Person, (a) any Person directly or indirectly owning, controlling
or holding the power to vote 10% or more of the outstanding
voting securities or other ownership interests of the specified
Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the
specified Person, (c) any Person directly or indirectly
controlling, controlled by, or under common control with the
specified Person, (d) a partnership in which the specified Person
is a general partner, (e) any officer or director of the
specified Person, and (f) if the specified Person is an
individual, any entity of which the specified Person is an
officer, director or general partner.
"ALBANK Capital Trust" or the "Trust" shall mean
ALBANK Capital Trust I, a Delaware business trust created for the
purpose of issuing its undivided beneficial interests in
connection with the issuance of Securities under this Indenture.
"Authenticating Agent" shall mean any agent or agents
of the Trustee which at the time shall be appointed and acting
pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
2
<PAGE>
"Board of Directors" shall mean either the Board of
Directors of the Company or any duly authorized committee of that
board.
"Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" shall mean, with respect to any series
of Securities, any day other than a Saturday or a Sunday or a day
on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or required by law or
executive order to close.
"Capital Securities" shall mean undivided beneficial
interests in the assets of ALBANK Capital Trust which rank pari
passu with the Common Securities issued by ALBANK Capital Trust;
provided, however, that if an Event of Default has occurred and
is continuing, no payments in respect of Distributions on, or
payments upon liquidation, prepayment or otherwise with respect
to, the Common Securities shall be made until the holders of the
Capital Securities shall be paid in full the Distributions and
the liquidation, prepayment and other payments to which they are
entitled. References to "Capital Securities" shall include
collectively any Series A Capital Securities and Series B Capital
Securities.
"Capital Securities Guarantee" shall mean any
guarantee that the Company may enter into with The Chase
Manhattan Bank or other Persons that operates directly or
indirectly for the benefit of holders of Capital Securities of
ALBANK Capital Trust and shall include a Series A Capital
Securities Guarantee and a Series B Capital Securities Guarantee
with respect to the Series A Capital Securities and the Series B
Capital Securities, respectively.
"Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" shall mean undivided beneficial
interests in the assets of ALBANK Capital Trust which rank pari
passu with Capital Securities issued by ALBANK Capital Trust;
provided, however, that if an Event of Default has occurred and
is continuing, no payments in respect of Distributions on, or
payments upon liquidation, prepayment or otherwise with respect
to, the Common Securities shall be made until the holders of the
3
<PAGE>
Capital Securities shall be paid in full the Distributions and
the liquidation, prepayment and other payments to which they are
entitled.
"Common Securities Guarantee" shall mean any guarantee
by the Company that operates directly or indirectly for the
benefit of holders of Common Securities of ALBANK Capital Trust.
"Common Stock" shall mean the Common Stock, par value
$.01 per share, of the Company or any other class of stock
resulting from changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value.
"Company" shall mean ALBANK Financial Corporation, a
Delaware corporation, and, subject to the provisions of Article
Ten, shall include its successors and assigns.
"Company Request" or "Company Order" shall mean a
written request or order signed in the name of the Company by an
Officer of the Company, and delivered to the Trustee.
"Comparable Treasury Issue" shall mean the United
States Treasury security selected by the Quotation Agent as
having a maturity comparable to the Remaining Life of the
Securities that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
Remaining Life of the Securities. If no United States Treasury
security has a maturity which is within a period from three
months before to three months after the Initial Optional
Prepayment Date, the two most closely corresponding United States
Treasury securities shall be used as the Comparable Treasury
Issue, and the Adjusted Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest
month, using such securities.
"Comparable Treasury Price" shall mean, with respect
to any prepayment date pursuant to Section 14.01, (i) the average
of five Reference Treasury Dealer Quotations for such prepayment
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer
than five such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Compounded Interest" shall have the meaning set forth
in Section 16.01.
"Custodian" shall mean any receiver, trustee,
assignee, liquidator, or similar official under any Bankruptcy
Law.
4
<PAGE>
"Declaration" shall mean the Amended and Restated
Declaration of Trust of ALBANK Capital Trust, dated as of June 6,
1997.
"Default" shall mean any event, act or condition that
with notice or lapse of time, or both, would constitute an Event
of Default.
"Deferred Interest" shall have the meaning set forth in
Section 16.01.
"Definitive Securities" shall mean those securities
issued in fully registered certificated form not otherwise in
global form.
"Depositary" shall mean, with respect to Securities of
any series, for which the Company shall determine that such
Securities will be issued as a Global Security, The Depository
Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the Exchange
Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section
2.05(d).
"Dissolution Event" shall mean the liquidation of the
Trust pursuant to the Declaration, and the distribution of the
Securities held by the Property Trustee to the holders of the
Trust Securities issued by the Trust pro rata in accordance with
the Declaration.
"Event of Default" shall mean any event specified in
Section 5.01, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Exchange Offer" means the offer that may be made
pursuant to the Registration Rights Agreement (i) by the Company
to exchange Series B Securities for Series A Securities and to
exchange a Series B Capital Securities Guarantee for a Series A
Capital Securities Guarantee and (ii) by ALBANK Capital Trust to
exchange Series B Capital Securities for Series A Capital
Securities.
"Extended Interest Payment Period" shall have the
meaning set forth in Section 16.01.
5
<PAGE>
"Federal Reserve" shall mean the Board of Governors of
the Federal Reserve System and its successors.
"Global Security" shall mean, with respect to the
Securities, a Security executed by the Company and delivered by
the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture, which shall
be registered in the name of the Depositary or its nominee.
"Indebtedness for Money Borrowed" shall mean any
obligation of, or any obligation guaranteed by, the Company for
the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments but shall
not include (i) any trade accounts payable in the ordinary course
of business, (ii) any indebtedness that by its terms ranks pari
passu with or junior in right of payment to the Securities, (iii)
all other debt securities, and guarantees in respect of those
debt securities, issued to 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
equity securities or other securities guaranteed by the Company
pursuant to an instrument that ranks pari passu with or junior in
right of payment to the Capital Securities Guarantee, (iv)
indebtedness to any employee of the Company, (v) any indebtedness
of the Company which when incurred was without recourse to the
Company and (vi) any other indebtedness that would otherwise
qualify as Indebtedness for Money Borrowed to the extent that
such indebtedness by its terms ranks pari passu with or junior in
right of payment to any Indebtedness described in any of (i),
(ii) or (iii).
"Indenture" shall mean this instrument as originally
executed or, if amended as herein provided, as so amended.
"Initial Optional Prepayment Date" shall mean June 6,
2007.
"Interest Payment Date" shall have the meaning set
forth in Section 2.06.
"Investment Company Event" means the receipt by the
Company and the Trust of an opinion of nationally recognized
independent counsel experienced in practice under the Investment
Company Act of 1940, as amended (the "Investment Company Act"),
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"),
there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" which is required to
be registered under the Investment Company Act, which Change in
6
<PAGE>
Investment Company Act Law becomes effective on or after the date
of the Offering Memorandum.
"Maturity Date" shall mean June 6, 2027.
"Mortgage" shall mean and include any mortgage,
pledge, lien, security interest, conditional sale or other title
retention agreement or other similar encumbrance.
"Non-Book-Entry Capital Securities" shall have the
meaning set forth in Section 2.05.
"Offering Memorandum" shall mean the offering
memorandum, dated June 4, 1997, relating to the Capital
Securities.
"Officers" shall mean any of the Chairman, a Vice
Chairman, the Chief Executive Officer, the President, a Vice
President (whether or not designated by a number or a word or
words added before or after such title), the Comptroller or an
Assistant Comptroller, the Secretary or an Assistant Secretary of
the Company.
"Officers' Certificate" shall mean a certificate signed
by two Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be an employee of the Company or may be other
counsel acceptable to the Trustee.
"Optional Prepayment Price" shall have the meaning set
forth in Section 14.02.
"Other Debentures" shall mean all junior subordinated
debentures issued by the Company from time to time and sold to
trusts to be established by the Company (if any), in each case
similar to the Trust.
"Other Guarantees" shall mean all guarantees issued by
the Company with respect to capital securities (if any) and
issued to other trusts established by the Company (if any), in
each case similar to the Trust.
The term "outstanding," when used with reference to
Securities, shall, subject to the provisions of Section 7.04,
mean, as of any particular time, all Securities authenticated and
delivered by the Trustee or the Authenticating Agent under this
Indenture, except
(a) Securities theretofore cancelled by the Trustee or
the Authenticating Agent or delivered to the
Trustee for cancellation;
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(b) Securities, or portions thereof, for the payment
or prepayment of which moneys in the necessary
amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the
Company) or shall have been set aside and
segregated in trust by the Company (if the Company
shall act as its own paying agent); provided that,
if such Securities, or portions thereof, are to be
prepaid prior to maturity thereof, notice of such
prepayment shall have been given as in Article
Fourteen provided or provision satisfactory to the
Trustee shall have been made for giving such
notice; and
(c) Securities in lieu of or in substitution for
which other Securities shall have been
authenticated and delivered pursuant to the terms
of Section 2.08 unless proof satisfactory to the
Company and the Trustee is presented that any
such Securities are held by bona fide holders in
due course.
"Person" shall mean any individual, corporation,
estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security
shall mean every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated
and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Prepayment Price" shall mean the Special Event
Prepayment Price or the Optional Prepayment Price, as the context
requires.
"Principal Office of the Trustee", or other similar
term, shall mean the office of the Trustee, at which at any
particular time its corporate trust business shall be principally
administered.
"Property Trustee" shall have the same meaning as set
forth in the Declaration.
"Purchase Agreement" shall mean the Purchase Agreement
dated June 4, 1997 among the Company, ALBANK Capital Trust and
the Initial Purchaser named therein.
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"Quotation Agent" shall mean the Reference Treasury
Dealer appointed by the Company.
"Reference Treasury Dealer" shall mean a primary U.S.
Government securities dealer in New York City (a "Primary
Treasury Dealer").
"Reference Treasury Dealer Quotations" shall mean,
with respect to each Reference Treasury Dealer and any prepayment
date pursuant to Section 14.01, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such prepayment date.
"Registration Rights Agreement" shall mean the
Registration Rights Agreement, dated as of June 6, 1997, by and
among the Company, the Trust and the Initial Purchaser named
therein as such agreement may be amended, modified or
supplemented from time to time.
"Regulatory Capital Event" shall occur at any time
that the Company becomes, or pursuant to law or regulation or any
rules, guidelines or policies of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") or any official
administrative announcement or decision interpreting such laws,
regulations, rules, policies or guidelines, will become within
180 days, subject to capital requirements under which, in the
written opinion of independent bank regulatory counsel
experienced in such matters, the Capital Securities would not
constitute Tier 1 Capital applied as if the Company (or its
successor) were a bank holding company (as that concept is used
in the guidelines or regulations issued by the Federal Reserve as
of the date of the Offering Memorandum) or its then equivalent
("Tier 1 Capital").
"Remaining Life" shall mean, with respect to any
optional prepayment pursuant to Section 14.01, the period from
the date of such prepayment to, and including, the Initial
Optional Prepayment Date.
"Responsible Officer", when used with respect to the
Trustee, shall mean the chairman or any vice chairman of the
board of directors, the chairman or any vice chairman of the
executive committee of the board of directors, the chairman of
the trust committee, the president, any vice president, the
cashier, any assistant cashier, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any senior
trust officer, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer or
assistant officer of the Trustee customarily performing functions
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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 his knowledge of and familiarity with the particular
subject.
"Restricted Security" shall mean Securities that bear
or are required to bear the legends set forth in Exhibit A
hereto.
"Rule 144A" shall mean Rule 144A under the Securities
Act, as such Rule may be amended from time to time, or under any
similar rule or regulation hereafter adopted by the Commission.
"Securities" shall mean, collectively, the Series A
Securities and the Series B Securities.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Securityholder", "holder of Securities", "Holder", or
other similar terms, shall mean any person in whose name at the
time a particular Security is registered on the register kept by
the Company or the Trustee for that purpose in accordance with
the terms hereof.
"Security Register" shall mean (i) prior to a
Dissolution Event, the list of holders provided to the Trustee
pursuant to Section 4.01, and (ii) following a Dissolution Event,
any security register maintained by a security registrar for the
securities appointed by the Company following the execution of a
supplemental indenture providing for transfer procedures as
provided for in Section 2.07(a).
"Senior Indebtedness" shall mean all Indebtedness for
Money Borrowed, whether outstanding on the date of execution of
this Indenture or thereafter created, assumed or incurred, unless
the terms thereof specifically provide that it is not superior in
right of payment to the Series A Securities or the Series B
Securities, and any deferrals, renewals or extensions of such
Senior Indebtedness.
"Series A Securities" means the Company's 9.27% Series
A Junior Subordinated Deferrable Interest Debentures due June 6,
2027, as authenticated and issued under this Indenture.
"Series B Securities" means the Company's 9.27% Series
B Junior Subordinated Deferrable Interest Debentures due June 6,
2027, as authenticated and issued under this Indenture.
"Special Event" shall mean either a Regulatory Capital
Event, an Investment Company Event or a Tax Event.
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"Special Event Prepayment Price" shall mean, with
respect to any prepayment of the Securities pursuant to Section
14.01 hereof, an amount in cash equal to the greater of (i) 100%
of the principal amount to be prepaid or (ii) the sum, as
determined by a Quotation Agent, of the present values of 100% of
the principal amount thereof plus scheduled payments of interest
on the Securities during the Remaining Life of the Securities,
discounted to the prepayment date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate, plus, in each case, any accrued and
unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the date of such prepayment.
"Subsidiary" shall mean with respect to any Person,
(i) any corporation at least a majority of whose outstanding
voting stock of which is owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority
of whose outstanding partnership or similar interests shall at
the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, "voting stock" means shares,
interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
"Tax Event" means the receipt by the Company and the
Trust of an opinion of a nationally recognized tax counsel
experienced in such matters to the effect that, 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, or (b) any judicial decision
or 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 administrative position or
interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental agency 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
Administrative Action or decision is announced, in each case, on
or after the date of the Offering Memorandum, there is more than
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an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on
the Securities, (ii) the interest payable by the Company on the
Securities is not, or within 90 days of the date of such opinion
will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trustee" shall mean the Person identified as
"Trustee" in the first paragraph hereof, and, subject to the
provisions of Article Six hereof, shall also include its
successors and assigns as Trustee hereunder. The term "Trustee"
as used with respect to a particular series of the Securities
shall mean the trustee with respect to that series.
"Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939 as in force at the date of execution of
this Indenture, except as provided in Section 9.03.
"Trust Securities" shall mean the Capital Securities
and the Common Securities, collectively.
"U.S. Government Obligations" shall mean securities
that are (i) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America,
which, in either case under clauses (i) or (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
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ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A,
the terms of which are incorporated in and made a part of this
Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be
issued in denominations of $100,000 and integral multiples of
$1,000 in excess thereof.
SECTION 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company
by manual or facsimile signature. If an Officer whose signature
is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee. The
signature of the Trustee shall be conclusive evidence that the
Security has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the
Securities shall be substantially as set forth in Exhibit A
hereto.
The Trustee shall, upon a Company Order, authenticate
for original issue up to, and the aggregate principal amount of
Securities outstanding at any time may not exceed $51,547,000
aggregate principal amount of the Securities, except as provided
in Sections 2.07, 2.08, 2.09 and 14.05. The series of Securities
to be initially issued hereunder shall be the Series A
Securities.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities
shall be issued in fully registered certificated form without
interest coupons. Principal of, and premium, if any, and interest
on, the Securities issued in certificated form will be payable,
the transfer of such Securities will be registrable and such
Securities will be exchangeable for Securities bearing identical
terms and provisions at the office or agency of the Company
maintained for such purpose under Section 3.02; provided,
however, that payment of interest with respect to Securities
(other than a Global Security) may be made at the option of the
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Company (i) by check mailed to the holder entitled thereto at
such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto
as specified in the Security Register, provided that proper
transfer instructions have been received in writing by the paying
agent by the relevant record date. Notwithstanding the foregoing,
so long as the holder of any Securities is the Property Trustee,
the payment of the principal of, and premium, if any, and
interest (including Compounded Interest and Additional Interest,
if any) on such Securities held by the Property Trustee will be
made at such place and to such account as may be designated by
the Property Trustee.
SECTION 2.04. Legends.
(a) Except as permitted by subsection (b) of this
Section 2.04 or as otherwise determined by the Company in
accordance with applicable law, each Security shall bear the
applicable legends relating to restrictions on transfer pursuant
to the securities laws in substantially the form set forth on
Exhibit A hereto.
(b) The Company may issue and the Trustee shall
authenticate Series B Securities in exchange for Series A
Securities accepted for exchange in the Exchange Offer, which
Series B Securities shall not bear the legends required by
subsection (a) above, in each case unless the holder of such
Series A Securities is either (A) a broker-dealer who purchased
such Series A Securities directly from the Company for resale
pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of
the Series A Securities or (C) a Person who is an affiliate (as
defined in Rule 144 under the Securities Act) of the Company.
SECTION 2.05. Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in
book-entry form, the related Definitive Securities shall be
presented to the Trustee (if an arrangement with the
Depositary has been maintained) by the Property Trustee in
exchange for one or more Global Securities (as may be
required pursuant to Section 2.07) in an aggregate
principal amount equal to the aggregate principal amount of
all outstanding Securities, 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
Administrators; the Company upon any such presentation
shall execute one or more Global Securities in such
aggregate principal amount and deliver the same to the
Trustee for
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authentication and delivery in accordance with this
Indenture; and payments on the Securities issued as a
Global Security will be made to the Depositary; and
(ii) if any Capital Securities are held in
certificated form, the related Definitive Securities may be
presented to the Trustee by the Property Trustee and any
Capital Security certificate which represents Capital
Securities other than Capital Securities in book-entry form
("Non Book-Entry Capital Securities") will be deemed to
represent beneficial interests in Securities presented to
the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount
of the Non Book-Entry Capital Securities until such Capital
Security certificates are presented to the Security
Registrar for transfer or reissuance, at which time such
Capital Security certificates will be cancelled and a
Security, registered in the name of the holder of the
Capital Security certificate or the transferee of the
holder of such Capital Security certificate, as the case
may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Security
certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with this Indenture. Upon the issuance of such
Securities, Securities with an equivalent aggregate
principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been
cancelled.
(b) The Global Securities shall represent the
aggregate amount of outstanding Securities from time to time
endorsed thereon; provided, that the aggregate amount of
outstanding Securities represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and
prepayments. Any endorsement of a Global Security to reflect the
amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee, in
accordance with instructions given by the Company as required by
this Section 2.05.
(c) The Global Securities may be transferred, in whole
but not in part, only to the Depositary, another nominee of the
Depositary, or to a successor Depositary selected or approved by
the Company or to a nominee of such successor Depositary.
(d) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or the
Depositary has ceased to be a clearing agency registered under
the Exchange Act, and a successor Depositary 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 the Trustee, upon written notice from
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the Company, will authenticate and make available for delivery
the Definitive Securities, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security. If there is
an Event of Default, the Depositary shall have the right to
exchange the Global Securities for Definitive Securities. In
addition, the Company may at any time determine that the
Securities shall no longer be represented by a Global Security.
In the event of such an Event of Default or such a determination,
the Company shall execute, and subject to Section 2.07, the
Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and make
available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such
Global Security. Upon the exchange of the Global Security for
such Definitive Securities, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such
Definitive Securities issued in exchange for the Global Security
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 Definitive Securities
to the Depositary for delivery to the Persons in whose names such
Definitive Securities are so registered.
SECTION 2.06. Interest.
(a) Each Security will bear interest at the rate of
9.27% per annum (the "Coupon Rate") from the most recent date to
which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from June 6, 1997
until the principal thereof becomes due and payable and at the
Coupon Rate on any overdue principal (and premium, if any) and
(to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest,
compounded semi-annually, payable (subject to the provisions of
Article Sixteen) semi-annually in arrears on June 6 and December
6 of each year (each, an "Interest Payment Date") commencing on
December 6, 1997, to the Person in whose name such Security or
any predecessor Security is registered, at the close of business
on the regular record date for such interest installment, which
shall be the fifteenth day prior to the relevant Interest Payment
Date.
(b) Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months and, for any
period of less than a full calendar month, the number of days
elapsed in such month. In the event that any Interest Payment
Date falls on a day that 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
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payment in respect of any such delay), with the same force and
effect as if made on such date.
(c) During such time as the Property Trustee is the
holder of any Securities, the Company shall pay any additional
amounts on the Securities as may be necessary in order that the
amount of Distributions then due and payable by the Trust on the
outstanding Securities shall not be reduced as a result of any
additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of a Tax Event
("Additional Interest").
SECTION 2.07. Transfer and Exchange.
(a) Transfer Restrictions. (i) The Series A
Securities, and those Series B Securities with respect to which
any Person described in Section 2.04(b)(A), (B) or (C) is the
beneficial owner, may not be transferred except in compliance
with the legend contained in Exhibit A unless otherwise
determined by the Company in accordance with applicable law. Upon
any distribution of the Securities following a Dissolution Event,
the Company and the Trustee shall enter into a supplemental
indenture pursuant to Section 9.01 to provide for the transfer
restrictions and procedures with respect to the Securities
substantially similar to those contained in the Declaration to
the extent applicable in the circumstances existing at such time.
(ii) Except as provided in a Company Order
delivered to the Trustee, the Securities will be issued and may
be transferred only in blocks having an aggregate principal
amount of not less than $100,000. Any such transfer of the
Securities in a block having an aggregate principal amount of
less than $100,000 shall be deemed to be voided and of no legal
effect whatsoever. Any such transferee shall be deemed not to be
a holder of such Securities for any purpose, including, but not
limited to the receipt of payments on such Securities, and such
transferee shall be deemed to have no interest whatsoever in such
Securities.
(b) General Provisions Relating to Transfers and
Exchanges. Upon surrender for registration of transfer of any
Security of any series at the office or agency of the Company
maintained for the purpose pursuant to Section 3.02, the Company
shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount.
At the option of the holder, Securities of any series
may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal
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amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making
the exchange is entitled to receive.
Every Security presented or surrendered for
registration of transfer or exchange shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the
Company and the Security registrar duly executed, by the holder
thereof or his attorney duly authorized in writing. All
Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or
Global Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Definitive Securities or Global Securities
surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
The Company shall not be required to (i) issue,
register the transfer of or exchange Securities during a period
beginning at the opening of business 15 days before the day of
mailing of a notice of prepayment or any notice of selection of
Securities for prepayment under Article Fifteen hereof and ending
at the close of business on the day of such mailing; or (ii)
register the transfer of or exchange any Security so selected for
prepayment in whole or in part, except the unprepaid portion of
any Security being prepaid in part.
(c) Exchange of Series A Securities for Series B
Securities. The Series A Securities may be exchanged for Series
B Securities pursuant to the terms of the Exchange Offer. The
Trustee shall make the exchange as follows:
The Trustee, upon receipt of (i) an Opinion of Counsel
(x) to the effect that the Series B Securities have been
registered under Section 5 of the Securities Act and the
Indenture has been qualified under the Trust Indenture Act and
(y) with respect to the matters set forth in Section 3(p) of the
Registration Rights Agreement and (ii) a Company Order, shall
authenticate (A) a Global Security for Series B Securities in
aggregate principal amount equal to the aggregate principal
amount of Series A Securities represented by a Global Security
indicated in such order as having been properly tendered and (B)
Definitive Securities representing Series B Securities registered
in the names of, and in the principal amounts indicated in, such
Order.
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If the principal amount of the Global Security for the
Series B Securities is less than the principal amount of the
Global Security for the Series A Securities, the Trustee shall
make an endorsement on such Global Security for Series A
Securities indicating a reduction in the principal amount
represented thereby.
The Trustee shall deliver such Definitive Securities
for Series B Securities to the holders thereof as indicated in
such Company Order.
SECTION 2.08. Replacement Securities.
If any mutilated Security is surrendered to the
Trustee, or the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security,
the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements for
replacements of Securities are met. An indemnity bond must be
supplied by the holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any
Authenticating Agent or any agent thereof from any loss that any
of them may suffer if a Security is replaced. The Company or the
Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the
Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Securities
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 of mutilated, destroyed, lost or
stolen Securities.
SECTION 2.09. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary
Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities.
If temporary Securities are issued, the Company shall
cause definitive Securities to be prepared without unreasonable
delay. The definitive Securities shall be printed, lithographed
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or engraved, or provided by any combination thereof, or in any
other manner permitted by the rules and regulations of any
applicable securities exchange, all as determined by the officers
executing such definitive Securities. After the preparation of
definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency maintained by the
Company for such purpose pursuant to Section 3.02 hereof, without
charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, in
exchange therefor the same aggregate principal amount of
definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 2.10. Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Trustee and no one else shall
cancel all Securities surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall retain
or dispose of cancelled Securities in accordance with its normal
practices (subject to the record retention requirement of the
Exchange Act) unless the Company directs them to be returned to
it. The Company may not issue new Securities to replace
Securities that have been paid or prepaid or that have been
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
Any interest on any Security that is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in
clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record
date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make
arrangements satisfactory
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to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the
Security Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered
on such special record date and shall be no longer payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of prepayment as a convenience to
Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a prepayment and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
prepayment shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
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ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of
the holders of the Securities that it will duly and punctually
pay or cause to be paid the principal of and premium, if any, and
interest on the Securities at the place, at the respective times
and in the manner provided herein. Except as provided in Section
2.03, each installment of interest on the Securities may be paid
by mailing checks for such interest payable to the order of the
holder of Security entitled thereto as they appear in the
Security Register. The Company further covenants to pay
Additional Interest, if any, on the dates and in the manner
required under the Registration Rights Agreement.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding,
the Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency where the Securities may be
presented for payment, an office or agency where the Securities
may be presented for registration of transfer and for exchange as
in this Indenture provided and an office or agency where notices
and demands to or upon the Company in respect of the Securities
or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or
agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes
shall be the Principal Office of the Trustee. In case the Company
shall fail to maintain any such office or agency in the Borough
of Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served
at the Principal Office of the Trustee.
In addition to any such office or agency, the Company
may from time to time designate one or more offices or agencies
outside the Borough of Manhattan, The City of New York, where the
Securities may be presented for payment, registration of transfer
and for exchange in the manner provided in this Indenture, and
the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office
or agency in the Borough of Manhattan, The City of New York, for
the purposes above mentioned. The Company will give to the
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Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office.
The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other
than the Trustee with respect to the Securities,
it will cause such paying agent to execute and
deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject
to the provision of this Section 3.04,
(1) that it will hold all sums held by it as
such agent for the payment of the principal
of and premium, if any, or interest on the
Securities (whether such sums have been paid
to it by the Company or by any other obligor
on the Securities) in trust for the benefit
of the holders of the Securities;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other
obligor on the Securities) to make any
payment of the principal of and premium or
interest on the Securities when the same
shall be due and payable; and
(3) that it will at any time during the
continuance of any such failure, upon the
written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust
by it as such paying agent.
(b) If the Company shall act as its own paying agent,
it will, on or before each due date of the
principal of and premium, if any, or interest on
the Securities, set aside, segregate and hold in
trust for the benefit of the holders of the
Securities a sum sufficient to pay such principal,
premium or interest so becoming due and will
notify the Trustee of its action or any failure to
take such action and of any failure by the Company
(or by any other obligor under the Securities) to
make any payment of the principal of and premium,
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if any, or interest on the Securities when the
same shall become due and payable.
Whenever the Company shall have one or more
paying agents, it will, on or prior to each due
date of the principal of (and premium, if any),
or interest on any Securities, deposit with a
paying agent a sum sufficient to pay the
principal of and premium, if any, or interest so
becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and
(unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of its
action or failure to act.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for
the purpose of obtaining a satisfaction and
discharge with respect to the Securities
hereunder, or for any other reason, pay or cause
to be paid to the Trustee all sums held in trust
for any Securities by the Trustee or any paying
agent hereunder, as required by this Section 3.04,
such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in
trust as provided in this Section 3.04 is subject
to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before
120 days after the end of each fiscal year in each year,
commencing with the first fiscal year ending after the date
hereof, so long as Securities are outstanding hereunder, an
Officers' Certificate, one of the signers of which shall be the
principal executive, principal financial or principal accounting
officer of the Company stating that in the course of the
performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default by the
Company in the performance of any covenants contained herein,
stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities
remain outstanding, consolidate with, or merge or convert into,
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or merge or convert into itself, or sell or convey all or
substantially all of its property to, any other Person unless the
provisions of Article Ten hereof are complied with.
SECTION 3.07. Limitation on Dividends.
The Company will not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital
stock (which includes common and preferred stock), (ii) make any
payment of principal, interest or premium, if any, with respect
to or repay, repurchase or redeem any debt securities of the
Company (including any Other Debentures) that rank pari passu
with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company
(including any Other Guarantees) if such guarantee ranks pari
passu or junior in right of payment to the Securities (other than
(a) dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of, Common Stock of
the Company; (b) any declaration of a dividend in connection with
the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto; (c)
payments under the Capital Securities Guarantee; (d) as a result
of a reclassification of the Company's capital stock or the
exchange or the conversion of one class or series of the
Company's capital stock for another class or series of the
Company's capital stock; (e) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged; and (f) purchases of
Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors,
officers or employees or any of the Company's dividend
reinvestment plans) if at such time (i) there shall have occurred
any event of which the Company has actual knowledge that (a) is,
or with the giving of notice or the lapse of time, or both, would
constitute an Event of Default and (b) in respect of which the
Company shall not have taken reasonable steps to cure, (ii) if
such Securities are held by the Property Trustee, the Company
shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the
Company shall have given notice of its election of the exercise
of its right to extend the interest payment period pursuant to
Section 16.01 and any such extension shall have commenced and
shall be continuing.
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SECTION 3.08. Covenants as to ALBANK Capital Trust.
In the event Securities are issued to ALBANK Capital
Trust or a trustee of such trust in connection with the issuance
of Trust Securities by ALBANK Capital Trust, for so long as such
Trust Securities remain outstanding, the Company will (i)
maintain 100% direct ownership of the Common Securities of ALBANK
Capital Trust; provided, however, that any successor of the
Company, permitted pursuant to Article Ten, may succeed to the
Company's ownership of such Common Securities, (ii) use its
reasonable efforts to cause ALBANK Capital Trust (a) to remain a
business trust, except in connection with a distribution of
Securities, the prepayment of all of the Trust Securities of
ALBANK Capital Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of ALBANK
Capital Trust, and (b) to otherwise continue to be treated as a
grantor trust and not an association taxable as a corporation 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
Securities.
SECTION 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of
the Securities to the Trust and in connection with the sale of
the Trust Securities by the Trust, the Company, in its capacity
as borrower with respect to the Securities, shall:
(a) pay all costs and expenses relating to the
offering, sale and issuance of the Securities, including
commissions to the initial purchaser payable pursuant to the
Purchase Agreement, fees and expenses in connection with any
exchange offer or other action to be taken pursuant to the
Registration Rights Agreement and compensation of the Trustee in
accordance with the provisions of Section 6.06;
(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 initial
purchaser 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;
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(c) be primarily and fully liable for any
indemnification obligations arising with respect to the
Declaration;
(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; and
(e) pay all other fees, expenses, debts and
obligations (other than payments of principal of, premium, if
any, or interest on the Trust Securities) related to ALBANK
Capital Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or
resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued and owing 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 5.7 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may
be, all amounts accrued and owing to the date of such
termination, removal or resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee:
(a) on a semi-annual basis within 14 days of each
regular record date for the Securities, a list,
in such form as the Trustee may reasonably
require, of the names and addresses of the
Securityholders as of such record date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the
Company, of any such request, a list of similar
form and content as of a date not more than 15
days prior to the time such list is furnished,
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except that, no such lists need be furnished so long
as the Trustee is in possession thereof by reason of
its acting as Security registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as
to the names and addresses of the holders of the
Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2)
received by it in the capacity of Securities
registrar (if so acting) hereunder. The Trustee
may destroy any list furnished to it as provided
in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities
(hereinafter referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has
owned a Security for a period of at least six
months preceding the date of such application, and
such application states that the applicants desire
to communicate with other holders of Securities or
with holders of all Securities with respect to
their rights under this Indenture and is
accompanied by a copy of the form of proxy or
other communication which such applicants propose
to transmit, then the Trustee shall within 5
Business Days after the receipt of such
application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in
accordance with the provisions of subsection (a)
of this Section 4.02; or
(2) inform such applicants as to the approximate
number of holders of all Securities, whose names
and addresses appear in the information preserved
at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing
to such Securityholders the form of proxy or
other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such
applicants access to such information, the
Trustee shall, upon the written request of such
applicants, mail to each Securityholder whose
name and
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address appear in the information preserved at
the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02
a copy of the form of proxy or other
communication which is specified in such request
with reasonable promptness after a tender to the
Trustee of the material to be mailed and of
payment, or provision for the payment, of the
reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall
mail to such applicants and file with the
Commission, together with a copy of the material
to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing
would be contrary to the best interests of the
holders of Securities of such series or all
Securities, as the case may be, or would be in
violation of applicable law. Such written
statement shall specify the basis of such
opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the
written statement so filed, shall enter an order
refusing to sustain any of such objections or if,
after the entry of an order sustaining one or
more of such objections, the Commission shall
find, after notice and opportunity for hearing,
that all the objections so sustained have been
met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness
after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every holder of Securities, by receiving
and holding the same, agrees with the Company and
the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any
such information as to the names and addresses of
the holders of Securities in accordance with the
provisions of subsection (b) of this Section 4.02,
regardless of the source from which such
information was derived, and that the Trustee
shall not be held accountable by reason of mailing
any material pursuant to a request made under said
subsection (b).
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SECTION 4.03. Reports by the Company.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the date on which
the Company is required to file the same with the
Commission, copies of the annual reports and of
the information, documents and other reports (or
copies of such portions of any of the foregoing as
the Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act;
or, if the Company is not required to file
information, documents or reports pursuant to
either of such sections, then to file with the
Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time
by the Commission, such of the supplementary and
periodic information, documents and reports which
may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and
registered on a national securities exchange as
may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time
by the Commission, such additional information,
documents and reports with respect to compliance
by the Company with the conditions and covenants
provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by
mail to all holders of Securities, as the names
and addresses of such holders appear upon the
Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any
information, documents and reports required to be
filed by the Company pursuant to subsections (a)
and (b) of this Section 4.03 as may be required by
rules and regulations prescribed from time to time
by the Commission.
(d) Delivery of such reports, information and
documents to the Trustee is for informational
purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any
information contained therein or determinable
from information contained therein, including the
Company's compliance with any of its covenants
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hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the
Securities to qualify for an exemption under Rule
144A under the Securities Act, the Company shall,
upon request, provide the information required by
clause (d)(4) thereunder to each Holder and to
each beneficial owner and prospective purchaser of
Securities identified by each Holder of Restricted
Securities, unless such information is furnished
to the Commission pursuant to Section 13 or 15(d)
of the Exchange Act.
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Trustee
shall, within sixty days after each May 15
following the date of this Indenture, commencing
May 15, 1998, deliver to Holders a brief report,
dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of
such transmission to Securityholders, be filed by
the Trustee with each stock exchange, if any,
upon which the Securities are listed, with the
Commission and with the Company. The Company will
promptly notify the Trustee when the Securities
are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall
constitute an Event of Default hereunder (whatever the reason for
such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgement, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
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(a) default in the payment of any interest upon any
Security or, if such default results in
acceleration, any Other Debentures when it becomes
due and payable, and continuance of such default
for a period of 30 days; provided, however, that a
valid extension of an interest payment period by
the Company in accordance with the terms hereof
or, in the case of any Other Debentures, the
indenture related thereto, shall not constitute a
default in the payment of interest for this
purpose; or
(b) default in the payment of all or any part of the
principal of (or premium, if any, on) any
Security or, if such default results in
acceleration, any Other Debentures as and when
the same shall become due and payable either at
maturity, upon prepayment, by declaration of
acceleration or otherwise; or
(c) default in any material respect in the
performance, or breach, of any covenant or
warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance
of such default or breach for a period of 90 days
after there has been given, by registered or
certified mail, to the Company by the Trustee or
to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the
outstanding 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; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of
the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the
Company or for any substantial part of its
property, or ordering the winding-up or
liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under
any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall
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consent to the entry of an order for relief in an
involuntary case under any such law, or shall
consent to the appointment of or taking
possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other
similar official) of the Company or of any
substantial part of its property, or shall make
any general assignment for the benefit of
creditors, or shall fail generally to pay its
debts as they become due.
If an Event of Default with respect to Securities at
the time outstanding occurs and is continuing, then in every such
case the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities then outstanding may declare
the principal amount of all Securities to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by the holders of the outstanding Securities),
and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the
Securities shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i)
the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay (A) all matured installments of interest upon
all the Securities and the principal of and premium, if any, on
any and all Securities which shall have become due otherwise than
by acceleration (with interest upon such principal and premium,
if any, and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest specified in
the Securities to the date of such payment or deposit) and (B)
such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or
bad faith, and (ii) if any and all Events of Default under the
Indenture, other than the non-payment of the principal of the
Securities which shall have become due solely by such declaration
of acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then, in every such case, the
holders of a majority in aggregate principal amount of the
Securities then outstanding, by written notice to the Company and
to the Trustee, may rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
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In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Securities shall be
restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company,
the Trustee and the holders of the Securities shall continue as
though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit
Therefor.
The Company covenants that (a) in case default shall
be made in the payment of any installment of interest upon any of
the Securities as and when the same shall become due and payable,
and such default shall have continued for a period of 30 days, or
(b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Securities as and when the
same shall have become due and payable, whether at maturity of
the Securities or upon prepayment or by declaration of
acceleration or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders
of the Securities, the whole amount that then shall have become
due and payable on all such Securities for principal and premium,
if any, or interest, or both, as the case may be, with interest
upon the overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under
applicable law and, if the Securities are held by ALBANK Capital
Trust or a trustee of such trust, without duplication of any
other amounts paid by ALBANK Capital Trust or trustee in respect
thereof) upon the overdue installments of interest at the rate
borne by the Securities; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or
liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
any other obligor on the Securities and collect in the manner
provided by law out of the property of the Company or any other
obligor on the Securities wherever situated the moneys adjudged
or decreed to be payable.
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In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Securities under Title 11, United States Code, or
any other applicable law, or in case a receiver or trustee shall
have been appointed for the property of the Company or such other
obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities, or
to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove
a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Securities and, in case of any
judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in such judicial proceedings relative to
the Company or any other obligor on the Securities, or to the
creditors or property of the Company or such other obligor,
unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings,
and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same
after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of negligence or bad faith.
Nothing herein contained shall be construed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any holder thereof or to authorize the Trustee
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to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under
this Indenture, or under any of the Securities, may be enforced
by the Trustee without the possession of any of the Securities,
or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Securities.
In any proceedings brought by the Trustee (and also
any proceedings involving the interpretation of any provision of
this Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the holders of the Securities, and
it shall not be necessary to make any holders of the Securities
parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by
Trustee.
Any moneys collected by the Trustee shall be applied
in the order following, at the date or dates fixed by the Trustee
for the distribution of such moneys, upon presentation of the
Securities in respect of which moneys have been collected, and
stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses of
collection applicable to the Securities and reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of
the Company if and to the extent required by Article Fifteen;
Third: To the payment of the amounts then due and
unpaid upon Securities for principal of (and premium, if any) and
interest on the Securities, in respect of which or for the
benefit of which money has been collected, ratably, without
preference of priority of any kind, according to the amounts due
on such Securities for principal (and premium, if any) and
interest, respectively; and
Fourth: To the Company.
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SECTION 5.04. Proceedings by Securityholders.
No holder of any Security shall have any right by
virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance
thereof with respect to the Securities specifying such Event of
Default, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities
then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action, suit or proceeding, it being understood and intended, and
being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that
no one or more holders of Securities shall have any right in any
manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any
other holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all holders of Securities.
Notwithstanding any other provisions in this
Indenture, however, the right of any holder of any Security to
receive payment of the principal of (premium, if any) and
interest on such Security, on or after the same shall have become
due and payable, or to institute suit for the enforcement of any
such payment, shall not be impaired or affected without the
consent of such holder and by accepting a Security hereunder it
is expressly understood, intended and covenanted by the taker and
holder of every Security with every other such taker and holder
and the Trustee, that no one or more holders of Securities shall
have any right in any manner whatsoever by virtue or by availing
of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other Securities, or
to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Securities. For the
protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
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The Company and the Trustee acknowledge that pursuant
to the Declaration, the holders of Capital Securities are
entitled, in the circumstances and subject to the limitations set
forth therein, to commence a Direct Action with respect to any
Event of Default under this Indenture and the Securities.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to
Securities and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section
2.08, all powers and remedies given by this Article Five to the
Trustee or to the Securityholders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of
the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with respect
to the Securities, and no delay or omission of the Trustee or of
any holder of any of the Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee
or to the Securityholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders.
The holders of a majority in aggregate principal
amount of the Securities at the time outstanding shall 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; provided, however,
that (subject to the provisions of Section 6.01) the Trustee
shall have the right to decline to follow any such direction if
the Trustee shall determine that the action so directed would be
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unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors
or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the
Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Securities, the holders of a
majority in aggregate principal amount of the Securities at the
time outstanding may on behalf of the holders of all of the
Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of
or premium, if any, or interest on any of the Securities or (b)
in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each
Security affected; provided, however, that if the Securities are
held by Property Trustee, such waiver or modification to such
waiver shall not be effective until the holders of a majority in
aggregate liquidation amount of Trust Securities shall have
consented to such waiver or modification to such waiver; provided
further, that if the consent of the holder of each outstanding
Security is required, such waiver shall not be effective until
each holder of the Trust Securities shall have consented to such
waiver. Upon any such waiver, the default covered thereby shall
be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Securities shall be
restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived
as permitted by this Section 5.07, said default or Event of
Default shall for all purposes of the Securities and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence
of a default with respect to the Securities, mail to all
Securityholders, as the names and addresses of such holders
appear upon the Security register, notice of all defaults known
to the Trustee, unless such defaults shall have been cured before
the giving of such notice (the term "defaults" for the purpose of
this Section 5.08 being hereby defined to be the events specified
in clauses (a), (b), (c), (d) and (e) of Section 5.01, not
including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in clause
(c) of Section 5.01); and provided that, except in the case of
default in the payment of the principal of or premium, if any, or
interest on any of the Securities, the Trustee shall be protected
in withholding such notice if and so long as the board of
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directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the Securityholders; and provided further, that in
the case of any default of the character specified in Section
5.01(c) no such notice to Securityholders shall be given until at
least 60 days after the occurrence thereof but shall be given
within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder
of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in aggregate principal amount of the
Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security
against the Company on or after the same shall have become due
and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default
which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture.
In case an Event of Default has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
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No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct,
except that
(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of
Default which may have occurred
(1) the duties and obligations of the Trustee
shall be determined solely by the express
provisions of this Indenture, and the
Trustee shall not be liable except for the
performance of such duties and obligations
as are specifically set forth in this
Indenture, and no implied covenants or
obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the 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 Trustee and conforming to
the requirements of this Indenture; but, in
the case of any such certificates or
opinions which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty
to examine the same to determine whether or
not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible
Officer or Responsible Officers, unless it shall
be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(c) the 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 Securityholders pursuant to Section 5.07,
relating to the time, method and place of
conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture;
and
(d) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its
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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 there is reasonable ground for
believing that the repayment of such funds or
liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to
it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
bond, note, debenture or other paper or document
believed by it to be genuine and to have been
signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the
Company mentioned herein may be sufficiently
evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant
Secretary of the Company;
(c) the Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel
shall be full and complete authorization and
protection in respect of any action taken or
suffered omitted by it hereunder in good faith
and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it
by this Indenture at the request, order or
direction of any of the Securityholders, pursuant
to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee
security or indemnity reasonably satisfactory to
it against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed
by it to be authorized or within the discretion or
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rights or powers conferred upon it by this
Indenture; nothing contained herein shall,
however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default (that
has not been cured or waived), to exercise such
of the rights and powers vested in it by this
Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would
exercise or use under the circumstances in the
conduct of his own affairs;
(f) the 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,
consent, order, approval, bond, debenture, coupon
or other paper or document, unless requested in
writing to do so by the holders of a majority in
aggregate principal amount of the outstanding
Securities; provided, however, that if the payment
within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be
incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expense
or liability as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents
(including any Authenticating Agent) or
attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any such agent or attorney appointed
by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities
(except in the certificate of authentication of the Trustee or
the Authenticating Agent) shall be taken as the statements of the
Company and the Trustee and the Authenticating Agent assume no
responsibility for the correctness of the same. The Trustee and
the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities.
The Trustee and the Authenticating Agent shall not be accountable
for the use or application by the Company of any Securities or
the proceeds of any Securities authenticated and delivered by the
Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture. The Trustee shall not be charged
with knowledge of any default or Event of Default under Section
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5.01(a) or (b) relating to Other Debentures unless (i) a
Responsible Officer of the Trustee assigned to its Principal
Office shall have actual knowledge thereof or (ii) the Company,
any Securityholder or the holder of any Other Debenture shall
have given the Trustee written notice thereof in accordance with
Section 13.04.
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May
Own Securities.
The Trustee or any Authenticating Agent or any paying
agent or any transfer agent or any Security registrar, in its
individual or any other capacity, may become the owner or pledgee
of Securities with the same rights it would have if it were not
Trustee, Authenticating Agent, paying agent, transfer agent or
Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Trustee or any paying agent shall, until used or
applied as herein provided, be held in trust for the purpose for
which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee and any
paying agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Company. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such
moneys shall be paid from time to time upon the written order of
the Company, signed by the Chairman of the Board of Directors,
the President or a Vice President or the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as issuer of the Securities, covenants
and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be
agreed to in writing between the Company and the Trustee (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company
will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly
in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also
covenants to indemnify each of the Trustee and any predecessor
Trustee (and its officers, agents, directors and employees) for,
and to hold them harmless against, any and all loss, damage,
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claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence
or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the
Company under this Section 6.06 to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Securities.
Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses or
renders services in connection with an Event of Default specified
in Section 5.01(d) or Section 5.01(e), the expenses (including
the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses
of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the
termination of this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and
6.02, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.
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SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times 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 other Person
permitted to act as trustee by the Commission 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 aforesaid
supervising or examining authority, then for the purposes of this
Section 6.09 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.
The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09,
the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving
written notice of such resignation to the Company
and by mailing notice thereof to the holders of
the Securities at their addresses as they shall
appear on the Security register. Upon receiving
such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees
by written instrument, in duplicate, one copy of
which instrument shall be delivered to the
resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been
so appointed and have accepted appointment within
60 days after the mailing of such notice of
resignation to the affected Securityholders, the
resigning Trustee may petition any court of
competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has
been a bona fide holder of a Security for at least
six months may, subject to the provisions of
Section 5.09, on behalf of himself and all others
similarly situated, petition any such court for
the appointment of a successor trustee. Such
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court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall
occur:
(1) the Trustee shall fail to comply with the
provisions of Section 6.08 after written
request therefor by the Company or by any
Securityholder who has been a bona fide
holder of a Security or Securities for at
least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section
6.09 and shall fail to resign after written
request therefor by the Company or by any
such Securityholder, or
(3) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any
public officer shall take charge or control
of the Trustee or of its property or affairs
for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove
the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of
which instrument shall be delivered to the
Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section
5.09, any Securityholder who has been a bona fide
holder of a Security for at least six months may,
on behalf of himself and all others similarly
situated, petition any court of competent
jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such
court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) Upon prior written notice to the Company and the
Trustee, the holders of a majority in aggregate
principal amount of the Securities at the time
outstanding may at any time remove the Trustee
and nominate a successor trustee, which shall be
deemed appointed as successor trustee unless
within 10 days after such nomination the Company
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objects thereto or if no successor trustee shall
have been so appointed and shall have accepted
appointment within 30 days after such removal, in
which case the Trustee so removed or any
Securityholder, upon the terms and conditions and
otherwise as in subsection (a) of this Section
6.10 provided, may petition any court of
competent jurisdiction for an appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to
any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment
by the successor trustee as provided in Section
6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section
6.10 shall execute, acknowledge and deliver to the Company and to
its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
retiring trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations
of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver
an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act and shall duly
assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Company shall execute
any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or
collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as
provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the
provisions of Section 6.08 and eligible under the provisions of
Section 6.09.
Upon acceptance of appointment by a successor trustee
as provided in this Section 6.11, the Company shall mail notice
of the succession of such trustee hereunder to the holders of
Securities at their addresses as they shall appear on the
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Security register. If the Company fails to mail such notice
within 10 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice
to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties
hereto.
In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any
Securities shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the
full force which the Securities or this Indenture elsewhere
provides that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate
Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent included therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Company with
power to act on its behalf and subject to its direction in the
authentication and delivery of Securities issued upon exchange or
transfer thereof as fully to all intents and purposes as though
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any such Authenticating Agent had been expressly authorized to
authenticate and deliver Securities; provided, that the Trustee
shall have no liability to the Company for any acts or omissions
of the Authenticating Agent with respect to the authentication
and delivery of Securities. Any such Authenticating Agent shall
at all times be a corporation organized and doing business under
the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws
to act as Authenticating Agent, having a combined capital and
surplus of at least $50,000,000 and being 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 the requirements
of such authority, then for the purposes of this Section 6.14 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. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this
Section.
Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or
any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.14 without the execution
or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible
under this Section 6.14, the Trustee may, and upon the request of
the Company shall, promptly appoint a successor Authenticating
Agent eligible under this Section 6.14, shall give written notice
of such appointment to the Company and shall mail notice of such
appointment to all Securityholders as the names and addresses of
such holders appear on the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent herein.
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The Company, as borrower, agrees to pay to any
Authenticating Agent from time to time reasonable compensation
for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount
of the Securities may take any action (including the making of
any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) the fact that at the
time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed
by such Securityholders in person or by agent or proxy appointed
in writing, or (b) by the record of such holders of Securities
voting in favor thereof at any meeting of such Securityholders
duly called and held in accordance with the provisions of Article
Eight, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of such Securityholders.
If the Company shall solicit from the Securityholders
any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record
date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action or to revoke any such action, but the
Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation may be given before
or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding
Securities shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
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SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Sections 6.01, 6.02 and
8.05, proof of the execution of any instrument by a
Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be
proved by the Security Register or by a certificate of the
Security registrar. The Trustee may require such additional proof
of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be
proved in the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer
of any Security, the Company, the Trustee, any Authenticating
Agent, any paying agent, any transfer agent and any Security
registrar may deem the Person in whose name such Security shall
be registered upon the Security Register to be, and may treat him
as, the owner of such Security (whether or not such Security
shall be overdue) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and (subject to
Section 2.06) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent
nor any Security registrar shall be affected by any notice to the
contrary. All such payments so made to any holder for the time
being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite
aggregate principal amount of Securities have concurred in any
direction, consent or waiver under this Indenture, Securities
which are owned by the Company or any other obligor on the
Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company, except Securities held by the Trust, or any other
obligor on the Securities shall be disregarded and deemed not to
be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent or
waiver, only Securities which the Trustee actually knows are so
owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as outstanding for the
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purposes of this Section 7.04 if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right to vote such
Securities and that the pledgee is not the Company or any such
other obligor or Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as to
such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders
Bound.
At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 7.01, of the taking of any
action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution
therefor) the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee at
its Principal Office and upon proof of holding as provided in
Section 7.02, revoke such action so far as concerns such Security
(or so far as concerns the principal amount represented by any
exchanged or substituted Security). Except as aforesaid any such
action taken by the holder of any Security shall be conclusive
and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange
or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time
and from time to time pursuant to the provisions of this Article
Eight for any of the following purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any
Default hereunder and its consequences, or to
take any other action authorized to be taken by
Securityholders pursuant to any of the provisions
of Article Five;
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(b) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article Six;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the
provisions of Section 9.02; or
(d) to take any other action authorized to be taken
by or on behalf of the holders of any specified
aggregate principal amount of such Securities
under any other provision of this Indenture or
under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 8.01, to
be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to
holders of Securities at their addresses as they shall appear on
the Securities Register. Such notice shall be mailed not less
than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or
Securityholders.
In case at any time the Company pursuant to a
resolution of the Board of Directors, or the holders of at least
10% in aggregate principal amount of the Securities then
outstanding, shall have requested the Trustee to call a meeting
of Securityholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or
such Securityholders may determine the time and the place in the
Borough of Manhattan, The City of New York for such meeting and
may call such meeting to take any action authorized in Section
8.01, by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of
Securityholders a Person shall be (a) a holder of one or more
Securities or (b) a Person appointed by an instrument in writing
as proxy by a holder of one or more Securities. The only Persons
who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee
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and its counsel and any representatives of the Company and its
counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Securityholders, in regard
to proof of the holding of Securities and of the appointment of
proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
think fit.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Securityholders as
provided in Section 8.03, in which case the Company or the
Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to the provisions of Section 8.04, at any
meeting each holder of Securities or proxy therefor shall be
entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities
held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 8.02 or 8.03 may be
adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
The Persons entitled to vote a majority in principal
amount of the outstanding Securities shall constitute a quorum
for a meeting of Holders; provided, however, that if any action
is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action
which may be given by the Holders of not less than a specified
percentage in principal amount of the outstanding Securities, the
Persons holding or representing such specified percentage in
principal amount of the outstanding Securities will constitute a
quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at
the request of Holders, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as
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determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 8.02, except that
such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal
amount of the outstanding Securities which shall constitute a
quorum.
Except as limited by the first proviso to the first
paragraph of Section 9.02, any resolution presented to a meeting
or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding
Securities; provided, however, that, except as limited by the
first proviso to the first paragraph of Section 9.02, any
resolution with respect to any consent, waiver, request, demand,
notice, authorization, direction or other action which this
Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the
outstanding Securities may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is
present as aforesaid only by the affirmative vote of the Holders
of not less than such specified percentage in principal amount of
the outstanding Securities.
Any resolution passed or decision taken at any meeting
of Holders duly held in accordance with this Section shall be
binding on all the Holders whether or not present or represented
at the meeting.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting
of holders of Securities shall be by written ballots on which
shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the
Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting
of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having
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knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in
Section 8.02. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. The holders of
the Series A Capital Securities and the Series B Capital
Securities shall vote or consent for all purposes as a single
class.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company and the Trustee may from time to time and
at any time amend the Indenture, without the consent of the
Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation
to the Company, or successive successions, and
the assumption by the successor corporation of
the covenants, agreements and obligations of the
Company pursuant to Article Ten hereof;
(b) to add to the covenants of the Company such
further covenants, restrictions or conditions for
the protection of the Securityholders as the Board
of Directors and the Trustee shall consider to be
for the protection of the Securityholders, and to
make the occurrence, or the occurrence and
continuance, of a default in any of such
additional covenants, restrictions or conditions a
Default or an Event of Default permitting the
enforcement of all or any of the remedies provided
in this Indenture as herein set forth; provided,
however, that in respect of any such additional
covenant, restriction or condition such amendment
may provide for a particular period of grace after
default (which period may be shorter or longer
than that allowed in the case of other Defaults)
or may provide for an immediate enforcement upon
such default or may limit the remedies available
to the Trustee upon such default;
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(c) to provide for the issuance under this Indenture
of Securities in coupon form (including
Securities registrable as to principal only) and
to provide for exchangeability of such Securities
with the Securities issued hereunder in fully
registered form and to make all appropriate
changes for such purpose;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained
herein or in any supplemental indenture, or to
make such other provisions in regard to matters or
questions arising under this Indenture; provided
that any such action shall not materially
adversely affect the interests of the holders of
the Securities;
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with
respect to the Securities;
(f) to make provision for transfer procedures,
certification, book-entry provisions, the form of
restricted securities legends, if any, to be
placed on Securities, and all other matters
required pursuant to Section 2.07 or otherwise
necessary, desirable or appropriate in connection
with the issuance of Securities to holders of
Capital Securities in the event of a distribution
of Securities by ALBANK Capital Trust following a
Dissolution Event;
(g) to qualify or maintain qualification of this
Indenture under the Trust Indenture Act; or
(h) to make any change that does not adversely affect
the rights of any Securityholder in any material
respect.
The Trustee is hereby authorized to join with the
Company in the execution of any supplemental indenture to effect
such amendment, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Any amendment to this Indenture authorized by the
provisions of this Section 9.01 may be executed by the Company
and the Trustee without the consent of the holders of any of the
Securities at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section
7.01) of the holders of a majority in aggregate principal amount
of the Securities at the time outstanding, the Company, when
authorized by a Board Resolution, and the Trustee may from time
to time and at any time amend this Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the holders of the Securities; provided,
however, that no such amendment shall without the consent of the
holders of each Security then outstanding and affected thereby
(i) change the Maturity Date of any Security, or reduce the rate
or extend the time of payment of interest thereon (except as
contemplated by Article Sixteen), or reduce the principal amount
thereof, or reduce any amount payable on prepayment thereof, or
make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that provided in the
Securities, or impair or affect the right of any Securityholder
to institute suit for payment thereof, or (ii) reduce the
aforesaid percentage of Securities the holders of which are
required to consent to any such amendment to this Indenture,
provided, however, that if the Securities are held by ALBANK
Capital Trust, such amendment shall not be effective until the
holders of a majority in liquidation amount of Trust Securities
shall have consented to such amendment; provided, further, that
if the consent of the holder of each outstanding Security is
required, such amendment shall not be effective until each holder
of the Trust Securities shall have consented to such amendment.
Upon the request of the Company accompanied by a copy
of a resolution of the Board of Directors certified by its
Secretary or Assistant Secretary authorizing the execution of any
supplemental indenture affecting such amendment, and upon the
filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, prepared by the Company, setting forth
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in general terms the substance of such supplemental indenture, to
the Securityholders as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 9.02 to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to the
provisions of this Article Nine shall comply with the Trust
Indenture Act. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Nine, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the
execution of any supplemental indenture affecting such series
pursuant to the provisions of this Article Nine may bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or
the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee or the Authenticating Agent
and delivered in exchange for the Securities then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee.
The Trustee, subject to the provisions of Sections
6.01 and 6.02, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant hereto complies with the requirements
of this Article Nine. The Trustee may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and
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conforms to, the terms of this Article and that it is proper for
the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE X
CONSOLIDATION, CONVERSION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain
Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation, conversion or merger
of the Company with or into any other Person (whether or not
affiliated with the Company, as the case may be), or successive
consolidations, conversions or mergers in which the Company or
its successor or successors, as the case may be, shall be a party
or parties, or shall prevent any sale, conveyance, transfer or
lease of the property of the Company or its successor or
successors, as the case may be, as an entirety, or substantially
as an entirety, to any other Person (whether or not affiliated
with the Company or its successor or successors, as the case may
be) authorized to acquire and operate the same; provided, that
(a) the Company is the surviving Person, or the Person formed by
or surviving any such consolidation, conversion or merger (if
other than the Company) or to which such sale, conveyance,
transfer or lease of property is made is a Person organized and
existing under the laws of the United States or any State thereof
or the District of Columbia, and (b) upon any such consolidation,
conversion, merger, sale, conveyance, transfer or lease, the due
and punctual payment of the principal of (and premium, if any)
and interest on the Securities according to their tenor and the
due and punctual performance and observance of all the covenants
and conditions of this Indenture to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture
Act, as then in effect) satisfactory in form to the Trustee, and
executed and delivered to the Trustee by the Person formed by
such consolidation or conversion, or into which the Company shall
have been converted or merged, or by the Person which shall have
acquired such property, as the case may be, (c) after giving
effect to such consolidation, conversion, merger, sale,
conveyance, transfer or lease, no Default or Event of Default
shall have occurred and be continuing and (d) such consolidation,
conversion, merger, sale, conveyance, transfer or lease does not
cause the Securities to be downgraded by a nationally recognized
statistical rating organization.
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SECTION 10.02. Successor Corporation to be Substituted
for Company.
In case of any such consolidation, conversion, merger,
conveyance or transfer and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and premium, if any, and
interest on all of the Securities and the due and punctual
performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Company,
such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as
the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon
the Securities. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of
ALBANK Financial Corporation, any or all of the Securities
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee or the Authenticating
Agent; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the
Authenticating Agent shall authenticate and deliver any
Securities which previously shall have been signed and delivered
by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which
such successor Person thereafter shall cause to be signed and
delivered to the Trustee or the Authenticating Agent for that
purpose. All the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections
6.01 and 6.02, may receive an Opinion of Counsel as conclusive
evidence that any consolidation, merger, sale, conveyance,
transfer or lease, and any assumption, permitted or required by
the terms of this Article Ten complies with the provisions of
this Article Ten.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than
any Securities which shall have been destroyed, lost or stolen
and which shall have been replaced (as provided in Section 2.08))
and not theretofore cancelled, or (b) all the Securities not
theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for prepayment within one year under arrangements
satisfactory to the Trustee for the giving of notice of
prepayment, and the Company shall deposit or cause to be
deposited with the Trustee, in trust, funds sufficient to pay on
the Maturity Date or upon prepayment all of the Securities (other
than any Securities which shall have been destroyed, lost or
stolen and which shall have been replaced (as provided in Section
2.08)) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal and premium, if any, and
interest due or to become due to the Maturity Date or prepayment
date, as the case may be, but excluding, however, the amount of
any moneys for the payment of principal of or premium, if any, or
interest on the Securities (1) theretofore repaid to the Company
in accordance with the provisions of Section 11.04, or (2) paid
to any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the
Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be
of further effect except for the provisions of Sections 2.02,
2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof, which
shall survive until such Securities shall mature and be paid.
Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers'
Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company,
however, hereby agreeing to reimburse the Trustee for any costs
or expenses thereafter reasonably and properly incurred by the
Trustee in connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee.
Subject to the provisions of Section 11.04, all moneys
and U.S. Government Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.05 shall be held in trust and
applied by it to the payment, either directly or through any
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paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the
payment of which such moneys or U.S. Government Obligations have
been deposited with the Trustee, of all sums due and to become
due thereon for principal, premium, if any, and interest.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
Section 11.05 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law
is for the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture
all moneys then held by any paying agent of the Securities (other
than the Trustee) shall, upon written demand of the Company, be
repaid to it or paid to the Trustee, and thereupon such paying
agent shall be released from all further liability with respect
to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or
any paying agent for payment of the principal of or premium, if
any, or interest on Securities and not applied but remaining
unclaimed by the holders of Securities for two years after the
date upon which the principal of or premium, if any, or interest
on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such
paying agent on written demand; and the holder of any of the
Securities shall thereafter look only to the Company for any
payment which such holder may be entitled to collect and all
liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.
The Company shall be deemed to have been Discharged
(as defined below) from its obligations with respect to the
Securities on the 91st day after the applicable conditions set
forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the
Defeasance Agent (as defined below) as trust
funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the
holders of the Securities (i) money in an amount,
or (ii) U.S. Government Obligations which through
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the payment of interest and principal in respect
thereof in accordance with their terms will
provide, not later than one day before the due
date of any payment, money in an amount, or (iii)
a combination of (i) and (ii), sufficient, in the
opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee and the
Defeasance Agent, if any, to pay and discharge
each installment of principal of and interest and
premium, if any, on the outstanding Securities on
the dates such installments of principal,
interest or premium are due;
(2) if the Securities are then listed on any national
securities exchange, the Company shall have
delivered to the Trustee and the Defeasance
Agent, if any, an Opinion of Counsel to the
effect that the exercise of the option under this
Section 11.05 would not cause such Securities to
be delisted from such exchange;
(3) no Default or Event of Default with respect to
the Securities shall have occurred and be
continuing on the date of such deposit; and
(4) the Company shall have delivered to the Trustee
and the Defeasance Agent, if any, an Opinion of
Counsel to the effect that holders of the
Securities will not recognize income, gain or
loss for United States federal income tax
purposes as a result of the exercise of the
option under this Section 11.05 and will be
subject to United States federal income tax on
the same amount and in the same manner and at the
same times as would have been the case if such
option had not been exercised, and such opinion
shall be based on a statute so providing or be
accompanied by a private letter ruling to that
effect received from the United States Internal
Revenue Service or a revenue ruling pertaining to
a comparable form of transaction to that effect
published by the United States Internal Revenue
Service.
"Discharged" means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by,
and obligations under, the Securities and to have satisfied all
the obligations under this Indenture relating to the Securities
(and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund
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described in clause (1) above, payment of the principal of and
the interest and premium, if any, on the Securities when such
payments are due; (B) the Company's obligations with respect to
the Securities under Sections 2.02, 2.07, 2.08, 3.02, 5.02, 6.10
and 11.04; and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution
which is eligible to act as Trustee hereunder and which assumes
all of the obligations of the Trustee necessary to enable the
Trustee to act hereunder. In the event such a Defeasance Agent is
appointed pursuant to this Section, the following conditions
shall apply:
(1) the Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's
rights and responsibilities; and
(2) the Defeasance Agent shall provide verification to
the Trustee acknowledging receipt of sufficient
money and/or U. S. Government Obligations to meet
the applicable conditions set forth in this
Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations.
No recourse for the payment of the principal of or
premium, if any, or interest on any Security, or for any claim
based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the
Company in this Indenture, or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor
Person to the Company, either directly or through the Company or
any successor Person to the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and
agreements in this Indenture contained by the Company shall bind
its successors and assigns whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done
and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by
authority of 2/3 (two-thirds) of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to
any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Securities on the Company may be
given or served by being deposited postage prepaid by registered
or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee for the
purpose) to the Company, 10 North Pearl Street, Albany, New York
12207, Attention: General Counsel. Any notice, direction, request
or demand by any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the office of the Trustee,
addressed to the Trustee, 450 West 33rd Street, 15th Floor, New
York, New York 10001, Attention: Corporate Trustee Administration
Department (unless another address is provided by the Trustee to
the Company for the purpose).
Any notice or communication to a Holder shall be
mailed by first class mail to his or her address shown on the
register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
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SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be
a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance
with the laws of said State, without regard to conflicts of laws
principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.
Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that in the opinion of the signers all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture
(except certificates delivered pursuant to Section 3.05) shall
include (1) a statement that the person making such certificate
or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of
or premium, if any, or interest on the Securities will not be a
Business Day, the payment of such principal of or premium, if
any, or interest on the Securities need not be made on such date
but may be made on the next succeeding Business Day, with the
same force and effect as if made on the date of payment and no
interest shall accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, such imposed duties shall control.
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SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of
the articles and sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This 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.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in
this Indenture or in the Securities 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 Indenture or of the Securities, but this
Indenture and the Securities shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign
any of its respective rights or obligations under this Indenture
to a direct or indirect wholly owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company,
as the case may be, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective
successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 13.13. Acknowledgement of Rights.
The Company acknowledges that, with respect to any
Securities held by ALBANK Capital Trust or a trustee of such
trust, if the Property Trustee of such Trust fails to enforce its
rights under this Indenture as the holder of the Securities held
as the assets of ALBANK Capital Trust any holder of Capital
Securities may institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under this
Indenture without first instituting any legal proceedings against
such Property Trustee or any other Person or entity.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the
failure of the Company to pay principal of or premium, if any, or
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interest on the Securities when due, the Company acknowledges
that a holder of Capital Securities may directly institute a
proceeding for enforcement of payment to such holder of the
principal of or premium, if any, or interest on the Securities
having a principal amount equal to the aggregate liquidation
amount of the Capital Securities of such holder on or after the
respective due date specified in the Securities.
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Special Event Prepayment.
If a Special Event has occurred and is continuing
then, notwithstanding Section 14.02(a) but subject to Section
14.02(c), the Company shall have the right at any time prior to
the Initial Optional Prepayment Date, upon not (i) less than 45
days' written notice to the Trustee, which notice shall be
accompanied by an Officers' Certificate certifying that a Special
Event entitling the Company to redeem the Securities pursuant to
this Section, has occurred and (ii) less than 30 days' nor more
than 60 days' written notice to the Securityholders, to prepay
the Securities, in whole (but not in part), within 90 days
following the occurrence of such Special Event at the Special
Event Prepayment Price. Following a Special Event, the Company
shall take such action as is necessary to promptly determine the
Special Event Prepayment Price, including without limitation the
appointment by the Company of a Quotation Agent. The Special
Event Prepayment Price shall be paid prior to 12:00 noon, New
York time, on the date of such prepayment or such earlier time as
the Company determines, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Special Event
Prepayment Price by 10:00 a.m., New York time, on the date such
Special Event Prepayment Price is to be paid. The Company shall
provide the Trustee with written notice of the Special Event
Prepayment Price promptly after the calculation thereof, which
notice shall include any calculation made by the Quotation Agent
in connection with the determination of the Special Event
Prepayment Price.
SECTION 14.02. Optional Prepayment by Company.
(a) Subject to the provisions of this Article
Fourteen, the Company shall have the right to prepay the
Securities, in whole or in part, from time to time, on or after
the Initial Optional Prepayment Date at the optional prepayment
prices set forth below (expressed as percentages of principal)
plus, in each case, accrued and unpaid interest thereon
(including Additional Interest and Compounded Interest, if any)
to the applicable date of prepayment (the "Optional Prepayment
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Price") if prepaid during the 12-month period beginning June 6 of
the years indicated below.
Year Percentage
2007.......................... 104.635%
2008.......................... 104.172%
2009.......................... 103.708%
2010.......................... 103.245%
2011.......................... 102.781%
2012.......................... 102.318%
2013.......................... 101.854%
2014.......................... 101.391%
2015.......................... 100.927%
2016.......................... 100.464%
2017 and thereafter........... 100.000%
If the Securities are only partially prepaid pursuant
to this Section 14.02, the Securities will be prepaid pro rata or
by lot or by any other method utilized by the Trustee; provided,
that if at the time of prepayment the Securities are registered
as a Global Security, the Depositary shall determine, in
accordance with its procedures, the principal amount of
Securities held by each holder of a Security to be prepaid. The
Optional Prepayment Price shall be paid prior to 12:00 noon, New
York time, on the date of such prepayment 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
Prepayment Price by 10:00 a.m., New York time, on the date such
Optional Prepayment Price is to be paid.
(b) Notwithstanding the first sentence of Section
14.02(a), upon the entry of an order for dissolution of the
ALBANK Capital Trust by a court of competent jurisdiction, the
Securities thereafter will be subject to optional prepayment, in
whole only, but not in part, on or after June 6, 2007, at the
optional prepayment prices set forth in Section 14.02 and
otherwise in accordance with this Article Fourteen.
(c) Any prepayment of Securities pursuant to Section
14.01 or Section 14.02 shall be subject to the receipt by the
Company of any required regulatory approval.
SECTION 14.03. No Sinking Fund.
The Securities are not entitled to the benefit of any
sinking fund.
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SECTION 14.04. Notice of Prepayment; Selection of
Securities.
In case the Company shall desire to exercise the right
to prepay all, or, as the case may be, any part of the Securities
in accordance with their terms, it shall fix a date for
prepayment and shall mail a notice of such prepayment at least 30
and not more than 60 days prior to the date fixed for prepayment
to the holders of Securities so to be prepaid as a whole or in
part at their last addresses as the same appear on the Security
Register. Such mailing shall be by first class mail. The notice
if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Security
designated for prepayment as a whole or in part shall not affect
the validity of the proceedings for the prepayment of any other
Security.
Each such notice of prepayment shall specify the CUSIP
number of the Securities to be prepaid, the date fixed for
prepayment, the prepayment price at which the Securities are to
be prepaid (or the method by which such prepayment price is to be
calculated), the place or places of payment, that payment will be
made upon presentation and surrender of the Securities, that
interest accrued to the date fixed for prepayment will be paid as
specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be prepaid will
cease to accrue. If less than all the Securities are to be
prepaid the notice of prepayment shall specify the numbers of the
Securities to be prepaid. In case any Security is to be prepaid
in part only, the notice of prepayment shall state the portion of
the principal amount thereof to be prepaid and shall state that
on and after the date fixed for prepayment, upon surrender of
such Security, a new Security or Securities in principal amount
equal to the unprepaid portion thereof will be issued.
By 10:00 a.m., New York time, on the prepayment date
specified in the notice of prepayment given as provided in this
Section, the Company will deposit with the Trustee or with one or
more paying agents an amount of money sufficient to prepay on the
prepayment date all the Securities so called for prepayment at
the appropriate Prepayment Price, together with accrued interest
to the date fixed for prepayment.
The Company will give the Trustee notice not less than
45 days prior to the prepayment date as to the aggregate
principal amount of Securities to be prepaid and the Trustee
shall select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Securities or portions thereof (in
integral multiples of $1,000, except as otherwise set forth in
the applicable form of Security) to be prepaid.
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SECTION 14.05. Payment of Securities Called for
Prepayment.
If notice of prepayment has been given as provided in
Section 14.04, the Securities or portions of Securities with
respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such
notice at the applicable Prepayment Price, together with interest
accrued to the date fixed for prepayment (subject to the rights
of holders of Securities on the close of business on a regular
record date in respect of an Interest Payment Date occurring on
or prior to the prepayment date), and on and after said date
(unless the Company shall default in the payment of such
Securities at the Prepayment Price, together with interest
accrued to said date) interest on the Securities or portions of
Securities so called for prepayment shall cease to accrue. On
presentation and surrender of such Securities at a place of
payment specified in said notice, the said Securities or the
specified portions thereof shall be prepaid by the Company at the
applicable Prepayment Price, together with interest accrued
thereon to the date fixed for prepayment (subject to the rights
of holders of Securities on the close of business on a regular
record date in respect of an Interest Payment Date occurring on
or prior to the prepayment date).
Upon presentation of any Security prepaid in part
only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder
thereof, at the expense of the Company, a new Security or
Securities of authorized denominations, in principal amount equal
to the unprepaid portion of the Security so presented.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of
Securities issued hereunder likewise covenants and agrees, that
the Securities shall be issued subject to the provisions of this
Article Fifteen; and each holder of a Security, whether upon
original issue or upon transfer or assignment thereof, accepts
and agrees to be bound by such provisions.
The payment by the Company of the principal of,
premium, if any, and interest on all Securities issued hereunder
shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to all Senior
Indebtedness, whether outstanding at the date of this Indenture
or thereafter incurred.
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No provision of this Article Fifteen shall prevent the
occurrence of any Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
No payment of principal (including prepayment) of,
premium, if any, or interest on the Securities may be made at any
time when (i) any Senior Indebtedness 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) the maturity of any Senior Indebtedness has been
accelerated because of a default.
In the event of the acceleration of the maturity of
the Securities due to an Event of Default, then no payment shall
be made by the Company with respect to the principal (including
prepayments) of or premium, if any, or interest on the Securities
until the holders of all Senior Indebtedness outstanding at the
time of such acceleration shall receive payment in full of all
amounts due in respect of such Senior Indebtedness (including any
amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraphs of this Section 15.02,
such payment shall be held in trust for the benefit of, and shall
be paid over or delivered to, the holders of Senior Indebtedness
or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a
trustee) notify the Trustee in writing, within 90 days of such
payment of the amounts then due and owing on such Senior
Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all
Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its
terms, before any payment is made by the Company on account of
the principal (and premium, if any) or interest with respect to
the Securities; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
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whether in cash, property or securities, to which the
Securityholders or the Trustee would be entitled to receive from
the Company, except for the provisions of this Article Fifteen,
shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution, or by the Securityholders or by the
Trustee under this Indenture if received by them or it, directly
to the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company)
or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to
pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders or to the
Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee before all Senior
Indebtedness is paid in full, or provision is made for such
payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been
issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay such
Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
For purposes of this Article Fifteen, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Fifteen with respect to the Securities to the payment of Senior
Indebtedness that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation,
if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company
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with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms
and conditions provided for in Article Ten of this Indenture
shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger,
sale, conveyance, transfer or lease, comply with the conditions
stated in Article Ten of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior
Indebtedness, the rights of the Securityholders shall be
subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company, as the case may be,
applicable to such Senior Indebtedness until the principal of
(and premium, if any) and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the
provisions of this Article Fifteen, and no payment over pursuant
to the provisions of this Article Fifteen to or for the benefit
of the holders of such Senior Indebtedness by Securityholders or
the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness of the Company, and the
holders of the Securities, be deemed to be a payment by the
Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article Fifteen are and
are intended solely for the purposes of defining the relative
rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere
in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the
holders of Senior Indebtedness of the Company, and the holders of
the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest on the Securities
as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the
Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Trustee or the holder of
any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Fifteen of the holders of such
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Senior Indebtedness in respect of cash, property or securities of
the Company, as the case may be, received upon the exercise of
any such remedy.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's
acceptance thereof authorizes and directs the Trustee on such
Securityholder's behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this
Article Fifteen and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Securities pursuant to the provisions of this
Article Fifteen. Notwithstanding the provisions of this Article
Fifteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the
provisions of this Article Fifteen, unless and until a
Responsible Officer of the Trustee assigned to its Principal
Office shall have received written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from any
trustee therefor or representative thereof; and before the
receipt of any such written notice, the Trustee, subject to the
provisions of Article Six of this Indenture, shall be entitled in
all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business Days
prior to the date (i) upon which by the terms hereof any money
may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any)
or interest on any Security), or (ii) moneys and/or U.S.
Government Obligations are deposited in trust pursuant to Article
Eleven then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any notice
to the contrary that may be received by it within two Business
Days prior to such date.
The Trustee, subject to the provisions of Article Six
of this Indenture, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness of the Company (or
a trustee or representative on behalf of such holder), to
establish that such notice has been given by a holder of such
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<PAGE>
Senior Indebtedness or a trustee or representative on behalf of
any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution
pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such
Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article
Fifteen, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the
Company referred to in this Article Fifteen, the Trustee and the
Securityholders shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee
for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fifteen.
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fifteen in
respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article Fifteen, and no implied covenants or
obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of such Senior Indebtedness and, subject to
the provisions of Article Six of this Indenture, the Trustee
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<PAGE>
shall not be liable to any holder of such Senior Indebtedness if
it shall pay over or deliver to Securityholders, the Company or
any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article
Fifteen or otherwise.
Nothing in this Article Fifteen shall apply to claims
of, or payments to, the Trustee under or pursuant to Section
6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company, as the
case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the
Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the Securityholders,
without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this
Article Fifteen or the obligations hereunder of the holders of
the Securities to the holders of such Senior Indebtedness, do any
one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement
in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company, as the case may be, and any other
Person.
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ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and
from time to time during the term of the Securities, to defer
payments of interest by extending the interest payment period of
such Securities for a period not exceeding 10 consecutive
semi-annual periods, including the first such semi-annual period
during such extension period (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 shall end on a date other than an
Interest Payment Date or 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 16.01, will bear interest
thereon at the Coupon Rate compounded semi-annually for each
semi-annual period 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 Securities, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall be
payable to the holders of the Securities in whose names the
Securities are registered in the Security Register on the first
record date preceding the end of such Extended Interest Payment
Period. During any Extended Interest Payment Period, the Company
may further defer payments of interest by extending such period,
provided that such period, together with all such previous and
further extensions of such Extended Interest Payment Period,
shall not exceed 10 consecutive semi-annual periods, including
the first such semi-annual period during such Extended Interest
Payment Period, or extend beyond the Maturity Date. Upon the
termination of any Extended Interest Payment Period and the
payment of all Deferred Interest then due, the Company may elect
to 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
portion of the interest accrued during an Extended Interest
Payment Period.
SECTION 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered
holder of the Securities at the time the Company selects an
Extended Interest Payment Period, the Company shall give written
notice to the Administrators and the Property Trustee of its
selection of such Extended Interest Payment Period five Business
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Days before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities issued by ALBANK Capital
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 any national securities exchange or to holders of the
Capital Securities issued by the Trust, but in any event at least
five Business Days before such record date.
(b) If the Property Trustee is not the only holder of
the Securities at the time the Company selects an Extended
Interest Payment Period, the Company shall give the holders of
the Securities 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 any
national securities exchange.
The Chase Manhattan Bank hereby accepts the trusts in
this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above
written.
ALBANK FINANCIAL CORPORATION
By /s/ Richard J. Heller
-----------------------------------
Name: Richard J. Heller
Title: Executive Vice President
and Chief Financial Officer
The Chase Manhattan Bank,
as Trustee
By /s/ Gregory P. Shea
-----------------------------------
Name: Gregory P. Shea
Title: Senior Trust Officer
<PAGE>
EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS
SECURITY IS A GLOBAL SECURITY 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 SECURITY IS
EXCHANGEABLE FOR SECURITIES 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
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY 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 SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
[IF THIS SECURITY IS A RESTRICTED SECURITY, INSERT:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES
LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE
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TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF THE COMPANY PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY, AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE
TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM
DATED JUNE 4, 1997 RELATING TO THIS SECURITY. SUCH HOLDER FURTHER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.]
[IF THE SECURITY IS A SERIES A CAPITAL SECURITY,
INSERT: THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS
DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF A
REGISTRATION RIGHTS AGREEMENT AMONG ALBANK CAPITAL TRUST I (THE
"TRUST"), ALBANK FINANCIAL CORPORATION (THE "COMPANY") AND
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED DATED JUNE 6,
1997 (THE "REGISTRATION RIGHTS AGREEMENT"). THE COMPANY WILL
PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE TRUST AT ITS PRINCIPAL
PLACE OF BUSINESS.]
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<PAGE>
No. Cusip No.
ALBANK FINANCIAL CORPORATION
9.27% SERIES __ JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE, DUE JUNE 6, 2027
ALBANK Financial Corporation, a Delaware corporation
(the "Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to ____________________________________ or
registered assigns, the principal sum of ______________________
________________________________________ on _____ __, 2027 (the
"Maturity Date"), unless previously prepaid, and to pay interest
on the outstanding principal amount hereof from June 6, 1997 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, semi-annually (subject to deferral as set forth
herein) in arrears on June 6 and December 6 of each year,
commencing December 6, 1997 at the rate of 9.27% 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 semi-annually. 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
and, for any period less than a full calendar month, the number
of days elapsed in such month. In the event that any date on
which the principal of (or premium, if any) or interest on this
Security is payable is not a Business Day, then payment 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), 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 Security (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 fifteenth day prior to the relevant Interest Payment Date.
Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the holders
on such regular record date and may be paid to the Person in
whose name this Security (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 holders of
Securities 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 Securities may be listed, and
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<PAGE>
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 interest on
this Security 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 (i) check mailed to the holder entitled thereto at
such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been
received by the paying agent by the relevant record date.
Notwithstanding the foregoing, so long as the Holder of this
Security is the Property Trustee, the payment of the principal of
(and premium, if any) and interest on this Security will be made
at such place and to such account as may be designated by the
Property Trustee.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and junior in right
of payment to the prior payment in full of Senior Indebtedness,
and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, 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 Security shall not be entitled to any benefit
under the Indenture hereinafter referred to, or be valid or
become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
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<PAGE>
The provisions of this Security are continued on the
reverse side hereof and such 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.
ALBANK FINANCIAL CORPORATION
By: ____________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: ______________
The Chase Manhattan Bank,
as Trustee
By: ____________________
Authorized Officer
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<PAGE>
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company
(herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued under and pursuant to
an Indenture, dated as of June 6, 1997 (the "Indenture"), duly
executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), to which Indenture
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
Securities.
Upon the occurrence and continuation of a Special
Event, the Company shall have the right at any time prior to June
6, 2007 (the "Initial Optional Prepayment Date"), within 90 days
following the occurrence of such Special Event to prepay this
Security in whole (but not in part) at the Special Event
Prepayment Price. "Special Event Prepayment Price" shall mean,
with respect to any prepayment of the Securities following a
Special Event, an amount in cash equal to the greater of (i) 100%
of the principal amount to be prepaid or (ii) the sum, as
determined by a Quotation Agent, of the present value of 100% of
the principal amount thereof plus the scheduled payments of
interest thereon on the Securities from the prepayment date to
and including the Initial Optional Prepayment Date, discounted to
the prepayment date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury
Rate, plus any accrued and unpaid interest thereon, including
Compounded Interest and Additional Interest, if any, to the date
of such prepayment.
In addition, the Company shall have the right to
prepay this Security, in whole or in part, at any time on or
after the Initial Optional Prepayment Date (an "Optional
Prepayment"), at the prepayment prices as set forth below
(expressed as percentages of principal to be prepaid) plus, in
each case, accrued and unpaid interest thereon (including
Additional Interest and Compounded Interest, if any) to the
applicable date of prepayment (the "Optional Prepayment Price"),
if prepaid during the 12-month period beginning June 6 of the
years indicated below.
Year Percentage
2007......................104.635%
2008......................104.172%
2009......................103.708%
2010......................103.245%
2011......................102.781%
2012......................102.318%
2013......................101.854%
2014......................101.391%
2015......................100.927%
2016......................100.464%
2017 and thereafter.......100.000%
A-6
<PAGE>
The Optional Prepayment Price or the Special Event
Prepayment Price, as the case requires, shall be paid prior to
12:00 noon, New York time, on the date of such prepayment or at
such earlier time as the Company determines, provided, that the
Company shall deposit with the Trustee an amount sufficient to
pay the applicable Prepayment Price by 10:00 a.m., New York City
time, on the date such Prepayment Price is to be paid. Any
prepayment pursuant to this paragraph will be made upon not less
than 30 days nor more than 60 days notice. If the Securities are
only partially prepaid by the Company pursuant to an Optional
Prepayment, the Securities will be prepaid pro rata or by lot or
by any other method utilized by the Trustee; provided that if, at
the time of prepayment, the Securities are registered as a Global
Security, the Depositary shall determine in accordance with its
procedures the principal amount of such Securities held for the
account of its participants to be prepaid.
In the event of prepayment of this Security in part
only, a new Security or Securities for the unprepaid portion
hereof will be issued in the name of the holder hereof upon the
cancellation hereof.
Notwithstanding the foregoing, any prepayment of
Securities by the Company shall be subject to the receipt by the
Company of the approval of any required regulatory approval.
In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal
of all of the Securities 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 a
majority in aggregate principal amount of the Securities 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 modifying in any manner the rights of the
holders of the Securities; provided, however, that no such
supplemental indenture shall, without the consent of each holder
of Securities then outstanding and affected thereby, (i) extend
the Maturity Date of any Securities, or reduce the principal
amount thereof, or reduce any amount payable on prepayment
thereof, or reduce the rate or extend the time of payment of
interest thereon (subject to Article Sixteen of the Indenture),
or make the principal of, or interest or premium on, the
Securities payable in any coin or currency other than U.S.
dollars, or impair or affect the right of any holder of
Securities to institute suit for the payment thereof, or (ii)
reduce the aforesaid percentage of Securities, the holders of which
are required to consent to any such supplemental indenture. The
Indenture also contains provisions permitting the holders of a
A-7
<PAGE>
majority in aggregate principal amount of the Securities at the
time outstanding, on behalf of all of the holders of the
Securities, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default
in the payment of the principal of or premium, if any, or
interest on any of the Securities or a default in respect of any
covenant or provision which under the Indenture cannot be
modified or amended without the consent of each holder of
Securities then outstanding. Any such consent or waiver by the
holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and
upon all future holders and owners of this Security and of any
Security 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 Security.
No reference herein to the Indenture and no provision
of this Security 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
Security at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right, at any time and from
time to time during the term of the Securities, to defer payments
of interest by extending the interest payment period of such
Securities for a period not exceeding 10 consecutive semi-annual
periods, including the first such semi-annual period during such
extension period, and not to extend beyond the Maturity Date of
the Securities (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 Securities to the extent that payment of such
interest is enforceable under applicable law). Before the
termination of any such Extended Interest Payment Period, the
Company may further defer payments of interest by further
extending such Extended Interest Payment Period, provided that
such Extended Interest Payment Period, together with all such
previous and further extensions within such Extended Interest
Payment Period, (i) shall not exceed 10 consecutive semi-annual
periods, including the first semi-annual period during such
Extended Interest Payment Period, (ii) shall not end on any date
other than an Interest Payment Date and (iii) shall not extend
beyond the Maturity Date of the Securities. Upon the termination
of any such Extended Interest Payment Period and the payment of
all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Company has agreed that it will not (i) declare or
pay any dividends or distributions on, or redeem, purchase,
A-8
<PAGE>
acquire, or make a liquidation payment with respect to, any of
the Company's capital stock (which includes common and preferred
stock), (ii) make any payment of principal, interest or premium,
if any, with respect to or repay, repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in
right of payment to the Securities or (iii) make any guarantee
payments with respect to any guarantee by the Company of the debt
securities or any Subsidiary of the Company (including any Other
Guarantees) if such guarantee ranks pari passu or junior in right
of payment to the Securities (other than (a) dividends or
distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, Common Stock of the Company;
(b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto; (c) payments
under the Capital Securities Guarantee; (d) as a result of a
reclassification of the Company's capital stock or the exchange
or the conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock;
(e) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the exchange or conversion of
such capital stock or the security being exchanged or converted;
and (f) purchases of Common Stock related to the issuance of
Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees or any of the Company's
dividend reinvestment plans) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that
(a) is, or with the giving of notice or the lapse of time, or
both, would be, an Event of Default and (b) in respect of which
the Company shall not have taken reasonable steps to cure, (ii)
if the Securities are held by ALBANK Capital Trust, the Company
shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the
Company shall have given notice of its election of the exercise
of its right to extend the interest payment period and any such
extension shall be continuing.
The Securities are issuable only in registered form
without coupons in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof. As provided in the
Indenture and subject to the transfer restrictions limitations as
may be contained herein and therein from time to time, this
Security is transferable by the holder hereof on the Security
Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company
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 Security registrar duly executed by the holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities 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
A-9
<PAGE>
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 Security, the Company, the Trustee, any authenticating
agent, any paying agent, any transfer agent and the registrar may
deem and treat the registered holder hereof as the owner hereof
(whether or not this Security 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 (subject to the Indenture) interest due
hereon and for all other purposes, and neither the Company nor
the Trustee nor any authenticating agent nor any paying agent nor
any transfer agent nor any registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest on this Security, 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 Person, 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.
All terms used in this Security that are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
A-10
<PAGE>
CERTIFICATE OF TRUST
OF
ALBANK CAPITAL TRUST I
THIS Certificate of Trust of ALBANK Capital Trust I
(the "Trust"), dated as of April 3, 1997, is being duly executed
and filed by the undersigned, as trustees, to create a business
trust under the Delaware Business Trust Act (12 Del. C. ss.3801,
et seq.).
1. Name. The name of the business trust created hereby is ALBANK
Capital Trust I.
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 Chase Manhattan Bank Delaware, 1201
Market Street, Wilmington, Delaware 19801.
3. Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the
trustees of the Trust, have executed this Certificate of Trust as
of the date first-above written.
CHASE MANHATTAN BANK DELAWARE,
not in its individual capacity but solely
as trustee of the Trust
By: /s/ John J. Cashin
--------------------
Name: John J. Cashin
Title: Senior Trust Officer
THE CHASE MANHATTAN BANK, not in its indi-
vidual capacity but solely as trustee of
the Trust
By: /s/ Gregory P. Shea
---------------------
Name: Gregory P. Shea
Title: Senior Trust Officer
=====================================================
AMENDED AND RESTATED DECLARATION
OF TRUST
ALBANK Capital Trust I
Dated as of June 6, 1997
=====================================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
INTERPRETATION AND DEFINITIONS
SECTION 1.1 Definitions..................................... 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................ 10
SECTION 2.2 Lists of Holders of Securities.................. 11
SECTION 2.3 Reports by the Property Trustee................. 11
SECTION 2.4 Periodic Reports to Property Trustee............ 11
SECTION 2.5 Evidence of Compliance with Conditions
Precedent....................................... 12
SECTION 2.6 Events of Default; Waiver....................... 12
SECTION 2.7 Event of Default; Notice........................ 14
ARTICLE III
ORGANIZATION
SECTION 3.1 Name............................................ 15
SECTION 3.2 Office.......................................... 15
SECTION 3.3 Purpose......................................... 15
SECTION 3.4 Authority....................................... 16
SECTION 3.5 Title to Property of the Trust.................. 16
SECTION 3.6 Powers and Duties of the Trustees and the
Administrators.................................. 16
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees........................................ 22
SECTION 3.8 Powers and Duties of the Property Trustee....... 23
SECTION 3.9 Certain Duties and Responsibilities of the
Property Trustee................................ 25
SECTION 3.10 Certain Rights of the Property Trustee.......... 27
SECTION 3.11 Delaware Trustee................................ 30
SECTION 3.12 Execution of Documents.......................... 30
SECTION 3.13 Not Responsible for Recitals or Issuance of
Securities...................................... 30
SECTION 3.14 Duration of Trust............................... 30
SECTION 3.15 Mergers......................................... 31
ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities......... 33
i
<PAGE>
Page
SECTION 4.2 Responsibilities of the Sponsor................. 33
SECTION 4.3 Right to Proceed................................ 34
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee... 34
SECTION 5.2 Delaware Trustee................................ 35
SECTION 5.3 Property Trustee; Eligibility................... 35
SECTION 5.4 Certain Qualifications of Administrators and
Delaware Trustee Generally...................... 36
SECTION 5.5 Administrators.................................. 36
SECTION 5.6 Delaware Trustee................................ 37
SECTION 5.7 Appointment, Removal and Resignation of
Trustees........................................ 37
SECTION 5.8 Vacancies of Trustees........................... 39
SECTION 5.9 Effect of Vacancies............................. 39
SECTION 5.10 Meetings........................................ 39
SECTION 5.11 Delegation of Power............................. 40
Section 5.12 Merger, Conversion, Consolidation or
Succession to Business.......................... 40
ARTICLE VI
DISTRIBUTIONS
SECTION 6.1 Distributions................................... 40
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities......... 41
SECTION 7.2 Execution and Authentication.................... 42
SECTION 7.3 Form and Dating................................. 43
SECTION 7.4 Registrar, Paying Agent and Exchange Agent...... 45
SECTION 7.5 Paying Agent to Hold Money in Trust............. 45
SECTION 7.6 Replacement Securities.......................... 46
SECTION 7.7 Outstanding Capital Securities.................. 46
SECTION 7.8 Capital Securities in Treasury.................. 46
SECTION 7.9 Temporary Securities............................ 47
SECTION 7.10 Cancellation.................................... 48
SECTION 7.11 CUSIP Numbers................................... 48
ii
<PAGE>
Page
ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust............................ 49
ARTICLE IX
TRANSFER OF INTERESTS
SECTION 9.1 Transfer of Securities.......................... 50
SECTION 9.2 Transfer Procedures and Restrictions............ 51
SECTION 9.3 Book Entry Interests............................ 59
SECTION 9.4 Notices to Clearing Agency...................... 60
SECTION 9.5 Appointment of Successor Clearing Agency........ 60
ARTICLE X
LIMITATION OF LIABILITY OF
HOLDERS OF SECURITIES, TRUSTEES OR OTHERS
SECTION 10.1 Liability....................................... 61
SECTION 10.2 Exculpation..................................... 61
SECTION 10.3 Fiduciary Duty.................................. 62
SECTION 10.4 Indemnification................................. 63
SECTION 10.5 Outside Businesses.............................. 66
SECTION 10.6 Compensation Fees................................66
ARTICLE XI
ACCOUNTING
SECTION 11.1 Fiscal Year..................................... 67
SECTION 11.2 Certain Accounting Matters...................... 67
SECTION 11.3 Banking......................................... 68
SECTION 11.4 Withholding..................................... 68
ARTICLE XII
AMENDMENTS AND MEETINGS
SECTION 12.1 Amendments...................................... 68
SECTION 12.2 Meetings of the Holders; Action by Written
Consent......................................... 70
ARTICLE XIII
REPRESENTATIONS OF PROPERTY TRUSTEE
AND DELAWARE TRUSTEE
SECTION 13.1 Representations and Warranties of Property
Trustee......................................... 72
SECTION 13.2 Representations and Warranties of Delaware
Trustee......................................... 73
iii
<PAGE>
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement................... 73
ARTICLE XV
MISCELLANEOUS
SECTION 15.1 Notices......................................... 74
SECTION 15.2 Governing Law................................... 75
SECTION 15.3 Intention of the Parties........................ 75
SECTION 15.4 Headings........................................ 75
SECTION 15.5 Successors and Assigns.......................... 75
SECTION 15.6 Partial Enforceability.......................... 76
SECTION 15.7 Counterparts.................................... 76
ANNEX I TERMS OF SECURITIES.............................I-1
EXHIBIT A-1 FORM OF CAPITAL SECURITY CERTIFICATE.......... A1-1
EXHIBIT A-2 FORM OF COMMON SECURITY CERTIFICATE........... A2-1
EXHIBIT B SPECIMEN OF DEBENTURE...........................B-1
EXHIBIT C PURCHASE AGREEMENT..............................C-1
iv
<PAGE>
AMENDED AND RESTATED
DECLARATION OF TRUST
OF
ALBANK Capital Trust I
June 6, 1997
AMENDED AND RESTATED DECLARATION OF TRUST
("Declaration") dated and effective as of June 6, 1997, by the
Trustees (as defined herein), the Sponsor (as defined herein) the
Administrators (as defined herein) and by the holders, from time
to time, of undivided beneficial interests in the assets of the
Trust to be issued pursuant to this Declaration;
WHEREAS, the Trustees and the Sponsor established
ALBANK Capital Trust I (the "Trust"), a trust created under the
Delaware Business Trust Act pursuant to a Declaration of Trust
dated as of April 3, 1997 (the "Original Declaration"), and a
Certificate of Trust filed with the Secretary of State of the
State of Delaware on April 3, 1997, 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
(each as hereinafter defined) and engaging in only those
activities necessary or advisable or incidental thereto;
WHEREAS, prior to the date hereof, no Securities (as
defined herein) have been issued;
WHEREAS, all of the Trustees and the Sponsor, 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>
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 or elsewhere herein 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 (including Annexes and
Exhibits) 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 term defined in the Indenture (as defined
herein) has the same meaning when used in this Declaration
unless otherwise defined in this Declaration or the context
otherwise requires; and
(g) a reference to the singular includes the plural
and vice versa.
"Administrators" means each of Richard J. Heller,
Barry G. Blenis and Freling H. Smith solely in such Person's
capacity as Administrator of the Trust created and continued
hereunder and not in such Person's individual capacity, or such
Administrator's successor in interest in such capacity, or any
successor appointed as herein provided.
"Affiliate" has the same meaning as given to that term
in Rule 405 under the Securities Act or any successor rule
thereunder.
"Agent" means any Paying Agent, Registrar or Exchange
Agent.
2
<PAGE>
"Authorized Officer" of a Person means any other
Person that is authorized to legally bind such former Person.
"Book Entry Interest" means a beneficial interest in a
Global Certificate registered in the name of a Clearing Agency or
its nominee, ownership and transfers of which shall be maintained
and made through book entries by a Clearing Agency as described
in Section 9.2.
"Business Day" means any day other than a Saturday or
a Sunday or a day on which banking institutions in The City of
New York or Wilmington, Delaware are authorized or required by
law or executive order to close.
"Business Trust Act" means Chapter 38 of Title 12 of
the Delaware Code, 12 Del. C. ss. 3801 et seq., as it may be
amended from time to time, or any successor legislation.
"Capital 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).
"Capital Securities" means, collectively, the Series A
Capital Securities and the Series B Capital Securities.
"Capital Securities Guarantee" means, collectively, the
Series A Capital Securities Guarantee and the Series B Capital
Securities Guarantee.
"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 Capital 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 Capital
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 Time" means the "Closing Time" under the
Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor legislation.
3
<PAGE>
"Commission" means the United States Securities and
Exchange Commission as from time to time constituted, or if any
time after the execution of this Declaration such Commission is
not existing and performing the duties now assigned to it under
applicable Federal securities laws, then the body performing such
duties at such time.
"Common Securities" has the meaning specified in
Section 7.1(a).
"Common Securities Guarantee" means the guarantee
agreement dated as of June 6, 1997 of the Sponsor in respect of
the Common Securities.
"Common Securities Subscription Agreement" means the
Common Securities Subscription Agreement, dated June 6, 1997, by
and between the Debenture Issuer and the Trust.
"Company Indemnified Person" means (a) any
Administrator; (b) any Affiliate of any Administrator; (c) any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Administrator; 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
Declaration located at 450 West 33rd Street, 15th Floor, New
York, New York 10001.
"Covered Person" means: (a) any officer, director,
trustee, 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 ALBANK Financial Corporation,
a Delaware corporation, or any successor entity resulting from
any consolidation, amalgamation, merger or other business
combination, in its capacity as issuer of the Debentures under
the Indenture.
"Debenture Subscription Agreement" means the Debenture
Subscription Agreement, dated June 6, 1997, by and between the
Debenture Issuer and the Trust.
"Debenture Trustee" means The Chase Manhattan Bank, a
New York banking corporation, as trustee under the Indenture
until a successor is appointed thereunder, and thereafter means
such successor trustee.
4
<PAGE>
"Debentures" means, collectively, the Series A
Debentures and the Series B Debentures.
"Default" means an event, act or condition that with
notice or lapse of time, or both, would constitute an Event of
Default.
"Definitive Capital Securities" has the meaning set
forth in Section 7.3(c).
"Delaware Trustee" has the meaning set forth in Section
5.2.
"Direct Action" has the meaning set forth in Section
3.8(e).
"Distribution" means a distribution payable to Holders
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) that has
occurred and is continuing in respect of the Debentures.
"Exchange Act" means the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation.
"Exchange Agent" has the meaning set forth in Section
7.4.
"Exchange Offer" means the offer that may be made
pursuant to the Registration Rights Agreement (i) by the Trust to
exchange Series B Capital Securities for Series A Capital
Securities and (ii) by the Debenture Issuer to exchange Series B
Debentures for Series A Debentures and the Series B Capital
Securities Guarantee for the Series A Capital Securities
Guarantee.
"Extension Period" has the meaning set forth in Section
2(b) of Annex I.
"Federal Reserve Board" means the Board of Governors of
the Federal Reserve System.
"Fiduciary Indemnified Person" has the meaning set
forth in Section 10.4(b).
"Global Capital Security" has the meaning set forth in
Section 7.3(b).
5
<PAGE>
"Holder" means a Person in whose name 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 Indenture dated as of June 6,
1997, between the Debenture Issuer and the Debenture Trustee, as
amended from time to time.
"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.
"Legal Action" has the meaning set forth in Section 3.6
(A)(ii)(j).
"Liquidation Amount" with respect to any Security
means the amount designated as such with respect thereto as set
forth in Annex I hereto.
"Majority in Liquidation Amount" means, with respect
to the Trust Securities, except as provided in the terms of the
Capital Securities or by the Trust Indenture Act, Holder(s) of
outstanding Trust Securities voting together as a single class
or, as the context may require, Holders of outstanding Capital
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.
"Offering Memorandum" has the meaning set forth in
Section 3.6(b).
"Officers' Certificate" means, with respect to any
Person, a certificate signed by one of the following: the
Chairman, a Vice Chairman, the Chief Executive Officer, the
President, a Vice President (whether or not designated by a
number or a word or words added before or after such title), the
Comptroller, the Secretary or an Assistant Secretary. Any
Officers' Certificate delivered with respect to compliance with a
condition or covenant provided for in this Declaration shall
include:
6
<PAGE>
(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.
"Opinion of Counsel" means a written opinion of
counsel, who may be an employee of the Sponsor.
"Paying Agent" has the meaning specified in Section
7.4.
"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.
"Property Trustee" has the meaning set forth in Section
5.3(a).
"Property Trustee Account" has the meaning set forth in
Section 3.8(c).
"Purchase Agreement" means the Purchase Agreement for
the initial offering and sale of Capital Securities in the form
of Exhibit C.
"QIBs" shall mean qualified institutional buyers as
defined in Rule 144A.
"Quorum" means a majority of the Administrators or, if
there are only two Administrators, both of them.
"Registrar" has the meaning set forth in Section 7.4.
"Registration Rights Agreement" means the Registration
Rights Agreement dated as of June 6, 1997, by and among the
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Trust, the Debenture Issuer and the Initial Purchaser named
therein, as amended from time to time.
"Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Related Party" means, with respect to the Sponsor,
any direct or indirect wholly owned subsidiary of the Sponsor or
any other Person that owns, directly or indirectly, 100% of the
outstanding voting securities of the Sponsor.
"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 secretary, any assistant secretary,
the treasurer, any assistant treasurer, any trust officer, any
senior trust officer 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.
"Restricted Capital Security" has the meaning set forth
in Section 7.3(c).
"Restricted Definitive Capital Securities" has the
meaning set forth in Section 7.3(c).
"Restricted Global Capital Security" has the meaning
set forth in Section 7.3(a).
"Restricted Securities Legend" has the meaning set
forth in Section 9.2.
"Rule 3a-5" means Rule 3a-5 under the Investment
Company Act, or any successor rule or regulation.
"Rule 144" means Rule 144 under the Securities Act, as
such rule may be amended from time to time, or any similar rule
or regulation hereafter adopted by the Commission.
"Rule 144A" means Rule 144A under the Securities Act,
as such rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
"Securities" or "Trust Securities" means the Common
Securities and the Capital Securities.
"Securities Act" means the Securities Act of 1933, as
amended from time to time, or any successor legislation.
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"Securities Guarantees" means the Common Securities
Guarantee and the Capital Securities Guarantee.
"Series A Capital Securities" has the meaning specified
in Section 7.1(a).
"Series B Capital Securities" has the meaning specified
in Section 7.1(a).
"Series A Capital Securities Guarantee" means the
guarantee agreement dated as of June 6, 1997 of the Sponsor in
respect of the Series A Capital Securities.
"Series B Capital Securities Guarantee" means the
guarantee agreement to be entered in connection with the Exchange
Offer by the Sponsor in respect of the Series B Capital
Securities.
"Series A Debentures" means the 9.27% Series A Junior
Subordinated Deferrable Interest Debentures due June 6, 2027 of
the Debenture Issuer issued pursuant to the Indenture.
"Series B Debentures" means the 9.27% Series B Junior
Subordinated Deferrable Interest Debentures due June 6, 2027 of
the Debenture Issuer issued pursuant to the Indenture.
"Special Event" has the meaning set forth in Annex I
hereto.
"Sponsor" means ALBANK Financial Corporation, a
Delaware corporation, or any successor entity resulting from any
merger, consolidation, amalgamation or other business
combination, in its capacity as sponsor of the Trust.
"Subscription Agreements" means the Common Securities
Subscription Agreement and the Debenture Subscription Agreement.
"Super Majority" has the meaning set forth in Section
2.6(a)(ii).
"10% in Liquidation Amount" means, with respect to the
Trust Securities, except as provided in the terms of the Capital
Securities or by the Trust Indenture Act, Holders of outstanding
Trust Securities voting together as a single class or, as the
context may require, Holders of outstanding Capital 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 accumulated
and unpaid Distributions to the date upon which the voting
percentages are determined) of all outstanding Securities of the
relevant class.
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"Treasury Regulations" means the income tax
regulations, including temporary and proposed regulations,
promulgated under the Code by the United States Treasury, as such
regulations 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 as a trustee 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) any
cash on deposit in, or owing to, the Property Trustee Account and
(c) 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 this Declaration.
"Unrestricted Global Capital Security" has the meaning
set forth in Section 9.2(b).
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 in order for this Declaration to be a qualified
indenture under the Trust Indenture Act 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 ss.ss. 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 Sponsor and the Administrators on
behalf of the Trust shall provide the Property Trustee, unless
the Property Trustee is Registrar for the Securities (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 Capital
Securities ("List of Holders") as of such record date, provided
that neither the Sponsor nor the Administrators 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 Sponsor and
the Administrators 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 ss.ss. 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, commencing
May 15, 1998, the Property Trustee shall provide to the Holders
of the Capital Securities such reports as are required by ss.
313(a) of the Trust Indenture Act, if any, in the form and in the
manner provided by ss. 313 of the Trust Indenture Act. The
Property Trustee shall also comply with the other requirements of
ss. 313 of the Trust Indenture Act. The Sponsor shall promptly
notify the Property Trustee when the Capital Securities are
listed on any stock exchange.
SECTION 2.4 Periodic Reports to Property Trustee.
Each of the Sponsor and the Administrators on behalf
of the Trust shall provide to the Property Trustee such
documents, reports and information as are required by ss. 314 (if
any) and the compliance certificate required by ss. 314 of the
Trust Indenture Act in the form, in the manner and at the times
required by ss. 314(a)(4) of the Trust Indenture Act, such
compliance certificate to be delivered annually on or before 120
days after the end of each fiscal year of the Sponsor.
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SECTION 2.5 Evidence of Compliance with Conditions
Precedent.
Each of the Sponsor and the Administrators on behalf
of the Trust shall provide to the Property Trustee such evidence
as may be required by the Trust Indenture Act of compliance with
any conditions precedent provided for in this Declaration that
relate to any of the matters set forth in ss. 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by
an officer pursuant to ss. 314(c)(1) of the Trust Indenture Act
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
the Capital Securities may, by vote or consent, on behalf of the
Holders of all of the Capital Securities, waive any past Event of
Default in respect of the Capital 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 aggregate principal amount of the holders of
the Debentures (a "Super Majority") to be waived under the
Indenture, the Event of Default under this Declaration may
only be waived by the vote or consent of the Holders of at
least the proportion in aggregate Liquidation Amount of the
Capital 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 ss. 316(a)(1)(B) of the Trust Indenture Act and such ss.
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 Capital 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 Capital Securities or impair
any right consequent thereon. Any waiver by the Holders of the
Capital Securities of an Event of Default with respect to the
Capital 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.
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The Holders of a Majority in Liquidation Amount of the
Capital Securities shall 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, including
the right to direct the Property Trustee to exercise the remedies
available to it as a holder of the Debentures; provided, however,
that (subject to the provisions of Section 3.9) the Property
Trustee shall have the right to decline to follow any such
direction if the Property Trustee shall determine that the action
so directed would be unjustly prejudicial to the Holders not
taking part in such direction or if the Property Trustee, being
advised by counsel, determines that the action or proceeding so
directed may not lawfully be taken or if the Property Trustee, in
good faith, by its board of directors or trustees, executive
committee, or a trust committee of directors or trustees, and/or
Responsible Officers, shall determine that the action or
proceeding so directed would involve the Property Trustee in
personal liability.
(b) The Holders of a Majority in Liquidation Amount of
the Common Securities may, by vote or consent, 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:
(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 this 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 this Declaration as provided below in this Section
2.6(b), such Event of Default under this Declaration may
only be waived by the vote or consent of the Holders of at
least the proportion in aggregate Liquidation Amount of the
Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the
Debentures outstanding;
provided further, that, not withstanding (i) or (ii) above, each
Holder of the 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 if all Events of
Default with respect to the Capital 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
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Holders of the Capital Securities and only the Holders of the
Capital 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
ss.ss. 316(a)(1)(A) and 316(a)(1)(B) of the Trust Indenture Act
and such ss.ss. 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 Event of 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 Capital 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
ss. 316(a)(1)(B) of the Trust Indenture Act and such ss.
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.
SECTION 2.7 Event of Default; Notice.
(a) The Property Trustee shall, within 90 days after
the occurrence of an Event of Default known to a Responsible
Officer of the Property Trustee, transmit by mail, first class
postage prepaid, to the Holders, the Administrators and the
Sponsor, 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, 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.
(b) Within ten Business Days after the occurrence of
any Event of Default actually known to a Responsible Officer of
the Property Trustee, the Property Trustee shall transmit notice
of such Event of Default to the Holders of the Capital
Securities, the Administrators and the Sponsor, unless such Event
of Default shall have been cured or waived. The Sponsor and the
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Administrators shall file annually with the Property Trustee a
certification as to whether or not they are in compliance with
all the conditions and covenants applicable to them under this
Declaration.
(c) 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 the Property Trustee
shall have received written notice or of which a
Responsible Officer charged with the administration of this
Declaration shall have actual knowledge.
ARTICLE III
ORGANIZATION
SECTION 3.1 Name.
The Trust is named "ALBANK Capital Trust I" as such
name may be modified from time to time by the Administrators
following written notice to the Holders and the Trustees. The
Trust's activities may be conducted under the name of the Trust
or any other name deemed advisable by the Administrators.
SECTION 3.2 Office.
The address of the principal office of the Trust is
c/o ALBANK Financial Corporation, 10 North Pearl Street, Albany,
New York 12207. On ten Business Days written notice to the
Holders of Securities and the other Trustees, the Administrators
may designate another principal office.
SECTION 3.3 Purpose.
The exclusive purposes and functions of the Trust are
(a) to issue and sell the Trust Securities, (b) to use the
proceeds from the sale of the Securities to acquire the
Debentures, and (c) except as otherwise limited herein, to engage
in only those other activities necessary, advisable or incidental
thereto. The Trust shall not borrow money, issue debt or reinvest
proceeds derived from investments, mortgage or 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.
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SECTION 3.4 Authority.
Subject to the limitations provided in this
Declaration, the Property Trustee and the Administrators shall
have exclusive and complete authority to carry out the purposes
of the Trust. An action taken by the Administrators or any of
them 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 Property Trustee or an Administrator acting on
behalf of the Trust, no Person shall be required to inquire into
the authority of the Property Trustee or Administrator to bind
the Trust. Persons dealing with the Trust are entitled to rely
conclusively on the power and authority of the Property Trustee
or an Administrator as set forth in this Declaration. The
Administrators shall have only those ministerial duties set forth
herein with respect to accomplishing the purposes of the Trust
and are not intended to be trustees or fiduciaries with respect
to the Trust or the Holders. The Property Trustee shall have the
right, but shall not be obligated, except as provided in Section
3.6, to perform those duties assigned to the Administrators.
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 Trustees and the
Administrators.
(A) The Trustees and the Administrators shall conduct
the affairs of the Trust in accordance with the terms of this
Declaration. Subject to the limitations set forth in paragraph
(B) of this Section, and in accordance with the following
provisions (i) and (ii), the Trustees and/or the Administrators
shall have the authority to enter into all transactions and
agreements determined by the Trustees or the Administrators to be
appropriate in exercising the authority, express or implied,
otherwise granted to the Trustees or the Administrators, as the
case may be, under this Declaration, and to perform all acts in
furtherance thereof, including without limitation, the following:
(i) Each Administrator shall have the power and
authority to act on behalf of the Trust with respect to the
following matters:
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(a) to issue and sell the Securities in accordance
with this Declaration; provided, however, that the
issuance of Securities shall be limited to a
simultaneous issuance of both Capital Securities and
Common Securities at the Closing Time and the issuance
of Series B Capital Securities in exchange for Series
A Capital Securities pursuant to the Exchange Offer,
if any;
(b) in connection with the issue and sale of the
Capital Securities and the consummation of the
Exchange Offer, at the direction of the Sponsor, to:
(i) prepare and execute, if necessary, an
offering memorandum (the "Offering Memorandum")
in preliminary and final form prepared by the
Sponsor, in relation to the offering and sale of
Series A Capital Securities to qualified
institutional buyers in reliance on Rule 144A
under the Securities Act and to institutional
"accredited investors" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities
Act); and to execute and file with the
Commission, at such time as determined by the
Sponsor, any Registration Statement, including
any amendments thereto, as contemplated by the
Registration Rights Agreement;
(ii) execute and file any documents prepared by
the Sponsor, or take any acts as determined by
the Sponsor to be necessary in order to qualify
or register all or part of the Capital
Securities in any State in which the Sponsor has
determined to qualify or register such Capital
Securities for sale;
(iii) to execute and deliver letters,
documents, or instruments with DTC and other
Clearing Agencies relating to the Capital
Securities;
(iv) if required, execute and file with the
Commission a registration statement on Form 8-A,
including any amendments thereto, prepared by
the Sponsor, relating to the registration of the
Capital Securities under Section 12(b) of the
Exchange Act; and
(v) execute and enter into the Subscription
Agreements.
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(c) to acquire the Series A Debentures with the
proceeds of the sale of the Series A Capital
Securities and the Common Securities and to exchange
the Series A Debentures for a like principal amount of
Series B Debentures, pursuant to the Exchange Offer;
provided, however, that the Administrators 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;
(d) to give the Sponsor and the Property Trustee
prompt written notice of the occurrence of a Special
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 ss.316(c) of the Trust Indenture
Act, Distributions, voting rights, redemptions and
exchanges, and to issue relevant notices to the
Holders as to such actions and applicable record
dates;
(f) the taking of any action incidental to the
foregoing as the Administrators may from time to time
determine is necessary or advisable to give effect to
the terms of this Declaration for the benefit of the
Holders (without consideration of the effect of any
such action on any particular Holder);
(g) to give the certificate required by ss. 314(a)(4)
of the Trust Indenture Act to the Property Trustee,
which certificate may be executed by any
Administrator;
(h) to incur expenses that are necessary or
incidental to carry out any of the purposes of the
Trust;
(i) to act as, or appoint another Person to act as,
Registrar and Exchange Agent for the Securities or to
appoint a Paying Agent for the Securities as provided
in Section 7.4 except for such time as such power to
appoint a Paying Agent is vested in the Property
Trustee;
(j) to give prompt written notice to the Property
Trustee and to Holders 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;
(k) to execute all documents or instruments, perform
all duties and powers, and do all things for and on
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behalf of the Trust in all matters necessary or
incidental to the foregoing;
(l) to take all action necessary to consummate the
Exchange Offer or otherwise cause the Capital
Securities to be registered pursuant to an effective
registration statement in accordance with the
provisions of the Registration Rights Agreement.
(m) 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
Administrators, on behalf of the Trust.
The Administrators 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 Administrators 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 Administrators shall
have none of the powers or the authority of the Property Trustee
set forth in Section 3.8.
Any expenses incurred by the Administrators pursuant
to this Section 3.6 shall be reimbursed by the Debenture Issuer.
(ii) As among the Trustees and the Administrators, the
Property Trustee shall have the power, duty and authority to act
on behalf of the Trust with respect to the following matters:
(a) the establishment of the Property Trustee
Account;
(b) the receipt of the Debentures;
(c) the collection of interest, principal (and
premium, if any) and any other payments made in respect of
the Debentures in the Property Trustee Account;
(d) the distribution through the Paying Agent
of amounts owed to the Holders in respect of the Securities;
(e) the exercise of all of the rights, powers
and privileges of a holder of the Debentures;
(f) the sending of notices of default and other
information regarding the Securities and the Debentures to
the Holders in accordance with this Declaration;
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(g) the distribution of the Trust Property in
accordance with the terms of this Declaration;
(h) to the extent provided in this Declaration,
the winding up of the affairs of and liquidation of the
Trust and the preparation, execution and filing of the
certificate of cancellation with the Secretary of State of
the State of Delaware;
(i) subject to Section 3.9(a), after any Event
of Default (provided that such Event of Default is not by
or with respect to the Property Trustee), the taking of any
action incidental to the foregoing as the Property Trustee
may from time to time determine is necessary or advisable
to give effect to the terms of this Declaration and protect
and conserve the Trust Property for the benefit of the
Holders (without consideration of the effect of any such
action on any particular Holder);
(j) 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").
(B) So long as this Declaration remains in effect, the
Trust (or the Trustees or Administrators acting on behalf of the
Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated
hereby. In particular, neither the Trustees nor the
Administrators may cause the Trust to (i) acquire any investments
or engage in any activities not authorized by this Declaration,
(ii) sell, assign, transfer, exchange, mortgage, pledge, set-off
or otherwise dispose of any of the Trust Property or interests
therein, including to Holders, except as expressly provided
herein, (iii) take any action that would reasonably be expected
to cause the Trust to fail or cease to qualify as a "grantor
trust" for United States federal income tax purposes, (iv) incur
any indebtedness for borrowed money or issue any other debt or
(v) take or consent to any action that would result in the
placement of a lien on any of the Trust Property. The Property
Trustee shall at the sole cost and expense of the Trust defend
all claims and demands of all Persons at any time claiming any
lien on any of the Trust Property adverse to the interest of the
Trust or the Holders in their capacity as Holders.
(C) Notwithstanding anything herein to the contrary, the
Administrators, the Property Trustee and the Holders of a
Majority in liquidation amount of the Common Securities are
authorized and directed to conduct the affairs of the Trust and
to operate the Trust so that the Trust will not be deemed to be
an "investment company" required to be registered under the
Investment Company Act, or to be characterized as other than a
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grantor trust for United States federal income tax purposes and
so that the Debentures will be treated as indebtedness of the
Debenture Issuer for United States federal income tax purposes;
provided, however, that the Property Trustee shall not be
required to take any action pursuant to this paragraph (C) that
is not otherwise expressly required of the Property Trustee
pursuant to the terms of this Declaration. In this connection,
the Property Trustee, acting at the written direction of the
Holders of a Majority in liquidation amount of the Common
Securities, and the Holders of a Majority in liquidation amount
of the Common Securities are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust or
this Declaration, as amended from time to time,that the Holders
of a Majority in liquidation amount of Common Securities
determines in its discretion to be necessary or desirable for
such purposes, even if such action adversely affects the
interests of the Holders of the Capital Securities.
(D) the Property Trustee shall have the authority but
not the obligation, to take any action, not inconsistent with
this Declaration or with applicable law, that the Administrators
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:
(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;
(E) The duties and responsibilities of the Trustees
and the Administrators shall be as provided by this Declaration
and, in the case of the Property Trustee, by the Trust Indenture
Act. Notwithstanding the foregoing, no provision of this
Declaration shall require any Trustee or Administrator to expend
or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
adequate indemnity satisfactory to it against such risk or
liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Declaration
relating to the conduct or affecting the liability of or
affording protection to the Trustees or Administrators shall be
subject to the provisions of this Article. To the extent
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that, at law or in equity, a Trustee or an Administrator has
duties and liabilities relating thereto to the Trust or to the
Holders, such Administrator or Trustee shall not be liable to the
Trust or to any Holder for such Administrator's 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 the Administrators or Trustees otherwise existing
at law or in equity, are agreed by the Holders to replace such
other duties and liabilities of the Administrators or Trustees.
SECTION 3.7 Prohibition of Actions by the Trust and the
Trustees.
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. The Trust
shall not:
(a) invest any proceeds received by the Trust from
holding the Debentures, but shall distribute all such
proceeds to Holders pursuant to the terms of this
Declaration and of the Securities;
(b) acquire any assets other than as expressly
provided herein;
(c) possess Trust property for other than a Trust
purpose;
(d) make any loans or incur any indebtedness other
than loans represented by the Debentures;
(e) 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;
(f) issue any securities or other evidences of
beneficial ownership of, or beneficial interest in, the
Trust other than the Securities; or
(g) other than as provided in this Declaration, or
Annex I, (A) direct the time, method and place of
conducting any proceeding with respect to any remedy
available to the Debenture Trustee, or 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 on
behalf of the Holder to any amendment, modification or
termination of the Indenture or the Debentures where such
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consent shall be required unless the Trust shall have
received an opinion of a nationally recognized independent
tax counsel experienced in such matters to the effect that
such amendment, modification or termination 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 Trust and the Holders. 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 Administrators 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 control of the Property
Trustee on behalf of the Holders 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 or cause the Paying Agent
to make payments to the Holders 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 the rating on whose long-term
unsecured indebtedness is at least equal to the rating
assigned to the Capital Securities (or, if the Debentures
are rated, the Debentures,) 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
Securities to the extent the Debentures are prepaid or
mature; and
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(iii) upon written notice of distribution issued by
the Administrators 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 upon the occurrence of certain
events.
(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 this Declaration and
the Securities.
(e) Subject to Section 3.9(a), the Property Trustee
may 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 an Event of Default has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay the principal of or
premium, if any, or interest on the Debentures on the date such
principal, premium, if any, or interest is otherwise payable
after giving effect to any Extension Period (or in the case of
prepayment, on the prepayment date), then a Holder of Capital
Securities may institute directly against the Debenture Issuer a
proceeding for enforcement of payment on or after the respective
due date specified in the Debentures to such Holder of the
principal of or premium, if any, or interest on the Debentures
having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Capital Securities of such Holder (a
"Direct Action"). 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 Capital Securities to the extent
of any payment made by the Debenture Issuer to such Holder of
Capital Securities in such Direct Action. Except as provided in
the preceding sentences, the Holders of Capital Securities will
not be able to exercise directly any other remedy available to
the holders of the Debentures.
(f) No resignation or removal of the Property
Trustee shall be effective unless either:
(i) the Trust has been completely liquidated and the
proceeds of the liquidation distributed to the Holders
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 (a "Successor Property Trustee").
(g) The Property Trustee shall have the legal power
to exercise all of the rights, powers and privileges of a holder
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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 may, for the
benefit of Holders, enforce its rights as holder of the
Debentures subject to the rights of the Holders pursuant to this
Declaration and the terms of the Securities. 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, except as provided herein, 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.
(h) The Property Trustee shall be authorized to
undertake any actions set forth in ss. 317(a) of the Trust
Indenture Act.
(i) For such time as the Property Trustee is the
Paying Agent, the Property Trustee may authorize one or more
Persons to act as additional Paying Agents and 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 ss. 317(b) of the Trust Indenture
Act. Any such additional Paying Agent may be removed by the
Property Trustee at any time the Property Trustee remains as
Paying Agent and a successor Paying Agent or additional Paying
Agents may be (but are not required to be) appointed at any time
by the Property Trustee while the Property Trustee is so acting
as Paying Agent.
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 in
the Securities and no implied covenants or obligations 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) All payments made by the Property Trustee or a
Paying Agent in respect of the Securities shall be made only from
the revenue and proceeds from the Trust Property and only to the
extent that there shall be sufficient revenue or proceeds from
the Trust Property to enable the Property Trustee or a Paying
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Agent to make payments in accordance with the terms hereof. Each
Holder, by its acceptance of a Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the
extent legally available for distribution to it as herein
provided and that the Trustees and the Administrators are not
personally liable to it for any amount distributable in respect
of any Security or for any other liability in respect of any
Security. This Section 3.9(b) does not limit the liability of the
Trustees expressly set forth elsewhere in this Declaration or, in
the case of the Property Trustee, in the Trust Indenture Act.
(c) 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 in the Securities
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 in
the Securities, 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; provided, however, that 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;
(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;
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(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) 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;
(v) 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;
(vi) 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 Sponsor. 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
(vii) the Property Trustee shall not be responsible
for monitoring the compliance by the Administrators or the
Sponsor with their respective duties under this
Declaration, nor shall the Property Trustee be liable for
any default or misconduct of the Administrators or the
Sponsor.
SECTION 3.10 Certain Rights of the 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, appraisal, 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;
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(ii) any direction or act of the Sponsor or the
Administrators contemplated by this Declaration may 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 Sponsor or the Administrators;
(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 reliance thereon and in
accordance with such advice or opinion, such counsel may be
counsel to the Sponsor or any of its Affiliates, and may
include any of its 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 reasonable 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;
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(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,
approval, 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, 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;
(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
(A) may request instructions from the Holders which
instructions shall 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, (B) may refrain from enforcing such remedy or right
or taking such other action until such instructions are
received, and (C) 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, without negligence, and reasonably believed by
it to be authorized or within the discretion or rights or
powers conferred upon it by this Declaration.
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(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
Administrators 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 ss.3807 of the Business Trust Act
and taking such actions as are required to be taken by the
Delaware Trustee under the Business Trust Act.
SECTION 3.12 Execution of Documents.
Unless otherwise required by the Business Trust Act,
any Administrator is authorized to execute on behalf of the Trust
any documents that the Administrators have the power and
authority to execute pursuant to Section 3.6; provided that, any
Registration Statement referred to in Section 3.6(A)(i)(b)(i),
including any amendments thereto, shall be signed by all of the
Administrators.
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 Sponsor, 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, the Debentures or the
Securities.
SECTION 3.14 Duration of Trust.
The Trust, unless dissolved pursuant to the provisions
of Article VIII hereof, shall have existence up to June 6, 2028.
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SECTION 3.15 Mergers.
(a) The Trust may not merge or convert with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer
or lease its properties and assets substantially as an entirety
to any Person, except as described in Section 3.15(b) and (c) and
Section 3 of Annex I hereto.
(b) The Trust may, at the request of the Sponsor, and
without the consent of the Holders, the Delaware Trustee or the
Property Trustee, merge or convert with or into, consolidate,
amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets as an entirety or substantially as an
entirety to, 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
Securities (the "Successor Securities") so that the
Successor Securities rank the same as the Securities
rank with respect to Distributions and payments upon
liquidation, redemption and otherwise;
(ii) the Sponsor expressly appoints 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 Successor Securities to Capital 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 Capital
Securities are then listed or quoted, if any;
(iv) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease
does not cause the Capital Securities (including any
Successor Securities) or, if the Debentures are so rated,
the Debentures,to be downgraded by any nationally
recognized statistical rating organization;
(v) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and
privileges of the Holders (including the holders of any
Successor Securities) in any material respect (other than
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with respect to any dilution of such Holders' interests in
the Successor Entity);
(vi) such Successor Entity has a purpose
substantially identical to that of the Trust;
(vii) prior to such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or lease,
the Sponsor has received an opinion of an independent
counsel to the Trust experienced in such matters to the
effect that:
(A) such merger, conversion, consolidation,
amalgamation, replacement, conveyance, transfer or
lease does not adversely affect the rights,
preferences and privileges of the Holders (including
the holders of any Successor Securities) in any
material respect (other than with respect to any
dilution of the Holders' interest in the Successor
Entity);
(B) following such merger, conversion,
consolidation, amalgamation, replacement, conveyance,
transfer or lease, neither the Trust nor the Successor
Entity will be required to register as an Investment
Company; and
(C) following such merger, conversion,
consolidation, amalgamation, replacement, conveyance,
transfer, or lease, 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 Sponsor or any permitted successor or
assignee owns all of the common securities of such
Successor Entity and guarantees the obligations of such
Successor Entity under the Successor Securities at least to
the extent provided by the Capital Securities Guarantee and
the Common Securities Guarantee.
(c) Notwithstanding Section 3.15(b), the Trust shall
not, except with the consent of all Holders, consolidate,
amalgamate, merge or convert with or into, or be replaced by, or
convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to, any other entity or
permit any other entity to consolidate, amalgamate, merge or
convert with or into, or replace it if such consolidation,
amalgamation, merger, conversion, replacement, conveyance,
transfer or lease would cause the Trust or the Successor Entity
not to be classified as a grantor trust for United States federal
income tax purposes.
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ARTICLE IV
SPONSOR
SECTION 4.1 Sponsor's Purchase of Common Securities.
At the Closing Time, the Sponsor will purchase all of
the Common Securities then issued by the Trust, in an amount at
least equal to 3% of the capital of the Trust, at the same time
as the Series A Capital Securities are issued and sold.
SECTION 4.2 Responsibilities of the Sponsor.
In connection with the issue and sale of the Capital
Securities, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities (and any
actions taken by the Sponsor in furtherance of the following
prior to the date of this Declaration are hereby ratified and
confirmed in all respects):
(a) to prepare the Offering Memorandum and to prepare
for filing by the Trust with the Commission any Registration
Statement, including any amendments thereto as contemplated by
the Registration Rights Agreement;
(b) to determine the States in which to take
appropriate action to qualify or register for sale all or part of
the Capital 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 Sponsor deems necessary or advisable in order to comply with
the applicable laws of any such States;
(c) if deemed necessary or advisable by the Sponsor,
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 or quotation of the Capital
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 Capital Securities under Section 12(b) of the
Exchange Act, including any amendments thereto;
(e) to negotiate the terms of, and execute, the
Purchase Agreement and the Registration Rights Agreement
providing for the sale of the Capital Securities; and
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(f) notwithstanding anything to the contrary contained
herein, the Trust shall be authorized to issue and sell the
Capital Securities at an offering price per Capital Security to
be determined by the Sponsor in its sole and absolute discretion,
including, without limitation, at an offering price that is less
than the Liquidation Amount, which offering price shall be
specified in the Offering Memorandum, and the Common Securities
shall be issued and sold at an offering price per Common Security
that is equal to the offering price per Capital Security.
SECTION 4.3 Right to Proceed.
The Sponsor acknowledges the rights of the Holders of
Capital Securities, in the event that a failure of the Trust to
pay Distributions on the Capital Securities is attributable to
the failure of the Company to pay interest or principal on the
Debentures, to institute Direct Actions against the Debenture
Issuer for enforcement of its payment obligations on the
Debentures.
ARTICLE V
TRUSTEES
SECTION 5.1 Number of Trustees; Appointment of Co-Trustee.
The number of Trustees initially shall be two (2),
and:
(a) at any time before the issuance of any
Securities, the Sponsor 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 except as provided in Section 5.2(b), the
number of Trustees shall in no event be less than two (2);
provided further that (1) one Trustee shall be the Delaware
Trustee; and (2) 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.
Notwithstanding the above, unless an Event of Default shall have
occurred and be continuing, at any time or times, for the purpose
of meeting the legal requirements of the Trust Indenture Act or
of any jurisdiction in which any part of the Trust's property may
at the time be located, the Holders of a Majority in Liquidation
Amount of the Common Securities acting as a class at a meeting of
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the Holders of the Common Securities, and the Administrators
shall have power to appoint one or more persons either to act as
a co-trustee, jointly with the Property Trustee, of all or any
part of the Trust's property, or to act as separate trustee of
any such property, in either case with such powers as may be
provided in the instrument of appointment, and to vest in such
person or persons in such capacity any property, title, right or
power deemed necessary or desirable, subject to the provisions of
this Declaration. In case an Event of Default has occurred and is
continuing, the Property Trustee alone shall have power to make
any such appointment of a co-trustee.
SECTION 5.2 Delaware Trustee.
If required by the Business Trust Act, one Trustee
(the "Delaware Trustee") shall be:
(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 including
ss.3807 of the Business Trust Act, 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,
including ss.3807 of the Business Trust Act, then the Property
Trustee may also be the Delaware Trustee, in which case Section
3.11 shall have no application.
SECTION 5.3 Property Trustee; Eligibility.
(a) There shall at all times be one Trustee (the
"Property Trustee") which shall act as Property Trustee and which
shall:
(i) not be an Affiliate of the Sponsor; 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
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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 ss. 310(b) of the
Trust Indenture Act, the Property Trustee shall eliminate such
interest or resign, to the extent and in the manner provided by,
and subject to the provisions of the Trust Indenture Act or this
Declaration.
(d) The Capital Securities Guarantee shall be deemed
to be specifically described in this Declaration for purposes of
clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
(e) The initial Property Trustee shall be:
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee
Administration Department
SECTION 5.4 Certain Qualifications of Administrators and
Delaware Trustee Generally.
Each Administrator 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 Administrators.
The initial Administrators shall be:
Richard J. Heller
Barry G. Blenis
Freling H. Smith
(a) Except as expressly set forth in this Declaration,
any power of the Administrators may be exercised by, or with the
consent of, any one such Administrator.
(b) An Administrator 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
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signing any documents which the Administrators have power and
authority to cause the Trust to execute pursuant to Section 3.6.
(c) In no event will the Holders of the Capital
Securities have the right to vote to appoint, remove or replace
the Administrators, which voting rights are vested exclusively in
the Sponsor as the Holder of the Common Securities.
SECTION 5.6 Delaware Trustee.
The initial Delaware Trustee shall be:
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, DE 19801
SECTION 5.7 Appointment, Removal and Resignation of
Trustees.
(a) Subject to Section 5.7(b) of this Declaration and
to Section 6(b) of Annex I hereto, Trustees may be appointed or
removed without cause at any time:
(i) until the issuance of any Securities, by written
instrument executed by the Sponsor;
(ii) unless an Event of Default shall have occurred
and be continuing 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; and
(iii) if an Event of Default shall have occurred and
be continuing after the issuance of the Securities, with
respect to the Property Trustee or the Delaware Trustee, by
vote of Holders of a Majority in Liquidation Amount of the
Capital Securities voting as a class at a meeting of
Holders of the Capital 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 Administrators and the
Sponsor; 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
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appointment by written instrument executed by such
Successor Delaware Trustee and delivered to the
Administrators and the Sponsor.
(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
Sponsor 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 Sponsor and the
resigning Property Trustee; or
(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof
distributed to the Holders; 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 Sponsor
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, appoint a Successor Property
Trustee or Successor Delaware Trustee, as the case may be.
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(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 of 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 Administrators or, if there are more than
two, a majority of the Administrators 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 dissolve,
terminate or annul the Trust. Whenever a vacancy in the number of
Administrators shall occur, until such vacancy is filled by the
appointment of an Administrator in accordance with Section 5.7,
the Administrators in office, regardless of their number, shall
have all the powers granted to the Administrators and shall
discharge all the duties imposed upon the Administrators by this
Declaration.
SECTION 5.10 Meetings.
If there is more than one Administrator, meetings of
the Administrators shall be held from time to time upon the call
of any Administrator. Regular meetings of the Administrators may
be held at a time and place fixed by resolution of the
Administrators. Notice of any in-person meetings of the
Administrators 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 such meeting. Notice of
any telephonic meetings of the Administrators 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
an Administrator at a meeting shall constitute a waiver of notice
of such meeting except where an Administrator attends a meeting
for the express purpose of objecting to the transaction of any
activity on the ground that the meeting has not been lawfully
called or convened. Unless provided otherwise in this
Declaration, any action of the Administrators may be taken at a
meeting by vote of a majority of the Administrators present
(whether in person or by telephone) and eligible to vote with
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respect to such matter, provided that a Quorum is present, or
without a meeting by the unanimous written consent of the
Administrators. In the event there is only one Administrator, any
and all action of such Administrator shall be evidenced by a
written consent of such Administrator.
SECTION 5.11 Delegation of Power.
(a) Any Administrator 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 Administrators 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
Administrators or otherwise as the Administrators 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.
Section 5.12 Merger, Conversion, Consolidation or Succession
to Business.
Any Person into which the Property Trustee or the Delaware
Trustee, as the case may be, may be merged or converted or with
which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Property Trustee
or the Delaware Trustee, as the case may be, shall be a party, or
any Person 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 Person 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.
Each Holder shall receive Distributions in accordance
with the terms of such Holder's Securities. 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
with respect to the Debentures held by the Property Trustee or
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Additional Distributions (as defined in the Registration Rights
Agreement) or any other payments pursuant to the Registration
Rights Agreement with respect to 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 available for that purpose, to make a
distribution (a "Distribution") of the Payment Amount to Holders
in accordance with the respective terms of the Securities held by
them.
ARTICLE VII
ISSUANCE OF SECURITIES
SECTION 7.1 General Provisions Regarding Securities.
(a) The Administrators shall on behalf of the Trust
issue one class of capital securities representing undivided
beneficial interests in the assets of the Trust having such terms
as are set forth in Annex I (the "Series A Capital 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"), which is
incorporated in and expressly made a part of this Declaration.
The Administrators shall on behalf of the Trust issue one class
of capital securities representing undivided beneficial interests
in the assets of the Trust having such terms as set forth in
Annex I (the "Series B Capital Securities") in exchange for
Series A Capital Securities accepted for exchange in the Exchange
Offer, which Series B Capital Securities shall not bear the
legends required by Section 9.2(i) unless the Holder of such
Series A Capital Securities is either (A) a broker-dealer who
purchased such Series A Capital Securities directly from the
Trust for resale pursuant to Rule 144A or any other available
exemption under the Securities Act, (B) a Person participating in
the distribution of the Series A Capital Securities or (C) a
Person who is an affiliate (as defined in Rule 144A) of the
Trust. The Trust shall issue no securities or other interests in
the assets of the Trust other than the Securities.
(b) The Capital Securities rank pari passu and payment
thereon shall be made Pro Rata with the Common Securities except
that, where an Event of Default has occurred and is continuing,
the rights of Holders of the Common Securities to payment in
respect of Distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights to
payment of the Holders of the Capital Securities.
(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.
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(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 notwithstanding
that the Securities shall have been issued and sold at an
offering price that is less than the Liquidation Amount thereof.
(e) Every Person, by virtue of having become a Holder
or a Capital 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 Execution and Authentication.
(a) The Securities shall be signed on behalf of the
Trust by an Administrator by manual or facsimile signature. In
case any Administrator of the Trust who shall have signed any of
the Securities shall cease to be such Administrator before the
Securities so signed shall be delivered by the Trust, such
Securities nevertheless may be delivered as though the person who
signed such Securities had not ceased to be such Administrator;
and any Securities may be signed on behalf of the Trust by such
persons who, at the actual date of execution of such Security,
shall be the Administrators of the Trust, although at the date of
the execution and delivery of this Declaration any such person
was not such an Administrator.
(b) One Administrator shall sign the Securities for
the Trust by manual or facsimile signature.
A Common Security shall be valid upon execution by an
Administrator without any act of the Property Trustee. A Capital
Security shall not be valid until authenticated by the manual
signature of an authorized officer of the Property Trustee. The
signature shall be conclusive evidence that the Capital Security
has been authenticated under this Declaration.
Upon a written order of the Trust signed by one
Administrator, the Property Trustee shall authenticate the
Capital Securities for original issue. The aggregate number of
Capital Securities outstanding at any time shall not exceed the
number set forth in the Terms in Annex I hereto except as
provided in Section 7.6.
The Property Trustee may appoint an authenticating
agent acceptable to the Trust to authenticate Capital Securities.
An authenticating agent may authenticate Capital Securities
whenever the Property Trustee may do so. Each reference in this
Declaration to authentication by the Property Trustee includes
authentication by such agent. An authenticating agent has the
same rights as the Property Trustee hereunder with respect to the
Sponsor or an Affiliate.
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SECTION 7.3 Form and Dating.
The Capital Securities and the Property Trustee's
certificate of authentication shall be substantially in the form
of Exhibit A-1 and the Common Securities shall be substantially
in the form of Exhibit A-2, each of which is hereby incorporated
in and expressly made a part of this Declaration. Certificates
representing the Securities may be printed, lithographed or
engraved or may be produced in any other manner as is reasonably
acceptable to the Administrators, as evidenced by their execution
thereof. The Securities may have letters, CUSIP or other numbers,
notations or other marks of identification or designation and
such legends or endorsements required by law, stock exchange
rule, agreements to which the Trust is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a
form acceptable to the Trust). The Trust at the direction of the
Sponsor shall furnish any such legend not contained in Exhibit
A-1 to the Property Trustee in writing. Each Capital Security
shall be dated the date of its authentication. The terms and
provisions of the Securities set forth in Annex I and the forms
of Securities set forth in Exhibits A-1 and A-2 are part of the
terms of this Declaration and to the extent applicable, the
Property Trustee and the Sponsor, by their execution and delivery
of this Declaration, expressly agree to such terms and provisions
and to be bound thereby.
(a) Restricted Global Securities. Securities offered
and sold to QIBs in reliance on Rule 144A, as provided in the
Purchase Agreement, shall be issued in the form of one or more,
permanent global Securities in definitive, fully registered form
without Distribution coupons with the global legend and
Restricted Securities Legend set forth in Exhibit A-1 hereto (a
"Restricted Global Capital Security"), which shall be deposited
on behalf of the purchasers of the Capital Securities represented
thereby with the Property Trustee, at its New York office, as
custodian for the Clearing Agency, and registered in the name of
the Clearing Agency or a nominee of the Clearing Agency, duly
executed by an Administrator on behalf of the Trust and
authenticated by the Property Trustee as hereinafter provided.
The number of Capital Securities represented by a Global Capital
Security may from time to time be increased or decreased by
adjustments made on the records of the Property Trustee and the
Clearing Agency or its nominee as hereinafter provided.
(b) Book-Entry Provisions. This Section 7.3(b) shall
apply only to the Restricted Global Capital Security and such
other Capital Securities in global form as may be authorized by
the Trust to be deposited with or on behalf of the Clearing
Agency (collectively, including Restricted Global Capital
Securities, "Global Capital Securities").
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An Administrator shall execute on behalf of the Trust
and the Property Trustee shall, in accordance with Section 7.2,
authenticate and make available for delivery initially one or
more Restricted Global Capital Securities that (i) shall be
registered in the name of Cede & Co. or other nominee of such
Clearing Agency and (ii) shall be delivered by the Trustee to
such Clearing Agency or pursuant to such Clearing Agency's
written instructions or held by the Property Trustee as custodian
for the Clearing Agency.
Members of, or participants in, the Clearing Agency
("Participants") shall have no rights under this Declaration with
respect to any Global Capital Security held on their behalf by
the Clearing Agency or by the Property Trustee as the custodian
of the Clearing Agency or under such Global Capital Security, and
the Clearing Agency may be treated by the Trust, the Property
Trustee and any agent of the Trust or the Property Trustee as the
absolute owner of such Global Capital Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Trust, the Property Trustee or any agent of the Trust
or the Property Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Clearing Agency or impair, as between the Clearing Agency and its
Participants, the operation of customary practices of such
Clearing Agency governing the exercise of the rights of a holder
of a beneficial interest in any Global Capital Security.
(c) Definitive Capital Securities. Except as provided
in Section 7.9, owners of beneficial interests in a Global
Capital Security will not be entitled to receive physical
delivery of certificated Capital Securities ("Definitive Capital
Securities"). Purchasers of Capital Securities with respect to
which a Restricted Securities Legend is required ("Restricted
Capital Securities") who are institutional "accredited investors"
(as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) but are not QIBs will receive Capital Securities
in the form of individual certificates in definitive, fully
registered form without distribution coupons and with the
Restricted Securities Legend set forth in Exhibit A-1 hereto
("Restricted Definitive Capital Securities"); provided, however,
that upon transfer of such Restricted Definitive Capital
Securities to a QIB, such Restricted Definitive Capital
Securities will, unless the Global Capital Security has
previously been exchanged, be exchanged for an interest in a
Global Capital Security pursuant to the provisions of Section
9.2. Restricted Definitive Capital Securities will bear the
Restricted Securities Legend set forth on Exhibit A-1 unless
removed in accordance with this Section 9.2.
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SECTION 7.4 Registrar, Paying Agent and Exchange Agent.
The Trust shall maintain in the Borough of Manhattan,
The City of New York, (i) an office or agency where Capital
Securities may be presented for registration of transfer
("Registrar"), (ii) an office or agency where Capital Securities
may be presented for payment ("Paying Agent") and (iii) an office
or agency where Securities may be presented for exchange
("Exchange Agent"). The Registrar shall keep a register of the
Capital Securities and of their transfer. Subject to Section
3.8(i) the Trust may appoint the Registrar, the Paying Agent and
the Exchange Agent and may appoint one or more co-registrars, one
or more additional paying agents and one or more additional
exchange agents in such other locations as it shall determine.
The term "Registrar" includes any additional registrar. "Paying
Agent" includes any additional paying agent and the term
"Exchange Agent" includes any additional exchange agent. Subject
to Section 3.8(i) the Trust may change any Paying Agent,
Registrar, co-registrar or Exchange Agent without prior notice to
any Holder. The Paying Agent shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Property
Trustee. 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 Registrar,
Paying Agent or Exchange Agent, the Property Trustee shall act as
such. The Trust or any of its Affiliates may act as Paying Agent,
Registrar, or Exchange Agent. The Trust shall act as Paying
Agent, Registrar, co-registrar, and Exchange Agent for the Common
Securities.
The Trust initially appoints the Property Trustee as
Registrar, Paying Agent and Exchange Agent for the Capital
Securities.
SECTION 7.5 Paying Agent to Hold Money in Trust.
The Trust shall require each Paying Agent other than
the Property Trustee to agree in writing that the Paying Agent
will hold in trust for the benefit of Holders or the Property
Trustee all money held by the Paying Agent for the payment of
Liquidation Amounts or Distributions, and will notify the
Property Trustee if there are insufficient funds for such
purpose. While any such insufficiency continues, the Property
Trustee may require a Paying Agent to pay all money held by it to
the Property Trustee. The Trust at any time may require a Paying
Agent to pay all money held by it to the Property Trustee and to
account for any money disbursed by it. Upon payment over to the
Property Trustee, the Paying Agent (if other than the Trust or an
Affiliate of the Trust) shall have no further liability for the
money. If the Trust or the Sponsor or an Affiliate of the Trust
or the Sponsor acts as Paying Agent, it shall segregate and hold
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in a separate trust fund for the benefit of the Holders all money
held by it as Paying Agent.
SECTION 7.6 Replacement Securities.
If a Holder claims that a Security owned by it has
been lost, destroyed or wrongfully taken or if such Security is
mutilated and is surrendered to the Trust or in the case of the
Capital Securities to the Property Trustee, the Trust shall issue
and the Property Trustee shall authenticate a replacement
Security if the Property Trustee's and the Trust's requirements,
as the case may be, are met. An indemnity bond must be provided
by the Holder which, in the judgment of the Property Trustee, is
sufficient to protect the Trustees, the Sponsor or any
authenticating agent from any loss which any of them may suffer
if a Security is replaced. The Trust may charge such Holder for
its expenses in replacing a Security.
Every replacement Security is an additional beneficial
interest in the Trust.
SECTION 7.7 Outstanding Capital Securities.
The Capital Securities outstanding at any time are all
the Capital Securities authenticated by the Property Trustee
except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section as not
outstanding.
If a Capital Security is replaced or purchased
pursuant to Section 7.6 hereof, it ceases to be outstanding
unless the Property Trustee receives proof satisfactory to it
that the replaced, paid or purchased Capital Security is held by
a bona fide purchaser.
If Capital Securities are considered paid in
accordance with the terms of this Declaration, they cease to be
outstanding and Distributions on them shall cease to accumulate.
A Capital Security does not cease to be outstanding
because one of the Trust, the Sponsor or an Affiliate of the
Sponsor holds the Security.
SECTION 7.8 Capital Securities in Treasury.
In determining whether the Holders of the required
amount of Securities have concurred in any direction, waiver or
consent, Capital Securities owned by the Trust, the Sponsor or an
Affiliate of the Sponsor, as the case may be, shall be
disregarded and deemed not to be outstanding, except that for the
purposes of determining whether the Property Trustee shall be
fully protected in relying on any such direction, waiver or
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consent, only Securities which the Property Trustee actually
knows are so owned shall be so disregarded.
SECTION 7.9 Temporary Securities.
(a) Until definitive Securities are ready for
delivery, the Administrators may prepare and, in the case of the
Capital Securities, the Property Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that
the Administrators consider appropriate for temporary Securities.
Without unreasonable delay, the Administrators shall prepare and,
in the case of the Capital Securities, the Property Trustee shall
authenticate definitive Securities in exchange for temporary
Securities.
(b) A Global Capital Security deposited with the
Clearing Agency or with the Property Trustee or the Registrar as
custodian for the Clearing Agency pursuant to Section 7.3 shall
be transferred to the beneficial owners thereof in the form of
certificated Capital Securities only if such transfer complies
with Section 9.2 and (i) the Clearing Agency notifies the Company
that it is unwilling or unable to continue as Clearing Agency for
such Global Capital Security or if at any time such Clearing
Agency ceases to be a "clearing agency" registered under the
Exchange Act and a clearing agency is not appointed by the
Sponsor within 90 days of such notice or within 90 days after the
Sponsor becomes aware of such cessation, (ii) a Default or an
Event of Default has occurred and is continuing or (iii) the
Trust at its sole discretion elects to cause the issuance of
certificated Capital Securities.
(c) Any Global Capital Security that is transferable
to the beneficial owners thereof in the form of certificated
Capital Securities pursuant to this Section 7.9 shall be
surrendered by the Clearing Agency to the Property Trustee
located in the Borough of Manhattan, The City of New York, to be
so transferred, in whole or from time to time in part, without
charge, and the Property Trustee shall authenticate and make
available for delivery, upon such transfer of each portion of
such Global Capital Security, an equal aggregate Liquidation
Amount of Securities of authorized denominations in the form of
certificated Capital Securities. Any portion of a Global Capital
Security transferred pursuant to this Section shall be registered
in such names as the Clearing Agency shall direct. Any Capital
Security in the form of certificated Capital Securities delivered
in exchange for an interest in the Restricted Global Capital
Security shall, except as otherwise provided by Sections 7.3 and
9.1, bear the Restricted Securities Legend set forth in Exhibit
A-1 hereto.
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(d) Subject to the provisions of Section 7.9(c), the
Holder of a Global Capital Security may grant proxies and
otherwise authorize any person, including Participants and
persons that may hold interests through Participants, to take any
action which such Holder is entitled to take under this
Declaration or the Securities.
(e) In the event of the occurrence of any of the
events specified in Section 7.9(b), the Trust will promptly make
available to the Property Trustee or the Registrar a reasonable
supply of certificated Capital Securities in fully registered
form without distribution coupons.
SECTION 7.10 Cancellation.
The Administrators at any time may deliver Capital
Securities to the Property Trustee for cancellation. The
Registrar, Paying Agent and Exchange Agent shall forward to the
Property Trustee any Capital Securities surrendered to them for
registration of transfer, redemption, exchange or payment. The
Property Trustee shall promptly cancel all Capital Securities,
surrendered for registration of transfer, redemption, exchange,
payment, replacement or cancellation and shall dispose of
cancelled Capital Securities as the Administrators direct,
provided that the Property Trustee shall not be obligated to
destroy Capital Securities. The Administrators may not issue new
Capital Securities to replace Capital Securities that it has paid
or that have been delivered to the Property Trustee for
cancellation or that any Holder has exchanged.
SECTION 7.11 CUSIP Numbers.
The Trust in issuing the Capital Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the
Property Trustee shall use "CUSIP" numbers in notices of
redemption as a convenience to Holders of Capital Securities;
provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on
the Capital Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other
identification numbers printed on the Capital Securities, and any
such redemption shall not be affected by any defect in or
omission of such numbers. The Sponsor will promptly notify the
Property Trustee of any change in the CUSIP numbers.
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ARTICLE VIII
DISSOLUTION OF TRUST
SECTION 8.1 Dissolution of Trust.
(a) The Trust shall automatically be dissolved and its
affairs wound up upon the earliest to occur of the following
events:
(i) upon the bankruptcy of the Sponsor;
(ii) (other than in connection with a merger,
consolidation or similar transaction not prohibited by the
Indenture, the Declaration or the Capital Securities
Guarantee) upon the filing of a certificate of dissolution
or liquidation or its equivalent with respect to the
Sponsor; or the revocation of the Sponsor's charter and the
expiration of 90 days after the date of revocation without
a reinstatement thereof;
(iii) following the distribution of a Like Amount (as
defined in Annex I) of the Debentures to the Holders,
provided that, the Property Trustee has received written
notice from the Sponsor directing the Property Trustee to
dissolve the Trust (which direction is optional, and except
as otherwise expressly provided below, within the
discretion of the Sponsor) and provided, further, that such
direction and such distribution is conditioned on (i) the
receipt by the Sponsor or the Trust, as the case requires,
of any required regulatory approval, and (ii) the
Administrators' receipt of an opinion of an independent tax
counsel experienced in such matters, which opinion may rely
on published rulings of the Internal Revenue Service, to
the effect that the Holders will not recognize any gain or
loss for United States federal income tax purposes as a
result of the dissolution of the Trust and the distribution
of Debentures;
(iv) upon the entry of a decree of judicial
dissolution of the Trust by a court of competent
jurisdiction;
(v) 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; or
(vi) the expiration of the term of the Trust provided
in Section 3.14.
(b) As soon as is practicable after the occurrence
of an event referred to in Section 8.1(a) and the completion of
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the winding up of the Trust and satisfaction of all liabilities
of the Trust, the Administrators shall file a 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, Capital Securities may
only be transferred, in whole or in part, in accordance with the
terms and conditions set forth in this Declaration. Any transfer
or purported transfer of any Security not made in accordance with
this Declaration shall be null and void.
(c) The Sponsor may not transfer the Common
Securities, except to a successor to the Sponsor as obligor under
the Debentures or by operation of law.
(d) The Administrators and the Registrar shall provide
for the registration of Capital Securities and of the transfer of
Capital Securities, which will be effected without charge but
only upon payment (with such indemnity as the Administrators and
the Registrar may require) in respect of any tax or other
governmental charges that may be imposed in relation to it. Upon
surrender for registration of transfer of any Capital Securities,
the Administrators and the Registrar shall cause one or more new
Capital Securities to be issued in the name of the designated
transferee or transferees. Every Capital Security surrendered for
registration of transfer shall be accompanied by a written
instrument of transfer in form satisfactory to the Administrators
and the Registrar duly executed by the Holder or such Holder's
attorney duly authorized in writing. Each Capital Security
surrendered for registration of transfer shall be canceled by the
Property Trustee in accordance with Section 7.10. A transferee of
a Capital Security shall be entitled to the rights and subject to
the obligations of a Holder hereunder upon the receipt by such
transferee of a Security. By acceptance of a Security, each
transferee shall be deemed to have agreed to be bound by this
Declaration.
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SECTION 9.2 Transfer Procedures and Restrictions
(a) General. Except as otherwise provided in Section
9.2(b), if Capital Securities are issued upon the transfer,
exchange or replacement of Restricted Capital Securities or if a
request is made to remove the Restricted Securities Legend
thereon, the Capital Securities so issued shall bear the
Restricted Securities Legend, or the Restricted Securities Legend
shall not be removed, as the case may be, unless there is
delivered to the Trust and the Property Trustee such satisfactory
evidence, which shall include an Opinion of Counsel licensed to
practice law in the State of New York, as may be reasonably
required by the Sponsor, that neither the legend nor the
restrictions on transfer set forth therein are required to ensure
that transfers thereof are made pursuant to an exemption from the
registration requirements of the Securities Act. Upon provision
of such satisfactory evidence, the Property Trustee, at the
written direction of the Trust, shall authenticate and deliver
Capital Securities that do not bear the legend.
(b) Transfers After Effectiveness of a Registration
Statement. After the effectiveness of a Registration Statement
with respect to any Capital Securities, all requirements
pertaining to Restricted Securities Legends on such Capital
Securities will cease to apply (except as provided in Section
7.1(a)), and beneficial interests in a Capital Security in global
form without such legends will be available to transferees of
such Capital Securities, upon exchange of the transferring
holder's Restricted Definitive Capital Security or directions to
transfer such Holder's beneficial interest in the Global Capital
Security. No such transfer or exchange of a Restricted Definitive
Capital Security or of an interest in the Global Capital Security
shall be effective unless the transferor delivers to the Trust a
certificate in a form substantially similar to that attached
hereto as the "Form of Assignment" in Exhibit A-1. Except as
otherwise provided in Section 9.2(m), after the effectiveness of
a Registration Statement, the Trust shall issue and the Property
Trustee, upon a written order of the Trust signed by one
Administrator, shall authenticate a Capital Security in global
form without the Restricted Securities Legend (the "Unrestricted
Global Capital Security") for deposit with the Clearing Agency to
evidence transfers of beneficial interests from the (i) Global
Capital Security and (ii) Restricted Definitive Capital
Securities.
(c) Transfer and Exchange of Definitive Capital
Securities. When Definitive Capital Securities are presented to
the Registrar or co-Registrar:
(x) to register the transfer of such Definitive
Capital Securities; or
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(y) to exchange such Definitive Capital Securities for
an equal number of Definitive Capital Securities,
the Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Definitive
Capital Securities surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to
the Administrators and the Registrar or co-registrar, duly
executed by the Holder thereof or his attorney duly
authorized in writing; and
(ii) in the case of Definitive Capital Securities that
are Restricted Definitive Capital Securities:
(A) if such Restricted Definitive Capital
Securities are being delivered to the Registrar by a
Holder for registration in the name of such Holder,
without transfer, a certification from such Holder to
that effect; or
(B) if such Restricted Definitive Capital
Securities are being transferred: (i) a certification
from the transferor in a form substantially similar to
that attached hereto as the "Form of Assignment" in
Exhibit A-1, and (ii) if the Trust so requests,
evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the
Restricted Securities Legend.
(C) if such Restricted Definitive Capital
Securities are transferred to QIBs in accordance with
Rule 144A under the Securities Act, the transferee
QIBs must take delivery of their interests in the
Capital Securities in the form of a beneficial
interest in the Rule 144A Global Capital Security in
accordance with Section 9.2(d); or
(D) if such Restricted Definitive Capital
Securities are being transferred to a Person who is an
institutional accredited investor, but is not a QIB,
upon the delivery of a certificate by the transferee
institutional accredited investor substantially in the
form of Annex A to the Offering Memorandum and such
other opinion, certification and/or other information
as may be reasonably required by the Administrators or
the Sponsor, the Property Trustee shall cancel or
cause to be canceled such Restricted Definitive
Capital Securities being transferred and concurrently
therewith, the Administrators shall issue and the
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Property Trustee shall authenticate, upon written
order of any Administrator, an appropriate number of
Restricted Definitive Capital Securities.
(d) Restrictions on Transfer of a Definitive Capital
Security for a Beneficial Interest in a Global Capital Security.
A Definitive Capital Security may not be exchanged for a
beneficial interest in a Global Capital Security except upon
satisfaction of the requirements set forth below. Upon receipt by
the Property Trustee of a Definitive Capital Security, duly
endorsed or accompanied by appropriate instruments of transfer,
in form satisfactory to the Registrar and the Administrators,
together with:
(i) if such Definitive Capital Security is a
Restricted Capital Security, certification in a form
substantially similar to that attached hereto as the "Form
of Assignment" in Exhibit A-1; and
(ii) whether or not such Definitive Capital Security
is a Restricted Capital Security, written instructions
directing the Property Trustee to make, or to direct the
Clearing Agency to make, an adjustment on its books and
records with respect to the appropriate Global Capital
Security to reflect an increase in the number of the
Capital Securities represented by such Global Capital
Security,
then the Property Trustee shall cancel such Definitive Capital
Security and cause, or direct the Clearing Agency to cause, the
aggregate number of Capital Securities represented by the
appropriate Global Capital Security to be increased accordingly.
If no Global Capital Securities are then outstanding, the Trust
shall issue and the Property Trustee shall authenticate, upon
written order of any Administrator, an appropriate number of
Capital Securities in global form.
(e) Transfer and Exchange of Global Capital
Securities. Subject to Section 9.02(f), the transfer and exchange
of Global Capital Securities or beneficial interests therein
shall be effected through the Clearing Agency, in accordance with
this Declaration (including applicable restrictions on transfer
set forth herein, if any) and the procedures of the Clearing
Agency therefor.
(f) Transfer of a Beneficial Interest in a Global
Capital Security for a Definitive Capital Security.
(i) Any Person having a beneficial interest in a
Global Capital Security may upon request, but only upon 20
days prior notice to the Property Trustee, and if
accompanied by the information specified below, exchange
such beneficial interest for a Definitive Capital Security
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representing the same number of Capital Securities. Upon
receipt by the Property Trustee from the Clearing Agency or
its nominee on behalf of any Person having a beneficial
interest in a Global Capital Security of written
instructions or such other form of instructions as is
customary for the Clearing Agency or the Person designated
by the Clearing Agency as having such a beneficial interest
in a Capital Security and a certification from the
transferor (in a form substantially similar to that
attached hereto as the "Form of Assignment" in Exhibit
A-1), which may be submitted by facsimile, then the
Property Trustee will cause the aggregate number of Capital
Securities represented by Global Capital Securities to be
reduced on its books and records and, following such
reduction, the Trust will execute and the Property Trustee
will authenticate and make available for delivery to the
transferee a Definitive Capital Security.
(ii) Definitive Capital Securities issued in exchange
for a beneficial interest in a Global Capital Security
pursuant to this Section 9.2(f) shall be registered in such
names and in such authorized denominations as the Clearing
Agency, pursuant to instructions from its Participants or
indirect participants or otherwise, shall instruct the
Property Trustee in writing. The Property Trustee shall
deliver such Capital Securities to the persons in whose
names such Capital Securities are so registered in
accordance with such instructions of the Clearing Agency.
(g) Restrictions on Transfer and Exchange of Global
Capital Securities. Notwithstanding any other provisions of this
Declaration (other than the provisions set forth in subsection
(h) of this Section 9.2), a Global Capital Security may not be
transferred as a whole except by the Clearing Agency to a nominee
of the Clearing Agency or another nominee of the Clearing Agency
or by the Clearing Agency or any such nominee to a successor
Clearing Agency or a nominee of such successor Clearing Agency.
(h) Authentication of Definitive Capital Securities.
If at any time:
(i) there occurs a Default or an Event of Default
which is continuing, or
(ii) the Trust, in its sole discretion, notifies the
Property Trustee in writing that it elects to cause the
issuance of Definitive Capital Securities under this
Declaration,
then the Trust will execute, and the Property Trustee, upon
receipt of a written order of the Trust signed by one
Administrator requesting the authentication and delivery of
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Definitive Capital Securities to the Persons designated by the
Trust, will authenticate and make available for delivery
Definitive Capital Securities, equal in number to the number of
Capital Securities represented by the Global Capital Securities,
in exchange for such Global Capital Securities.
(i) Legend.
(i) Except as permitted by the following paragraph
(ii), each Capital Security certificate evidencing the
Global Capital Securities and the Restricted Definitive
Capital Securities (and all Capital Securities issued in
exchange therefor or substitution thereof) shall bear a
legend (the "Restricted Securities Legend") in
substantially the following form:
THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT") OR ANY STATE SECURITIES LAWS OR ANY
OTHER APPLICABLE SECURITIES LAW. NEITHER THIS CAPITAL
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF
SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER
THIS CAPITAL SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS
AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF
AND THE LAST DATE ON WHICH ALBANK FINANCIAL
CORPORATION (THE "COMPANY") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS CAPITAL SECURITY (OR ANY
PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A) TO THE
CORPORATION, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) SO LONG AS THIS CAPITAL SECURITY IS ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES
ACT, TO A PERSON IT REASONABLY BELIEVES IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A) THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES
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WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1),
(2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THIS CAPITAL SECURITY FOR ITS OWN
ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES
ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF THE TRUST AND
THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
(i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM
AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE
TRANSFEROR DELIVER TO THE TRUST A LETTER FROM THE
TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE
OFFERING MEMORANDUM DATED JUNE 4, 1997 RELATING TO
THIS CAPITAL SECURITY. SUCH HOLDER FURTHER AGREES THAT
IT WILL DELIVER TO EACH PERSON TO WHOM THIS CAPITAL
SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT
EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN SUBJECT
TO THE EMPLOYMENT RETIREMENT INCOME SECURITY ACT OF
1974, AS AMENDED ("ERISA") OR (ii) THE ACQUISITION AND
HOLDING OF THIS CAPITAL SECURITY BY IT IS NOT
PROHIBITED BY EITHER SECTION 406 OF ERISA OR SECTION
4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR IS EXEMPT FROM ANY SUCH PROHIBITION.
(ii) Upon any sale or transfer of a Restricted Capital
Security (including any Restricted Capital Security
represented by a Global Capital Security) pursuant to an
effective registration statement under the Securities Act
or pursuant to Rule 144 under the Securities Act after such
registration statement ceases to be effective:
(A) in the case of any Restricted Capital
Security that is a Definitive Capital Security, the
Registrar shall permit the Holder thereof to exchange
such Restricted Capital Security for a Definitive
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Capital Security that does not bear the Restricted
Securities Legend and rescind any restriction on the
transfer of such Restricted Capital Security; and
(B) in the case of any Restricted Capital
Security that is represented by a Global Capital
Security, the Registrar shall permit the Holder of
such Global Capital Security to exchange such Global
Capital Security for another Global Capital Security
that does not bear the Restricted Securities Legend.
(j) Cancellation or Adjustment of Global Capital
Security. Notwithstanding any other provisions hereof, at such
time as all beneficial interests in a Global Capital Security
have either been exchanged for Definitive Capital Securities to
the extent permitted by this Declaration or redeemed, repurchased
or canceled in accordance with the terms of this Declaration,
such Global Capital Security shall be returned to the Clearing
Agency for cancellation or retained and canceled by the Property
Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Capital Security is exchanged for
Definitive Capital Securities, Capital Securities represented by
such Global Capital Security shall be reduced and an adjustment
shall be made on the books and records of the Property Trustee
(if it is then the custodian for such Global Capital Security)
with respect to such Global Capital Security, by the Property
Trustee, to reflect such reduction.
(k) Obligations with Respect to Transfers and
Exchanges of Capital Securities.
(i) To permit registrations of transfers and
exchanges, the Trust shall execute and the Property Trustee
shall authenticate Definitive Capital Securities and Global
Capital Securities at the Registrar's or co-Registrar's
request in accordance with the terms of this Declaration.
(ii) Registrations of transfers or exchanges will be
effected without charge, but only upon payment (with such
indemnity as the Trust or the Sponsor may require) in
respect of any tax or other governmental charge that may be
imposed in relation to it.
(iii) The Registrar or co-Registrar shall not be
required to register the transfer of or exchange (a)
Capital Securities during a period beginning at the opening
of business 15 days before the day of mailing of a notice
of redemption or any notice of selection of Capital
Securities for redemption and ending at the close of
business on the day of such mailing; or (b) any Capital
Security so selected for redemption in whole or in part,
except the unredeemed portion of any Capital Security being
redeemed in part.
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(iv) Prior to the due presentation for registrations
of transfer of any Capital Security, the Trust, the
Property Trustee, the Paying Agent, the Registrar or any
co-Registrar may deem and treat the person in whose name a
Capital Security is registered as the absolute owner of
such Capital Security for the purpose of receiving
Distributions on such Capital Security (subject to Section
2(c) of Annex I) and for all other purposes whatsoever, and
none of the Trust, the Property Trustee, the Paying Agent,
the Registrar or any co-Registrar shall be affected by
notice to the contrary.
(v) All Capital Securities issued upon any transfer or
exchange pursuant to the terms of this Declaration shall
evidence the same security and shall be entitled to the
same benefits under this Declaration as the Capital
Securities surrendered upon such transfer or exchange.
(l) No Obligation of the Property Trustee.
(i) The Property Trustee shall have no responsibility
or obligation to any beneficial owner of a Global Capital
Security, a Participant in the Clearing Agency or other
Person with respect to the accuracy of the records of the
Clearing Agency or its nominee or of any Participant
thereof, with respect to any ownership interest in the
Capital Securities or with respect to the delivery to any
Participant, beneficial owner or other Person (other than
the Clearing Agency) of any notice (including any notice of
redemption) or the payment of any amount, under or with
respect to such Capital Securities. All notices and
communications to be given to the Holders and all payments
to be made to Holders under the Capital Securities shall be
given or made only to or upon the order of the registered
Holders (which shall be the Clearing Agency or its nominee
in the case of a Global Capital Security). The rights of
beneficial owners in any Global Capital Security shall be
exercised only through the Clearing Agency subject to the
applicable rules and procedures of the Clearing Agency. The
Property Trustee may conclusively rely and shall be fully
protected in relying upon information furnished by the
Clearing Agency or any agent thereof with respect to its
Participants and any beneficial owners.
(ii) The Property Trustee and Registrar shall have no
obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under
this Declaration or under applicable law with respect to
any transfer of any interest in any Capital Security
(including any transfers between or among Clearing Agency
Participants or beneficial owners in any Global Capital
Security) other than to require delivery of such
certificates and other documentation or evidence as are
expressly required by, and
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to do so if and when expressly required by, the terms of
this Declaration, and to examine the same to determine
substantial compliance as to form with the express
requirements hereof.
(m) Exchange of Series A Capital Securities for Series
B Capital Securities. The Series A Capital Securities may be
exchanged for Series B Capital Securities pursuant to the terms
of the Exchange Offer. The Trustee shall make the exchange as
follows:
The Property Trustee, upon receipt of (i) an Opinion
of Counsel (x) to the effect that the Series B Capital Securities
have been registered under Section 5 of the Securities Act and
the Indenture has been qualified under the Trust Indenture Act
and (y) with respect to the matters set forth in Section 3(p) of
the Registration Rights Agreement and (ii) a Company Order, shall
authenticate (A) a Global Capital Security for Series B Capital
Securities in aggregate Liquidation Amount equal to the aggregate
Liquidation Amount of Series A Capital Securities represented by
a Global Capital Security indicated in such order as having been
properly tendered and (B) Definitive Capital Securities
representing Series B Capital Securities registered in the names
of, and in the Liquidation Amounts indicated in such order.
If, upon consummation of the Exchange Offer, less than
all the outstanding Series A Capital Securities shall have been
properly tendered and not withdrawn, the Property Trustee shall
make an endorsement on the Global Capital Security for Series A
Capital Securities indicating the reduction in the number and
aggregate Liquidation Amount represented thereby as a result of
the Exchange Offer.
The Trust shall deliver such Definitive Capital
Securities for Series B Capital Securities to the Holders thereof
as indicated in such Company Order.
(n) Minimum Transfers. Series A Capital Securities and
Series B Capital Securities may only be transferred in blocks of
$100,000 aggregate Liquidation Amount or integral multiples of
$1,000 in excess thereof.
SECTION 9.3 Book Entry Interests.
Global Capital Securities shall initially be
registered on the books and records of the Trust in the name of
Cede & Co., the nominee of the Clearing Agency, and no Capital
Security Beneficial Owner will receive a definitive Capital
Security Certificate representing such Capital Security
Beneficial Owner's interests in such Global Capital Securities,
except as provided in Sections 7.9 and 9.2 Unless and until
definitive, fully registered Capital Securities certificates have
been issued to
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the Capital Security Beneficial Owners pursuant to Sections 7.9
and 9.2:
(a) the provisions of this Section 9.4 shall be in
full force and effect;
(b) the Trust, the Administrators, the Paying Agent,
the Registrar 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 Capital Securities and receiving approvals, votes or
consents hereunder) as the Holder of the Capital Securities
and the sole holder of the Global Certificates and shall
have no obligation to the Capital 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 Capital Security Beneficial
Owners shall be exercised only through the Clearing Agency
and shall be limited to those established by law and
agreements between such Capital Security Beneficial Owners
and the Clearing Agency and/or the Clearing Agency
Participants and receive the Clearing Agency shall 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.
SECTION 9.4 Notices to Clearing Agency.
Whenever a notice or other communication to the
Capital Security Holders is required under this Declaration, the
Administrators and the Trustees shall give all such notices and
communications specified herein to be given to the Holders of
Global Capital Securities to the Clearing Agency, and shall have
no notice obligations to the Capital Security Beneficial Owners.
SECTION 9.5 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its
services as securities depositary with respect to the Capital
Securities, the Administrators may, in their sole discretion,
appoint a successor Clearing Agency with respect to such Capital
Securities.
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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 Sponsor shall not be:
(i) personally liable for the return of any portion of
the capital contributions (or any return thereon) of the
Holders which shall be made solely from assets of the
Trust; and
(ii) be required to pay to the Trust or to any Holder
any deficit upon dissolution of the Trust or otherwise.
(b) The Debenture Issuer shall be liable for all of
the debts and obligations of the Trust (other than with respect
to the payment of principal, interest and premium, if any, with
respect to the Securities) to the extent not satisfied out of the
Trust's assets.
(c) Pursuant to ss. 3803(a) of the Business Trust Act,
the Holders 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 except as provided in
Section 3.9(c).
(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, if selected by such Indemnified Person,
has been selected by such Indemnified Person with reasonable care
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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
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,
each Covered Person or 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
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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, 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
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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 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 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 by the
Common Security Holder of the Trust, that, based upon the
facts known to 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
Common Security Holder reasonably determines that such
person deliberately
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breached his duty to the Trust or its Common or Capital
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 Capital 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 inure to the benefit
of the heirs, executors and administrators of such a
person.
(b) The Debenture Issuer agrees to indemnify (i) the
Property Trustee, (ii) the Delaware Trustee, (iii) any Affiliate
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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 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 10.4(b) shall survive the
dissolution of the Trust and the termination of this Declaration
or the earlier resignation or removal of such Fiduciary
Indemnified Person.
SECTION 10.5 Outside Businesses.
Any Covered Person, the Sponsor, 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 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 Sponsor, 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 Sponsor,
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 Sponsor or any
Affiliate of the Sponsor, 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 Sponsor or its Affiliates.
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SECTION 10.6 Compensation Fees
The Sponsor agrees:
(a) to pay to the Trustees from time to time
reasonable compensation for all services rendered by them
hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust); and
(b) except as otherwise expressly provided herein, to
reimburse the Trustees upon request for all reasonable expenses,
disbursements and advances incurred or made by the Trustees in
accordance with any provision of this Declaration (including the
reasonable compensation and the expenses and disbursements of
their respective agents and counsel), except any such expense,
disbursement or advance as may be attributable to their
respective negligence or bad faith.
The provisions of this Section 10.6 shall survive the
dissolution of the Trust and the termination of this Declaration
and the removal or resignation of any Trustee.
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 Administrators 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.
(b) The Administrators shall cause to be duly prepared
and delivered to each of the Holders, 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 Administrators shall
endeavor to deliver all such information statements within 30
days after the end of each Fiscal Year of the Trust.
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(c) The Sponsor 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
Sponsor 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,
however, 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 Administrators;
provided, however, that the Property Trustee shall designate the
signatories for the Property Trustee Account.
SECTION 11.4 Withholding.
The Trust and the Administrators 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
Administrators 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
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may only be amended by a written instrument approved and executed
by:
(i) the Sponsor;
(ii) the Property Trustee; and
(iii) the Delaware Trustee.
(b) No amendment shall be made, and any such purported
amendment shall be void and ineffective:
(i) unless the Property Trustee shall have first
received an opinion of counsel (who may be counsel to the
Sponsor or the Trust) that such amendment is permitted by,
and conforms to, the terms of this Declaration (including
the terms of the Securities), provided, however, that the
Property Trustee and the Delaware Trustee shall not be
required to sign any such amendment which affects the
rights, powers, duties, obligations or immunities of the
Property Trustee or the Delaware Trustee under the
Declaration or otherwise; and
(ii) 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;
(d) Section 10.1(c) and this Section 12.1 shall not
be amended without the consent of all of the Holders;
(e) Article IV shall not be amended without the
consent of the Holders of a Majority in Liquidation Amount of the
Common Securities;
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(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 without the consent of the Holders of the
Securities to:
(i) cure any ambiguity, correct or supplement any
provision in this Declaration that may be inconsistent with
any other provision of this Declaration or to make any
other provisions with respect to matters or questions
arising under this Declaration which shall not be
inconsistent with the other provisions of the Declaration;
and
(ii) modify, eliminate or add to any provisions of the
Declaration to such extent as shall be necessary to ensure
that the Trust will be classified for United States federal
income tax purposes as a grantor trust at all times that
any Securities are outstanding or to ensure that the Trust
will not be required to register as an Investment Company
under the Investment Company Act.
provided, however, that in the case of clause (i), such action
shall not adversely affect in any material respect the interests
of the Holders, and any amendments of this Declaration shall
become effective when notice thereof is given to the Holders.
SECTION 12.2 Meetings of the Holders; Action by Written
Consent.
(a) Meetings of the Holders of any class of Securities
may be called at any time by the Administrators (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 Capital
Securities are listed or admitted for trading. The Administrators
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 Administrators one or more notices in a writing
stating that the signing Holders of Securities wish to call a
meeting and indicating the general or specific purpose for which
the meeting is to be called. Any Holders calling a meeting shall
specify in writing the Security Certificates held by the Holders
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.
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(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 having a right to vote thereat at least seven
days and not more than 60 days before the date of such
meeting. Whenever a vote, consent or approval of the
Holders is permitted or required under this Declaration or
the rules of any stock exchange on which the Capital
Securities are listed or admitted for trading, such vote,
consent or approval may be given at a meeting of the
Holders. Any action that may be taken at a meeting of the
Holders may be taken without a meeting if a consent in
writing setting forth the action so taken is signed by the
Holders 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 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 entitled to vote who
have not consented in writing. The Administrators 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 Administrators;
(ii) each Holder may authorize any Person to act for
it by proxy on all matters in which a Holder 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 the Holders were
stockholders of a Delaware corporation;
(iii) each meeting of the Holders shall be conducted
by the Administrators or by such other Person that the
Administrators 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 Capital
Securities are then listed or trading, otherwise provides,
the Administrators, in their sole discretion, shall
establish all other provisions relating to meetings of
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Holders, including notice of the time, place or purpose of
any meeting at which any matter is to be voted on by any
Holders, 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 Sponsor at the
date of this Declaration, and each Successor Property Trustee
(with appropriate changes to clause (a)) represents and warrants
to the Trust and the Sponsor at the time of the Successor
Property Trustee's acceptance of its appointment as Property
Trustee that:
(a) The Property Trustee is a New York banking
corporation 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 this Declaration has been duly authorized by
all necessary corporate action on the part of the Property
Trustee. This Declaration has been duly executed and delivered by
the Property Trustee and 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
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 New York State or federal
banking authority is required for the execution, delivery or
performance by the Property Trustee of this Declaration.
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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 Sponsor at the
date of this Declaration, and each Successor Delaware Trustee
represents and warrants to the Trust and the Sponsor 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 execution, delivery and performance by the
Delaware Trustee of this Declaration has been duly authorized by
all necessary corporate action on the part of the Delaware
Trustee. This Declaration has been duly executed and delivered by
the Delaware Trustee and 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 federal banking authority is
required for the execution, delivery or performance by the
Delaware Trustee of this Declaration; and
(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.
ARTICLE XIV
REGISTRATION RIGHTS
SECTION 14.1 Registration Rights Agreement.
The Holders of the Capital Securities, the Debentures
and the Capital Securities Guarantee are entitled to the benefits
of the Registration Rights Agreement.
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ARTICLE XV
MISCELLANEOUS
SECTION 15.1 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
Administrators at the Trust's mailing address set forth below (or
such other address as the Trust may give notice of to the Holders
and the Property Trustee):
ALBANK Capital Trust I
c/o ALBANK Financial Corporation
10 North Pearl Street
Albany, New York 12207
Attention: General Counsel
(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):
Chase Manhattan Bank Delaware
1201 Market Street
Wilmington, Delaware 19801
Attention: Corporate Trustee Administration
Department
(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):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee Administration
Department
(d) if given to the Holder of the Common Securities,
at the mailing address of the Sponsor set forth below (or such
other address as the Holder of the Common Securities may give
notice to the Trust and the Property Trustee):
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ALBANK Financial Corporation
10 North Pearl Street
Albany, New York 12207
Attention: General Counsel
(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 15.2 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, provided that the immunities and standard of
care of the Property Trustee in connection with the
administration of its trusts hereunder shall be governed by and
interpreted in accordance with the laws of the jurisdiction of
its incorporation.
SECTION 15.3 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 15.4 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 15.5 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 Sponsor and the Trustees shall bind
and inure to the benefit of their respective successors and
assigns, whether so expressed.
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SECTION 15.6 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
application of such provision to persons or circumstances other
than those to which it is held invalid, shall not be affected
thereby.
SECTION 15.7 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 the Sponsor and 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.
/s/ Richard J. Heller
------------------------------
Richard J. Heller,
as Administrator
/s/ Barry G. Blenis
------------------------------
Barry G. Blenis,
as Administrator
/s/ Freling H. Smith
------------------------------
Freling H. Smith,
as Administrator
Chase Manhattan Bank Delaware,
as Delaware Trustee
By: /s/ John J. Cashin
---------------------------
Name: John J. Cashin
Title: Vice President
The Chase Manhattan Bank,
as Property Trustee
By: /s/ Gregory P. Shea
---------------------------
Name: Gregory P. Shea
Title: Senior Trust Officer
ALBANK Financial Corporation,
as Sponsor
By: /s/ H.G. Chorbajian
---------------------------
Name:
Title:
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ANNEX I
TERMS OF
9.27% SERIES A/SERIES B CAPITAL SECURITIES
9.27% COMMON SECURITIES
Pursuant to Section 7.1 of the Amended and Restated
Declaration of Trust, dated as of June 6, 1997 (as amended from
time to time, the "Declaration"), the designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the 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 Indenture or, if not defined therein, as defined in the
Offering Memorandum:
1. Designation and Number.
(a) Capital Securities. 50,000 Series A Capital
Securities of the Trust and 50,000 Series B Capital Securities of
the Trust, each series with an aggregate Liquidation Amount with
respect to the assets of the Trust of $50,000,000 and each with a
Liquidation Amount with respect to the assets of the Trust of
$1,000 per Security, are hereby designated for the purposes of
identification only as 9.27% Series A Capital Securities and
9.27% Series B Capital Securities, respectively (collectively,
the "Capital Securities"). The certificates evidencing the
Capital 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 or quotation system on which the Capital Securities are
listed or quoted.
(b) Common Securities. 1,547 Common Securities of the
Trust with an aggregate Liquidation Amount with respect to the
assets of the Trust of $1,547,000 and each with a Liquidation
Amount with respect to the assets of the Trust of $1,000 per
Security, are hereby designated for the purposes of
identification only as 9.27% Common Securities (the "Common
Securities"). The 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.
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2. Distributions.
(a) Distributions payable on each Security will be
fixed at a rate per annum of 9.27% (the "Coupon Rate") of the
liquidation amount of $1,000 per Security (the "Liquidation
Amount"), 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 semi-annual period will bear additional
distributions thereon compounded semi-annually at the Coupon Rate
(to the extent permitted by applicable law). Pursuant to the
Registration Rights Agreement, in certain limited circumstances
the Debenture Issuer will be required to pay Additional
Distributions (as defined in the Registration Rights Agreement)
with respect to the Debentures. The term "Distributions", as used
herein, includes distributions of any such interest and
Additional Distributions 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 on hand legally
available therefor.
(b) Distributions on the Securities will be
cumulative, will accumulate from the most recent date to which
Distributions have been paid or duly provided for or, if no
Distributions have been paid or duly provided for, from June 6,
1997, and will be payable semi-annually in arrears on June 6, and
December 6 of each year, commencing on December 6, 1997, except
as otherwise described below. The amount of Distributions payable
for any period will be computed on the basis of a 360-day year
consisting of twelve 30-day months and for any period of less
than a full calendar month on the basis of the actual number of
days elapsed in such month. 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 shall 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), with the
same force and effect as if made on the date such payment was
originally payable (each date on which Distributions are payable
in accordance with the foregoing, a "Distribution Date"). So long
as no Event of Default (as defined in the Indenture) has occurred
and is continuing under the Indenture, the Debenture Issuer has
the right under the Indenture to defer payments of interest by
extending the interest payment period at any time and from time
to time on the Debentures for a period not exceeding 10
consecutive semi-annual periods, including the first such
semi-annual period during such period (each an "Extension
Period"), during which Extension Period no interest shall be due
and payable on the Debentures, provided that no Extension Period
shall end on a day other than an interest payment date for the
Debentures or shall extend beyond the Maturity Date of the
Debentures. As a consequence of such deferral, Distributions will
also be deferred. Notwithstanding
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such deferral, Distributions will continue to accumulate with
additional Distributions thereon at the Coupon Rate (to the
extent permitted by applicable law but not at a rate greater than
the rate at which interest is then accruing on the Debentures)
compounded semi-annually on the relevant Distribution Dates
during any such Extension Period. Prior to the expiration of any
Extension Period, the Debenture Issuer may further defer payments
of interest by extending such Extension Period; provided that
such Extension Period, together with all previous and further
extensions, if any, within such Extension Period, may not exceed
10 consecutive semi-annual periods, including the first
semi-annual period during such Extension Period, or extend beyond
the Maturity Date of the Debentures. Upon the expiration 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 date fifteen days prior to the relevant
Distribution Date, which Distribution Dates correspond to the
interest payment dates on the Debentures. Subject to any
applicable laws and regulations and the provisions of the
Declaration, each such payment in respect of the Capital
Securities will be made as follows: (i) if the Capital Securities
are held in global form by a Clearing Agency (or its nominee), in
accordance with the procedures of the Clearing Agency; and (ii)
if the Capital Securities are held in definitive form, by check
mailed to the address of the Holder thereof entitled thereto as
reflected in the records of the Registrar unless otherwise agreed
by the Trust. The relevant record dates for the Common Securities
shall be the same as the record dates for the Capital Securities.
Distributions payable on any Securities that are not punctually
paid on any Distribution Date, as a result of the Debenture
Issuer having failed to make a payment under the Debentures, will
cease to be payable to the Holder 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.
(d) In the event that there is any money or other
property held by or for the Trust on a Distribution Date that is
not accounted for hereunder, such property shall be distributed
Pro Rata (as defined herein) pursuant to Section 8 among the
Holders.
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3. Liquidation Distribution Upon Dissolution.
In the event of any dissolution of the Trust or the
Sponsor otherwise gives notice of its election to liquidate the
Trust pursuant to Section 8.1(a)(iii) of the Declaration, the
Trust shall be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible
by distributing, after satisfaction of liabilities to creditors
of the Trust as provided by applicable law, to the Holders a Like
Amount (as defined below) of the Debentures, unless such
distribution is determined by the Property Trustee not to be
practicable, in which event such Holders will be entitled to
receive Pro Rata out of the assets of the Trust legally available
for distribution to Holders, after satisfaction of liabilities to
creditors of the Trust as provided by applicable law, an amount
equal to the aggregate of the Liquidation Amount of $1,000 per
Security plus accumulated and unpaid Distributions thereon to the
date of payment (such amount being the "Liquidation
Distribution").
"Like Amount" means (i) with respect to a redemption
of the Securities, Securities having a Liquidation Amount equal
to the principal amount of Debentures to be paid in accordance
with their terms and (ii) with respect to a distribution of
Debentures upon the liquidation of the Trust, Debentures having a
principal amount equal to the Liquidation Amount of the
Securities of the Holder to whom such Debentures are distributed.
If, upon any such liquidation, the Liquidation
Distribution can be paid only in part because the Trust has
insufficient assets on hand legally 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 as set forth in Section 8.
4. Redemption and Distribution.
(a) Upon the repayment of the Debentures on the Maturity
Date thereof or prepayment thereof (in whole or in part) prior
thereto in accordance with the terms thereof, the proceeds from
such repayment or prepayment shall be simultaneously applied by
the Property Trustee (subject to the Property Trustee having
received notice no later than 45 days prior to such repayment or
prepayment) to redeem a Like Amount of the Securities at a
redemption price equal to (i) in the case of the repayment of the
Debentures on the Maturity Date, the Maturity Redemption Price
(as defined below), (ii) in the case of the optional prepayment
of the Debentures upon the occurrence and continuation of a
Special Event, the Special Event Redemption Price (as defined
below) and (iii) in the case of the optional prepayment of the
Debentures other than as a result of the occurrence and
continuance of a Special Event, the Optional Redemption Price (as
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defined below). The Maturity Redemption Price, the Special Event
Redemption Price and the Optional Redemption Price are referred
to collectively as the "Redemption Price". Holders will be given
not less than 30 nor more than 60 days notice of such redemption.
(b) (i) The "Maturity Redemption Price", with respect to
a redemption of Securities, shall mean an amount equal to the
principal of and accrued and unpaid interest on the Debentures as
of the Maturity Date thereof.
(ii) In the case of an optional prepayment of the
Debentures, if fewer than all the outstanding Securities are to
be so redeemed, the Capital Securities will be redeemed Pro Rata
and the Capital Securities to be redeemed will be determined as
described in Section 4(f)(ii) below. Upon the entry of an order
for the dissolution of the Trust by a court of competent
jurisdiction, the Debentures thereafter will be subject to
optional repayment, in whole, but not in part, on or after June
6, 2007 (the "Initial Optional Redemption Date").
The Debenture Issuer shall have the right (subject to
the conditions in the Indenture) to elect to prepay the
Debentures in whole or in part at any time on or after the
Initial Optional Prepayment Date, upon not less than 30 days and
not more than 60 days notice, at the Optional Prepayment Price
(as defined in the Indenture) and, simultaneous with such
prepayment, to cause a Like Amount of the Securities to be
redeemed by the Trust at the Optional Redemption Price on a Pro
Rata basis. "Optional Redemption Price" shall mean a price equal
to the percentage of the Liquidation Amount of Securities to be
redeemed plus accumulated and unpaid Distributions thereon, if
any, to the date of such redemption; if redeemed during the 12-
month period beginning June 6, of the years indicated below:
Year Percentage
---- ----------
2007 104.635%
2008 104.172%
2009 103.708%
2010 103.245%
2011 102.781%
2012 102.318%
2013 101.854%
2014 101.391%
2015 100.927%
2016 100.464%
2017 and thereafter 100.000%
(c) If at any time a Tax Event, an Investment Company
Event or a Regulatory Capital Event (each as defined below, and
each a "Special Event") occurs, the Debenture Issuer shall have
the right (subject to the conditions set forth in the Indenture)
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at any time prior to the Initial Optional Redemption Date, upon
not less than 30 nor more than 60 days notice, to prepay the
Debentures in whole, but not in part, within the 90 days
following the occurrence of such Special Event (the "90 Day
Period"), and, simultaneous with such redemption, to cause a Like
Amount of the Securities to be redeemed by the Trust at the
Special Event Redemption Price on a Pro Rata basis.
A "Tax Event" means the receipt by the Sponsor and the
Trust of an opinion of a nationally recognized tax counsel
experienced in such matters to the effect that, 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, or (b) any judicial decision
or 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 administrative position or
interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental agency 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
Administrative Action or decision is announced, in each case, on
or after the date of the Offering Memorandum, there is more than
an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on
the Debentures, (ii) the interest payable by the Sponsor on the
Debentures is not, or within 90 days of the date of such opinion
will not be, deductible by the Sponsor, in whole or in part, for
United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
A "Regulatory Capital Event" shall occur at any time
that the Debenture Issuer becomes, or pursuant to law or
regulation, any rules, guidelines or policies of the Board of
Governors of the Federal Reserve System (the "Federal Reserve")
or any official administrative announcement or decision
interpreting such laws, regulations, rules, policies or
guidelines, will become within 180 days, subject to capital
requirements under which, in the written opinion of independent
bank regulatory counsel experienced in such matters, the Capital
Securities would not constitute Tier 1 Capital applied as if the
Sponsor (or its successor) were a bank holding company (as that
concept is used in the guidelines or regulations issued by the
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Federal Reserve as of the date of the Offering Memorandum) or its
then equivalent ("Tier 1 Capital").
"Investment Company Event" means the receipt by the
Sponsor and the Trust of an opinion of nationally recognized
independent counsel experienced in practice under the Investment
Company Act of 1940, as amended (the "Investment Company Act"),
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"),
there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" which 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 the Offering Memorandum.
"Special Event Redemption Price" shall mean, with
respect to a redemption of Securities, a price equal to the
greater of (i) 100% of the principal of a Like Amount of
Debentures to be redeemed and (ii) the sum, as determined by a
Quotation Agent (as defined in the Indenture), of the present
values of 100% of the principal amount thereof plus scheduled
payments of interest thereon from the redemption date to and
including the Initial Optional Redemption Date, discounted to the
redemption date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Adjusted Treasury Rate
(as defined in the Indenture), plus, in each case, accumulated
and unpaid Distributions thereon, if any, to the date of such
redemption.
(d) On and from the date fixed by the Administrators
for any distribution of Debentures and liquidation of the Trust:
(i) the Securities will no longer be deemed to be outstanding,
(ii) the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee), as the Holder of the Capital
Securities, will receive a registered global certificate or
certificates representing the Debentures to be delivered upon
such distribution and any certificates representing Securities
not held by the Clearing Agency or its nominee (or any successor
Clearing Agency or its nominee) will be deemed to represent
beneficial interests in a Like Amount of Debentures until such
certificates are presented to the Debenture Issuer or its agent
for transfer or reissue.
(e) The Trust may not redeem fewer than all the
outstanding Securities unless all accumulated and unpaid
Distributions have been paid on all Securities for all
semi-annual Distribution periods that expire on or before the
date of redemption.
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<PAGE>
(f) The procedure with respect to redemptions or
distributions of Debentures shall be as follows:
(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 the
Trust by mail to each Holder 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 repayment or
prepayment 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. Each
Redemption/Distribution Notice shall be addressed to the
Holders 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) All notices of redemption shall state:
(a) the redemption date;
(b) the Redemption Price, provided, however, that if
the Redemption Price is not known at the time the notice is
sent, the notice need not set forth the Redemption Price;
(c) the CUSIP number;
(d) if fewer than all the outstanding Securities are
to be redeemed, the identification and the total liquidation
amount of the particular Securities to be redeemed; and
(e) that on the redemption date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that the Distributions thereon will cease to
accrue on and after said date.
(iii) 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, it
being understood that, in respect of Capital Securities
registered in the name of and held of record by the
Clearing Agency or its nominee (or any successor Clearing
Agency or its nominee), the distribution of the proceeds of
such redemption will be made to the Clearing Agency or its
nominee and disbursed by such Clearing Agency or its
nominee
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in accordance with the procedures applied by such agency or
nominee.
(iv) If Securities are to be redeemed and the Trust
gives a Redemption/Distribution Notice (which notice shall
be irrevocable), and (A) with respect to Capital Securities
registered in the name of or held of record by a Clearing
Agency or its nominee, 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 maturity or prepayment of
the Debentures by 10:00 a.m., New York City time, on the
Maturity Date or the date of prepayment as the case may be,
the Property Trustee or the Paying Agent will pay to the
Clearing Agency or its nominee (or successor Clearing
Agency or its nominee) funds sufficient to pay the
applicable Redemption Price with respect to such Capital
Securities and (B) with respect to Capital Securities
issued in certificated form and Common Securities, provided
that the Debenture Issuer has paid the Property Trustee a
sufficient amount of cash in connection with the related
maturity or prepayment of the Debentures, the Property
Trustee or the Paying Agent will pay the relevant
Redemption Price to the Holders of such Securities against
presentation to the Paying Agent of the certificates
therefor. If a Redemption/Distribution Notice shall have
been given and funds deposited with the Property Trustee to
pay the Redemption Price (including all unpaid
Distributions) with respect to the Securities called for
redemption, 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 accumulate 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, and such Securities shall cease to
be outstanding.
(v) Payment of accumulated and unpaid Distributions on
the redemption date of any Securities will be subject to
the rights of Holders of such Securities on the close of
business on a regular record date in respect of a
Distribution Date occurring on or prior to such Redemption
Date.
(vi) Neither the Administrators nor the Trust shall be
required to register or cause to be registered the transfer
of (A) any Securities beginning on the opening of business
15 days before the day of mailing of a notice of redemption
or any notice of selection of Securities for redemption or
(B) any Securities selected for redemption (except the
unredeemed portion of any Security being redeemed). If any
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<PAGE>
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, 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 the Paying Agent or
by the Sponsor as guarantor pursuant to the relevant
Securities Guarantee, on the date fixed for redemption, (A)
Distributions on such Securities will continue to
accumulate from such redemption date to the actual date of
payment, and (B) the actual payment date will be considered
the date fixed for redemption for purposes of calculating
the Redemption Price.
(vii) Redemption/Distribution Notices shall be sent by
the Property Trustee on behalf of the Trust to (A) in
respect of the Capital Securities, the Clearing Agency or
its nominee (or any successor Clearing Agency or its
nominee) if the Global Certificates have been issued or, if
Definitive Capital Security Certificates have been issued,
to the Holder thereof, and (B) in respect of the Common
Securities to the Holder thereof.
(viii) Subject to the foregoing and applicable law
(including, without limitation, United States federal
securities laws and banking laws), provided the acquiror is
not the Holder of the Common Securities or the obligor
under the Indenture, the Sponsor or any of its Affiliates
may at any time and from time to time purchase outstanding
Capital Securities by tender, in the open market or by
private agreement.
5. Voting Rights - Capital Securities.
(a) Except as provided under Sections 5(b) and 7 and
as otherwise required by law and the Declaration, the Holders of
the Capital Securities will have no voting rights.
(b) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on such Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 5.07 of the
Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of
the Debentures or (iv) consent to any amendment, modification or
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termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Capital Securities; provided, however, that
where a consent under the Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior approval of
each Holder of the Capital Securities. The Trustees shall not
revoke any action previously authorized or approved by a vote of
the Holders of the Capital Securities except by subsequent vote
of such Holders. Subject to Section 2.7 of the Declaration the
Property Trustee shall notify each Holder of Capital Securities
of any notice of default with respect to the Debentures. In
addition to obtaining the foregoing approvals of such Holders of
the Capital Securities, prior to taking any of the foregoing
actions, the Trustees shall obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not
be classified as an association taxable as a corporation for
United States federal income tax purposes on account of such
action.
If an Event of Default under the Declaration has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay principal of or premium,
if any, or interest on the Debentures on any due date (including
any Interest Payment Date or prepayment date or the Maturity
Date), then a Holder of Capital Securities may directly institute
a proceeding for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on a Like Amount of
Debentures (a "Direct Action") on or after the respective due
date specified in the Debentures. In connection with such Direct
Action, the rights of the Common Security Holder will be
subrogated to the rights of the Holders of Capital Securities to
the extent of any payment made by the Debenture Issuer to the
Holders of Capital Securities in such Direct Action. Except as
provided in the second preceding sentence, the Holders of Capital
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 Capital
Securities may be given at a separate meeting of Holders of
Capital Securities convened for such purpose, at a meeting of the
Holders of Securities in the Trust or pursuant to written
consent. The Administrators will cause a notice of any meeting at
which Holders of Capital 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 Capital
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
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sought and (iii) instructions for the delivery of proxies or
consents.
No vote or consent of the Holders of the Capital
Securities will be required for the Trust to redeem and cancel
Capital Securities or to distribute the Debentures in accordance
with the Declaration and the terms of the Securities.
Notwithstanding that Holders of Capital Securities are
entitled to vote or consent under any of the circumstances
described above, any of the Capital Securities that are owned by
the Sponsor or any Affiliate of the Sponsor 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), 6(c), and
7 or as otherwise required by law and the Declaration, the
Holders of the Common Securities will have no voting rights.
(b) Unless an Event of Default shall have occurred and
be continuing, any Trustee may be removed at any time by the
Holder of the Common Securities. If an Event of Default has
occurred and is continuing, the Property Trustee and the Delaware
Trustee may be removed at such time by the Holders of a Majority
in Liquidation Amount of the outstanding Capital Securities. In
no event will the Holders of the Capital Securities have the
right to vote to appoint, remove or replace the Administrators,
which voting rights are vested exclusively in the Sponsor as the
Holder of the Common Securities. No resignation or removal of a
Trustee and no appointment of a successor trustee shall be
effective until the acceptance of appointment by the successor
trustee in accordance with the provisions of the Declaration.
(c) So long as any Debentures are held by the Property
Trustee, the Trustees shall not (i) direct the time, method and
place of conducting any proceeding for any remedy available to
the Debenture Trustee, or executing any trust or power conferred
on such Debenture Trustee with respect to the Debentures, (ii)
waive any past default that is waivable under Section 5.07 of the
Indenture, (iii) exercise any right to rescind or annul a
declaration of acceleration of the maturity of the principal of
the Debentures or (iv) consent to any amendment, modification or
termination of the Indenture or the Debentures, where such
consent shall be required, without, in each case, obtaining the
prior approval of the Holders of a Majority in Liquidation Amount
of all outstanding Common Securities; provided, however, that
where a consent under the Indenture would require the consent of
each holder of Debentures affected thereby, no such consent shall
be given by the Property Trustee without the prior approval of
each Holder of the Common Securities. The Trustees shall not
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revoke any action previously authorized or approved by a vote of
the Holders of the Common Securities except by subsequent vote of
such Holders. Subject to Section 2.7 of the Declaration the
Property Trustee shall notify each Holder of Common Securities of
any notice of default with respect to the Debentures. In addition
to obtaining the foregoing approvals of such Holders of the
Common Securities, prior to taking any of the foregoing actions,
the Trustees shall obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will not be classified
as an association taxable as a corporation for United States
federal income tax purposes on account of such action.
If an Event of Default under the Declaration has
occurred and is continuing and such event is attributable to the
failure of the Debenture Issuer to pay principal of or premium,
if any, or interest on the Debentures on the due date therefor
(including any Interest Payment Date or prepayment date or the
Maturity Date), then a Holder of Common Securities may institute
a Direct Action for enforcement of payment to such Holder of the
principal of or premium, if any, or interest on a Like Amount of
Debentures on or after the respective due date specified in the
Debentures. In connection with any Direct Action, the rights of
the Capital Securities Holders will be subrogated to the rights
of the Holders of Common Securities to the extent of any payment
made by the Debenture Issuer to Holders of Common Securities in
such Direct Action. Except as provided in the second preceding
sentence, the Holders of Common 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 Common
Securities may be given at a separate meeting of Holders of
Common Securities convened for such purpose, at a meeting of the
Holders of Securities in the Trust or pursuant to written
consent. The Administrators 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.
I-13
<PAGE>
7. Amendments to Declaration.
In addition to the requirements set out in Section
12.1 of the Declaration, the Declaration may be amended from time
to time by the Sponsor and the Trustees, without the consent of
the Holders (i) to cure any ambiguity, correct or supplement any
provisions in the Declaration that may be inconsistent with any
other provisions, or to make any other provisions with respect to
matters or questions arising under the Declaration which shall
not be inconsistent with the other provisions of the Declaration,
or (ii) to modify, eliminate or add to any provisions of the
Declaration to such extent as shall be necessary to ensure that
the Trust will be classified for United States federal income tax
purposes as a grantor trust at all times that any Securities are
outstanding or to ensure that the Trust will not be required to
register as an "Investment Company" under the Investment Company
Act; provided, however, that in the case of clause (i), such
action shall not adversely affect in any material respect the
interests of any Holder of Securities. Any amendments of the
Declaration pursuant to the foregoing shall become effective when
notice thereof is given to the Holders of the Securities. The
Declaration also may be amended by the Trustees and the Sponsor
with (i) the consent of Holders representing a Majority in
Liquidation Amount of all outstanding Securities, and (ii)
receipt by the Trustees of an Opinion of Counsel experienced in
such matters to the effect that such amendment or the exercise of
any power granted to the Trustees in accordance with such
amendment will not affect the Trust's status as a grantor trust
for United States federal income tax purposes or the Trust's
exemption from status as an Investment Company under the
Investment Company Act, provided that, without the consent of
each Holder of Trust Securities, the Declaration may not be
amended to (i) change the amount or timing of any Distribution on
the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust
Securities as of a specified date or (ii) restrict the right of a
Holder of Trust Securities to institute suit for the enforcement
of any such payment on or after such date.
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 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 Capital Securities pro rata according to the
aggregate Liquidation Amount of Capital Securities held by the
relevant Holder relative to the aggregate Liquidation Amount of
I-14
<PAGE>
all Capital Securities outstanding, and only after satisfaction
of all amounts owed to the Holders of the Capital 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.
In any such proration the Trust may make such
adjustments as may be appropriate in order that only Securities
in authorized denominations shall be redeemed (subject to the
minimum block requirement of Section 9.2(n) of the Declaration).
9. Ranking.
The Capital Securities rank pari passu with the Common
Securities and payment thereon shall be made Pro Rata with the
Common Securities, except that, if an Event of Default under the
Declaration occurs and is continuing, no payments in respect of
Distributions on, or payments upon liquidation, redemption or
otherwise with respect to, the Common Securities shall be made
until the Holders of the Capital Securities shall be paid in full
the Distributions, Redemption Price, Liquidation Distribution and
other payments to which they are entitled at such time.
10. Acceptance of Securities Guarantee and Indenture.
Each Holder of Capital Securities and Common
Securities, by the acceptance thereof, agrees to the provisions
of the Capital Securities Guarantee and the Common Securities
Guarantee, respectively, including the subordination provisions
therein and to the provisions of the Indenture.
11. No Preemptive Rights.
The Holders shall have no preemptive or similar rights
to subscribe for any additional securities.
12. Miscellaneous.
These terms constitute a part of the Declaration.
The Sponsor will provide a copy of the Declaration,
the Capital Securities Guarantee or the Common Securities
Guarantee (as may be appropriate), and the Indenture (including
any supplemental indenture) to a Holder without charge on written
request to the Sponsor at its principal place of business.
I-15
<PAGE>
EXHIBIT A-1
FORM OF CAPITAL SECURITY CERTIFICATE
[FORM OF FACE OF SECURITY]
[IF THIS GLOBAL SECURITY IS A GLOBAL CAPITAL SECURITY,
INSERT: THIS CAPITAL SECURITY IS A GLOBAL CAPITAL SECURITY WITHIN
THE MEANING OF THE DECLARATION HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY (THE
"CLEARING AGENCY") OR A NOMINEE OF THE CLEARING AGENCY. THIS
CAPITAL SECURITY IS EXCHANGEABLE FOR CAPITAL SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE CLEARING AGENCY
OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
DECLARATION AND NO TRANSFER OF THIS CAPITAL SECURITY (OTHER THAN
A TRANSFER OF THIS CAPITAL SECURITY AS A WHOLE BY THE CLEARING
AGENCY TO A NOMINEE OF THE CLEARING AGENCY OR BY A NOMINEE OF THE
CLEARING AGENCY TO THE CLEARING AGENCY OR ANOTHER NOMINEE OF THE
CLEARING AGENCY) MAY BE REGISTERED EXCEPT IN LIMITED
CIRCUMSTANCES.
UNLESS THIS CAPITAL SECURITY IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55
WATER STREET, NEW YORK, NEW YORK) TO THE TRUST OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CAPITAL
SECURITY 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.]
[IF THIS CAPITAL SECURITY IS A SERIES A CAPITAL
SECURITY, INSERT: THE HOLDER OF THIS CAPITAL SECURITY BY ITS
ACCEPTANCE HEREOF IS DEEMED TO HAVE AGREED TO BE BOUND BY THE
PROVISIONS OF A REGISTRATION RIGHTS AGREEMENT AMONG THE TRUST,
ALBANK FINANCIAL CORPORATION (THE "SPONSOR") AND MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED DATED JUNE 6, 1997 (THE
"REGISTRATION RIGHTS AGREEMENT"). THE SPONSOR WILL PROVIDE A COPY
OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER WITHOUT CHARGE
UPON WRITTEN REQUEST TO THE TRUST AT ITS PRINCIPAL PLACE OF
BUSINESS.]
[IF THIS CAPITAL SECURITY IS A RESTRICTED CAPITAL
SECURITY, INSERT: THIS CAPITAL SECURITY HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT") OR ANY STATE SECURITIES LAWS OR ANY OTHER APPLICABLE
SECURITIES LAW. NEITHER THIS CAPITAL SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
A1-1
<PAGE>
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS CAPITAL
SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION TERMINATION
DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS CAPITAL
SECURITY (OR ANY PREDECESSOR OF THIS CAPITAL SECURITY) ONLY (A)
TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG
AS THIS CAPITAL SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A)
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS CAPITAL
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT
TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS UNDER THE SECURITIES ACT, SUBJECT TO THE RIGHT OF
THE TRUST AND THE COMPANY PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM AND (ii) PURSUANT TO
CLAUSE (E), TO REQUIRE THAT THE TRANSFEROR DELIVER TO THE TRUST A
LETTER FROM THE TRANSFEREE SUBSTANTIALLY IN THE FORM OF ANNEX A
TO THE OFFERING MEMORANDUM DATED JUNE 4, 1997 RELATING TO THIS
CAPITAL SECURITY. SUCH HOLDER FURTHER AGREES THAT IT WILL DELIVER
TO EACH PERSON TO WHOM THIS CAPITAL SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE HOLDER OF THIS CAPITAL SECURITY BY ITS ACCEPTANCE
HEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT EITHER (i) IT IS
NOT AN EMPLOYEE BENEFIT PLAN SUBJECT TO THE EMPLOYMENT RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA") OR (ii) THE
ACQUISITION AND HOLDING OF THIS CAPITAL SECURITY BY IT IS NOT
PROHIBITED BY EITHER SECTION 406 OF ERISA OR SECTION 4975 OF THE
U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR IS EXEMPT FROM
ANY SUCH PROHIBITION.]
A1-2
<PAGE>
Certificate Number Number of Capital Securities
[up to]**
CUSIP NO. __________
Certificate Evidencing Capital Securities
of
ALBANK Capital Trust I
9.27% Series _____ Capital Securities
(Liquidation Amount $1,000 per Capital Security Issuable
in Minimum Blocks of 100 Capital Securities)
ALBANK Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ______________ (the "Holder") is the
registered owner of [$__________ in aggregate liquidation amount
of Capital Securities of the Trust]* [the aggregate liquidation
amount of Capital Securities of the Trust specified in Schedule A
hereto]** representing undivided beneficial interests in the
assets of the Trust designated the 9.27% Series ______ Capital
Securities (Liquidation Amount $1,000 per Capital Security
issuable in minimum blocks of 100 Capital Securities) (the
"Capital Securities"). The Capital 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 Capital Securities represented hereby are set
forth herein, on the reverse hereof and in the Amended and
Restated Declaration of Trust of the Trust dated as of June 6,
1997, as the same may be amended from time to time (the
"Declaration"), and shall in all respects be subject to the
provisions thereof, including the designation of the terms of the
Capital Securities as set forth in Annex I to the Declaration.
Each capitalized term used but not defined herein or in any
legend, form or certificate hereon shall have the meaning given
to it in the Declaration. The Sponsor will provide a copy of the
Declaration, the Capital Securities Guarantee and the Indenture
to any 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 and
to the benefits of the Capital Securities Guarantee to the extent
provided therein.
* Insert in Definitive Capital Securities only.
A1-3
<PAGE>
** Insert in Global Capital Securities only.
By its acceptance hereof, the Holder agrees to treat,
for United States federal income tax purposes, the Debentures as
indebtedness and the Capital Securities as evidence of indirect
beneficial ownership in the Debentures.
A1-4
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this
certificate this ___ day of [ ], .
ALBANK CAPITAL TRUST I
By:________________________________
Name:
Administrator
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Capital Securities referred to in
the within-mentioned Declaration.
Dated: [ ]
The Chase Manhattan Bank,
as Property Trustee
By:_________________________
Authorized Officer
A1-5
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Capital Security will be
fixed at a rate per annum of 9.27% (the "Coupon Rate") of the
Liquidation Amount of $1,000 per Capital 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 semi-annual period will bear interest thereon compounded
semi-annually at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement,
in certain limited circumstances the Debenture Issuer will be
required to pay Additional Distributions (as defined in the
Registration Rights Agreement) with respect to the Debentures.
The term "Distributions", as used herein, includes such cash
distributions and any such interest and such Additional
Distributions 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 on hand legally available therefor.
Distributions on the Capital Securities will be
cumulative, will accumulate from the most recent date to which
Distributions have been paid or duly provided for or, if no
Distributions have been paid or duly provided for, from June 6
and will be payable semi-annually in arrears, on June 6 and
December 6 of each year, commencing on December 6, 1997, except
as otherwise described below and in the Declaration.
Distributions will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period of less
than a full calendar month, the number of days elapsed in such
month. As long as no Event of Default (as defined in the
Indenture) has occurred and is continuing, the Debenture Issuer
has the right under the Indenture to defer payment of interest by
extending the interest payment period at any time and from time
to time on the Debentures for a period not exceeding 10
consecutive calendar semi-annual periods, including the first
such semi-annual period during such extension period (each an
"Extension Period"), provided that no Extension Period shall end
on a day other than an interest payment date for the Debentures
or extend beyond the Maturity Date of the Debentures. As a
consequence of such deferral, Distributions will also be
deferred. Notwithstanding such deferral, semi-annual
Distributions will continue to accumulate with interest thereon
(to the extent permitted by applicable law, but not at a rate
exceeding the rate of interest then accruing on the Debentures)
at the Coupon Rate compounded semi-annually during any such
Extension Period. Prior to the expiration of any Extension
Period, the Debenture Issuer may further defer payments of
interest by extending such Extension Period; provided that such
Extension Period, together with all previous and further
extensions, if any, within such Extension Period, may not exceed
10 consecutive semi-annual periods, including the first semi-
A1-6
<PAGE>
annual period during such Extension Period, or extend beyond the
Maturity Date of the Debentures. Payments of Distributions that
have accumulated but not been paid during any Extension Period
will be payable to Holders as they appear on the books and
records of the Trust on the first record date preceding the end
of the Extension Period. Upon the expiration 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.
Subject to obtaining any regulatory approval then
required and to certain other conditions set forth in the
Declaration and the Indenture, the Property Trustee shall, at the
direction of the Sponsor, at any time liquidate the Trust and
cause the Debentures to be distributed to the holders of the
Securities in liquidation of the Trust or, simultaneously with
any redemption of the Debentures, cause a Like Amount of the
Securities to be redeemed by the Trust.
The Capital Securities shall be redeemable as provided
in the Declaration.
A1-7
<PAGE>
_____________________
FORM OF
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Capital Security Certificate to:
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert assignee's social security or tax identification number)
_________________________________________________________________
_________________________________________________________________
_________________________________________________________________
(Insert address and zip code of assignee)
and irrevocably appoints
_________________________________________________________________
_________________________________________________________________
___________________________________________________________ agent
to transfer this Capital 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
Capital 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.
A1-8
<PAGE>
[Include the following if the Capital Security bears a Restricted
Securities Legend --
In connection with any transfer of any of the Capital Securities
evidenced by this certificate, the undersigned confirms that such
Capital Securities are being:
CHECK ONE BOX BELOW
(1) |_| exchanged for the undersigned's own account
without transfer; or
(2) |_| transferred pursuant to and in compliance with
Rule 144A under the Securities Act of 1933; or
(3) |_| transferred pursuant to and in compliance with
Regulation S under the Securities Act of 1933; or
(4) |_| transferred to an institutional "accredited
investor" within the meaning of subparagraph
(a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act of 1933 that is acquiring the
Capital Securities for its own account, or for the
account of such an institutional "accredited
investor," for investment purposes and not with a
view to, or for offer or sale in connection with,
any distribution in violation of the Securities
Act of 1933; or
(5) |_| transferred pursuant to another available
exemption from the registration requirements of
the Securities Act of 1933; or
(6) |_| transferred pursuant to an effective registration
statement.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Capital Securities evidenced by this
certificate in the name of any person other than the registered
Holder thereof; provided, however, that if box (3), (4) or (5) is
checked, the Registrar may require, prior to registering any such
transfer of the Capital Securities such legal opinions,
certifications and other information as the Trust has reasonably
requested to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933, such as
the exemption provided by Rule 144 under such Act; provided,
further, that (i) if box 2 is checked, the transferee must also
certify that it is a qualified institutional buyer as defined in
A1-9
<PAGE>
Rule 144A or (ii) if box (4) is checked, the transferee must also
provide to the Registrar a Transferee Letter of Representation in
the form attached to the Offering Memorandum of the Trust dated
June ___, 1997; provided, further, that after the date that a
Registration Statement has been filed and so long as such
Registration Statement continues to be effective, the Registrar
may only permit transfers for which box (6) has been checked.
_____________________________
Signature
A1-10
<PAGE>
Schedule A*
The initial aggregate liquidation amount of Capital
Securities evidenced by the Certificate to which this Schedule is
attached is $__________ (equivalent to ______ Capital
Securities). The notations on the following table evidence
decreases and increases in the number of Capital Securities
evidenced by such Certificate.
Liquidation
Amount of
Decrease in Increase in Capital
Liquidation Liquidation Securities
Amount of Amount of After such
Capital Capital Decrease or Notation by
Securities Securities Increase Registrar
- ---------- ---------- -------- ---------
* Append to Global Capital Securities only.
A1-11
<PAGE>
EXHIBIT A-2
FORM OF COMMON SECURITY CERTIFICATE
THIS COMMON SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY
STATE SECURITIES LAWS OR ANY OTHER APPLICABLE SECURITIES LAW.
THIS COMMON SECURITY MAY NOT BE TRANSFERRED EXCEPT TO A SUCCESSOR
OF ALBANK FINANCIAL CORPORATION AS OBLIGOR UNDER THE DEBENTURES
OR BY OPERATION OF LAW.
A2-1
<PAGE>
Certificate Number Number of Common Securities
Certificate Evidencing Common Securities
of
ALBANK Capital Trust I
9.27% Common Securities
(Liquidation Amount $1,000 per Common Security)
ALBANK Capital Trust I, a statutory business trust
created under the laws of the State of Delaware (the "Trust"),
hereby certifies that ALBANK Financial Corporation (the "Holder")
is the registered owner of 1,547 common securities of the Trust
representing undivided beneficial interests in the assets of the
Trust designated the 9.27% Common Securities (Liquidation Amount
$1,000 per Common Security) (the "Common Securities"). Except to
the extent provided in the Declaration (as defined below), the
Common Securities are not transferable. The designation, rights,
privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are set
forth herein, on the reverse hereof and in the Amended and
Restated Declaration of Trust of the Trust dated as of June 6,
1997, as the same may be amended from time to time (the
"Declaration"), and shall in all respects be subject to the
provisions thereof including the designation of the terms of the
Common Securities as set forth in Annex I to the Declaration.
Each capitalized term used but not defined herein or in any
legend, form or certificate hereon shall have the meaning given
to it in the Declaration. The Sponsor will provide a copy of the
Declaration, the Common Securities Guarantee and the Indenture
(including any supplemental indenture) to any Holder without
charge upon written request to the Sponsor 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 and
to the benefits of the Common Securities Guarantee to the extent
provided therein.
By its acceptance hereof, the Holder agrees to treat,
for United States federal income tax purposes, the Debentures as
indebtedness and the Common Securities as evidence of indirect
beneficial ownership in the Debentures.
A2-2
<PAGE>
IN WITNESS WHEREOF, the Trust has executed this
certificate this day of [ ], .
ALBANK CAPITAL TRUST I
By:________________________________
Name:
Administrator
A2-3
<PAGE>
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Common Security will be
fixed at a rate per annum of 9.27% (the "Coupon Rate") of the
Liquidation Amount of $1,000 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
semi-annual period will bear interest thereon compounded
semi-annually at the Coupon Rate (to the extent permitted by
applicable law). Pursuant to the Registration Rights Agreement,
in certain limited circumstances the Debenture Issuer will be
required to pay Additional Distributions (as defined in the
Registration Rights Agreement) with respect to the Debentures.
The term "Distributions", as used herein, includes such cash
distributions and any such interest and such Additional
Distributions 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 legally available therefor.
Distributions on the Common Securities will be
cumulative, will accumulate from the most recent date to which
Distributions have been paid or duly provided for or, if no
Distributions have been paid or duly provided for, from June 6,
1997 and will be payable semi-annually in arrears, on June 6 and
December 6 of each year, commencing on December 6, 1997, except
as otherwise described below and in the Declaration.
Distributions will be computed on the basis of a 360-day year
consisting of twelve 30-day months and, for any period less than
a full calendar month, the number of days elapsed in such month.
As long as no Event of Default (as defined herein) has occurred
and is continuing, the Debenture Issuer has the right under the
Indenture to defer payment of interest on the Debentures by
extending the interest payment period at any time and from time
to time for a period not exceeding 10 consecutive calendar
semi-annual periods, including the first such semi-annual period
during such extension period (each an "Extension Period"),
provided that no Extension Period shall end on a day other than
an interest payment date for the Debentures or extend beyond the
Maturity Date of the Debentures. As a consequence of such
deferral, Distributions will also be deferred. Notwithstanding
such deferral, Distributions will continue to accumulate with
interest thereon (to the extent permitted by applicable law, but
not at a rate exceeding the rate of interest then accruing on the
Debentures) at the Coupon Rate compounded semi-annually during
any such Extension Period. Prior to the expiration of any
Extension Period, the Debenture Issuer may further defer payments
of interest by extending such Extension Period; provided that
such Extension Period, together with all previous and further
extensions, if any, within such Extension Period, may not exceed
10 consecutive semi-annual periods, including the first
semi-annual period during such Extension Period, or extend beyond
the Maturity Date of the Debentures. Payments of Distributions
that have accumulated but not been paid during any Extension
Period will be payable to Holders as they appear on the books and
A2-4
<PAGE>
records of the Trust on the first record date preceding the end
of the Extension Period. Upon the expiration 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.
Subject to the Sponsor obtaining any regulatory prior
approval then required and to certain other conditions set forth
in the Declaration and the Indenture, the Property Trustee shall,
at the direction of the Sponsor, at any time liquidate the Trust
and cause the Debentures to be distributed to the holders of the
Securities in liquidation of the Trust or, simultaneous with any
redemption of the Debentures, cause a Like Amount of the
Securities to be redeemed by the Trust.
The Common Securities shall be redeemable as provided
in the Declaration.
A2-5
====================================
SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
ALBANK FINANCIAL CORPORATION
Dated as of June 6, 1997
====================================
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.................. 2
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application................ 6
SECTION 2.2 Lists of Holders of Securities.................. 6
SECTION 2.3 Reports by the Capital Securities
Guarantee Trustee............................... 7
SECTION 2.4 Periodic Reports to Capital Securities
Guarantee Trustee............................... 7
SECTION 2.5 Evidence of Compliance with Conditions
Precedent....................................... 7
SECTION 2.6 Events of Default; Waiver....................... 8
SECTION 2.7 Event of Default; Notice........................ 8
SECTION 2.8 Conflicting Interests........................... 8
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital
Securities Guarantee Trustee.................... 8
SECTION 3.2 Certain Rights of Capital Securities
Guarantee Trustee............................... 11
SECTION 3.3 Not Responsible for Recitals or Issuance
of Series A Capital Securities Guarantee........ 13
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee;
Eligibility..................................... 13
SECTION 4.2 Appointment, Removal and Resignation of
Capital Securities Guarantee Trustee............ 14
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee....................................... 15
SECTION 5.2 Waiver of Notice and Demand..................... 15
SECTION 5.3 Obligations Not Affected........................ 16
SECTION 5.4 Rights of Holders............................... 17
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Page
SECTION 5.5 Guarantee of Payment............................ 17
SECTION 5.6 Subrogation..................................... 17
SECTION 5.7 Independent Obligations......................... 18
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions...................... 18
SECTION 6.2 Ranking......................................... 19
ARTICLE VII
TERMINATION
SECTION 7.1 Termination..................................... 19
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses of Capital
Securities Guarantee Trustee.................... 20
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation..................................... 21
SECTION 9.2 Indemnification................................. 21
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns.......................... 22
SECTION 10.2 Amendments...................................... 22
SECTION 10.3 Notices......................................... 22
SECTION 10.4 Exchange Offer.................................. 23
SECTION 10.5 Benefit......................................... 23
SECTION 10.6 Governing Law................................... 24
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SERIES A CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series A Capital
Securities Guarantee"), dated as of June 6, 1997, is executed and
delivered by ALBANK Financial Corporation, a Delaware corporation
(the "Guarantor"), and The Chase Manhattan Bank, a New York
banking corporation, as indenture trustee (the "Capital
Securities Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Series A Capital
Securities (as defined herein) of ALBANK Capital Trust I, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated
Declaration of Trust (the "Declaration," which expression
includes Annex I and Exhibits A-1, A-2, B, and C thereto), dated
as of June 6, 1997 among the trustees of the Issuer, the
Administrators, the Guarantor, as sponsor, 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 50,000
capital securities, having an aggregate liquidation amount of
$50,000,000, such capital securities being designated the 9.27%
Series A Capital Securities (collectively the "Series A Capital
Securities").
WHEREAS, as incentive for the Holders to purchase the
Series A Capital Securities, the Guarantor desires irrevocably
and unconditionally to agree, to the extent set forth in this
Series A Capital Securities Guarantee, to pay to the Holders the
Guarantee Payments (as defined below). The Guarantor agrees to
make certain other payments on the terms and conditions set forth
herein.
WHEREAS, the Guarantor is executing and delivering a
guarantee agreement (the "Common Securities Guarantee"), with
substantially identical terms to this Series A Capital 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 Declaration) 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 extent and in the manner set forth in
the Common Securities Guarantee, to the rights of holders of
Series A Capital Securities and the Series B Capital Securities
(if any) to receive Guarantee Payments under this Series A
Capital Securities Guarantee and the Series B Capital Securities
Guarantee, as the case may be.
NOW, THEREFORE, in consideration of the purchase by
each Holder, which purchase the Guarantor hereby acknowledges
shall benefit the Guarantor, the Guarantor executes and delivers
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this Series A Capital Securities Guarantee for the benefit of the
Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Series A Capital Securities Guarantee, unless
the context otherwise requires:
(a) capitalized terms used in this Series A Capital
Securities Guarantee but not defined in the
preamble above have the respective meanings
assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date
of execution of this Series A Capital Securities
Guarantee have the same meaning when used in this
Series A Capital Securities Guarantee unless
otherwise defined in this Series A Capital
Securities Guarantee;
(c) a term defined anywhere in this Series A Capital
Securities Guarantee has the same meaning
throughout;
(d) all references to "the Series A Capital
Securities Guarantee" or "this Series A Capital
Securities Guarantee" are to this Series A
Capital Securities Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Series A Capital
Securities Guarantee to Articles and Sections are
to Articles and Sections of this Series A Capital
Securities Guarantee, unless otherwise specified;
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Series A Capital
Securities Guarantee, unless otherwise defined in
this Series A Capital Securities Guarantee or
unless the context otherwise requires; and
(g) a reference to the singular includes the plural
and vice versa.
"Affiliate" has the same meaning as given to that term
in Rule 405 under the Securities Act of 1933, as amended, or any
successor rule thereunder.
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"Business Day" means any day other than a Saturday or
a Sunday, or a day on which banking institutions in The City of
New York or Wilmington, Delaware are authorized or required by
law or executive order to close.
"Capital Securities Guarantee Trustee" means The Chase
Manhattan Bank, a New York banking corporation, until a Successor
Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Series A
Capital Securities Guarantee and thereafter means each such
Successor Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the
Issuer.
"Corporate Trust Office" means the office of the
Capital Securities Guarantee Trustee at which the corporate trust
business of the Capital Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at
the date of execution of this Agreement is located at 450 West
33rd Street, New York, New York 10001.
"Covered Person" means any Holder of Series A Capital
Securities.
"Debentures" means the series of subordinated debt
securities of the Guarantor designated the 9.27% Series A Junior
Subordinated Deferrable Interest Debentures due June 6, 2027 held
by the Property Trustee.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Series A
Capital Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series A
Capital Securities, to the extent not paid or made by the Issuer:
(i) any accumulated and unpaid Distributions required to be paid
on such Series A Capital Securities, to the extent that the
Issuer has funds on hand legally available therefor, (ii) the
applicable redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price")
with respect to any Series A Capital Securities called for
redemption by the Issuer, to the extent that the Issuer has funds
on hand legally available therefor, and (iii) upon a voluntary or
involuntary termination and liquidation of the Issuer (other than
in connection with the distribution of Debentures to the Holders
in exchange for Series A Capital Securities as provided in the
Declaration), the lesser of (a) the aggregate of the Liquidation
Amount and all accumulated and unpaid Distributions on the Series
A Capital Securities to the date of payment, to the extent the
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Issuer has funds on hand legally 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 has
occurred and is continuing, no Guarantee Payments under the
Common Securities Guarantee with respect to the Common Securities
or any guarantee payment under any Other Common Securities
Guarantees shall be made until the Holders shall be paid in full
the Guarantee Payments to which they are entitled under this
Series A Capital Securities Guarantee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Series A Capital
Securities; provided, however, that, in determining whether the
holders of the requisite percentage of Series A Capital
Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"Indemnified Person" means the Capital Securities
Guarantee Trustee, any Affiliate of the Capital Securities
Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees,
custodians or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of June 6,
1997, among the Guarantor (the "Debenture Issuer") and The Chase
Manhattan Bank, as trustee, pursuant to which the Debentures are
to be issued to the Property Trustee of the Issuer.
"Majority in Liquidation Amount of the Series A
Capital Securities" means, except as provided by the Trust
Indenture Act, a vote by Holder(s) of Series A Capital
Securities, voting separately as a class, of more than 50% of the
aggregate Liquidation Amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Series A Capital
Securities.
"Officers' Certificate" means, with respect to any
person, a certificate signed by two of the following: the
Chairman, a Vice Chairman, the Chief Executive Officer, the
President, a Vice President (whether or not designated by a
number or a word or words added before or after such title), the
Comptroller, the Secretary or an Assistant Secretary of the
Guarantor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Series A Capital Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall include:
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(a) a statement that each officer signing the
Officers' Certificate has read the covenant or condition and
the definitions relating thereto;
(b) 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
(c) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied
with.
"Other Common Securities Guarantees" shall have the
same meaning as "Other Guarantees" in the Common Securities
Guarantee.
"Other Debentures" means all junior subordinated
debentures issued by the Guarantor from time to time and sold to
trusts to be established by the Guarantor (if any), in each case
similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to capital securities (if any) similar to
the Series A Capital Securities issued by other trusts to be
established by the Guarantor (if any), in each case similar to
the Issuer.
"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.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 6, 1997, by and among the
Guarantor, the Issuer and the Initial Purchaser named therein as
such agreement may be amended, modified or supplemented from time
to time.
"Responsible Officer" means, with respect to the
Capital Securities Guarantee Trustee, any officer within the
Corporate Trust Office of the Capital Securities Guarantee
Trustee, including any vice president, any assistant vice
president, any secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer, any senior trust
officer or other officer in the Corporate Trust Office of the
Capital Securities Guarantee Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also means, with respect to a particular
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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 Capital Securities Guarantee Trustee" means
a successor Capital Securities Guarantee Trustee possessing the
qualifications to act as Capital Securities 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
Series A Capital Securities and Series B Capital Securities,
collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Series A Capital Securities Guarantee is
subject to the provisions of the Trust Indenture Act that are
required to be part of this Series A Capital Securities Guarantee
in order for this Series A Capital Securities Guarantee to be a
qualified indenture under the Trust Indenture Act and shall, to
the extent applicable, be governed by such provisions; and
(b) if and to the extent that any provision of this
Series A Capital Securities Guarantee limits, qualifies or
conflicts 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 Capital Securities
Guarantee Trustee (unless the Capital Securities Guarantee
Trustee is otherwise the registrar of the Capital Securities) (i)
on a semi-annual basis within 14 days of each regular record date
for the Securities, a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names
and addresses of the Holders of the Series A Capital Securities
as of such record date; and (ii) at such other times as the
Capital Securities Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor, of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished, 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 Capital Securities
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Guarantee Trustee by the Guarantor. The Capital Securities
Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Capital Securities 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 Capital Securities Guarantee
Trustee
Within 60 days after May 15 of each year, commencing
May 15, 1998, the Capital Securities Guarantee Trustee shall
provide to the Holders 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
Capital Securities Guarantee Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee
Trustee
The Guarantor shall provide to the Capital Securities
Guarantee 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, provided that such compliance certificate
shall be delivered on or before 120 days after the end of each
fiscal year of the Guarantor. Delivery of such reports,
information and documents to the Capital Securities Guarantee
Trustee is for informational purposes only and the Capital
Securities Guarantee Trustee's receipt of such shall not
constitute constructive notice of any information contained
therein or determinable from information contained therein,
including the Guarantor's compliance with any of its covenants
hereunder (as to which the Capital Securities Guarantee Trustee
is entitled to rely exclusively on Officers' Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities
Guarantee Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Series A Capital
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 be given by an officer pursuant to Section
314(c)(1) may be given in the form of an Officers' Certificate.
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SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in Liquidation Amount of
Series A Capital Securities may, by vote, on behalf of all of the
Holders, 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 Series A Capital
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 Capital Securities Guarantee Trustee shall,
within 90 days after the occurrence of a default with respect to
this Capital Securities Guarantee, mail by first class postage
prepaid, to all Holders, notices of all defaults actually known
to a Responsible Officer of the Capital Securities Guarantee
Trustee, unless such defaults have been cured before the giving
of such notice, provided, that, except in the case of default in
the payment of any Guarantee Payment, the Capital Securities
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 Responsible
Officer in good faith determines that the withholding of such
notice is in the interests of the Holders.
(b) The Capital Securities Guarantee Trustee shall not
be deemed to have knowledge of any Event of Default unless the
Capital Securities Guarantee Trustee shall have received written
notice from the Guarantor or a Holder, or a Responsible Officer
charged with the administration of the Declaration shall have
obtained actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically
described in this Series A Capital Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities
Guarantee Trustee
(a) This Series A Capital Securities Guarantee shall
be held by the Capital Securities Guarantee Trustee for the
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benefit of the Holders, and the Capital Securities Guarantee
Trustee shall not transfer this Series A Capital Securities
Guarantee to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Capital
Securities Guarantee Trustee on acceptance by such Successor
Capital Securities Guarantee Trustee of its appointment to act as
Successor Capital Securities Guarantee Trustee. The right, title
and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee
Trustee, and such vesting and succession of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Capital Securities Guarantee Trustee
has occurred and is continuing, the Capital Securities Guarantee
Trustee shall enforce this Series A Capital Securities Guarantee
for the benefit of the Holders.
(c) The Capital Securities 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
Series A Capital Securities Guarantee, and no implied covenants
shall be read into this Series A Capital Securities Guarantee
against the Capital Securities 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 Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Series A Capital 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 Series A Capital Securities
Guarantee shall be construed to relieve the Capital Securities
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:
(A) the duties and obligations of the Capital
Securities Guarantee Trustee shall be determined solely
by the express provisions of this Series A Capital
Securities Guarantee, and the Capital Securities
Guarantee Trustee shall not be liable except for the
performance of such duties and obligations as are
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specifically set forth in this Series A Capital
Securities Guarantee, and no implied covenants or
obligations shall be read into this Series A Capital
Securities Guarantee against the Capital Securities
Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Capital Securities Guarantee Trustee, the Capital
Securities 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 Capital Securities
Guarantee Trustee and conforming to the requirements
of this Series A Capital 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 Capital Securities Guarantee Trustee,
the Capital Securities Guarantee Trustee shall be
under a duty to examine the same to determine whether
or not they conform to the requirements of this Series
A Capital Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall
not be liable for any error of judgment made in good faith
by a Responsible Officer thereof, unless it shall be proved
that the Capital Securities Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Capital Securities 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 a Majority in Liquidation
Amount of the Series A Capital Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Capital Securities Guarantee
Trustee, or exercising any trust or power conferred upon
the Capital Securities Guarantee Trustee under this Series
A Capital Securities Guarantee; and
(iv) no provision of this Series A Capital Securities
Guarantee shall require the Capital Securities 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 Capital Securities 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 Series A Capital Securities
Guarantee or indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
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SECTION 3.2 Certain Rights of Capital Securities Guarantee
Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities 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 Series A Capital Securities Guarantee
may be sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Series A
Capital Securities Guarantee, the Capital Securities
Guarantee Trustee shall deem it desirable that a matter be
proved or established before taking, suffering or omitting
any action hereunder, the Capital Securities 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 delivered by
the Guarantor as soon as practicable.
(iv) The Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Series A Capital Securities
Guarantee from any court of competent jurisdiction.
(vi) The Capital Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers
vested in it by this Series A Capital Securities Guarantee
at the request or direction of any Holder, unless such
Holder shall have provided to the Capital Securities
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Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Capital Securities Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Capital Securities
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 Capital Securities
Guarantee Trustee; provided that, nothing contained in this
Section 3.2(a)(vi) shall be taken to relieve the Capital
Securities Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights
and powers vested in it by this Series A Capital Securities
Guarantee.
(vii) The Capital Securities 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 Capital
Securities Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or
matters as it may see fit.
(viii) The Capital Securities 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 Capital
Securities 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 Capital Securities
Guarantee Trustee or its agents hereunder shall bind the
Holders, and the signature of the Capital Securities
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
Capital Securities Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this
Series A Capital Securities Guarantee, both of which shall
be conclusively evidenced by the Capital Securities
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series A
Capital Securities Guarantee the Capital Securities
Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Capital Securities
Guarantee Trustee (i) may request instructions from the
Holders of a Majority in Liquidation Amount of the Series A
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Capital Securities, (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) The Capital Securities Guarantee Trustee shall
not be liable for any action taken, suffered, or omitted to
be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Series A Capital Securities Guarantee.
(b) No provision of this Series A Capital Securities
Guarantee shall be deemed to impose any duty or obligation on the
Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series
A Capital Securities Guarantee
The recitals contained in this Series A Capital
Securities Guarantee shall be taken as the statements of the
Guarantor, and the Capital Securities Guarantee Trustee does not
assume any responsibility for their correctness. The Capital
Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Series A Capital Securities
Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities
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
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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
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 Capital Securities Guarantee
Trustee shall cease to be eligible to so act under Section
4.1(a), the Capital Securities Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or
shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Capital Securities
Guarantee Trustee and Guarantor shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act,
subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee
(a) Subject to Section 4.2(b), the Capital Securities
Guarantee Trustee may be appointed or removed without cause at
any time by the Guarantor except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not
be removed in accordance with Section 4.2(a) until a Successor
Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Capital Securities Guarantee Trustee and delivered to
the Guarantor.
(c) The Capital Securities Guarantee Trustee shall
hold office until a Successor Capital Securities Guarantee
Trustee shall have been appointed or until its removal or
resignation. The Capital Securities Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by
an instrument in writing executed by the Capital Securities
Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such
Successor Capital Securities Guarantee Trustee and delivered to
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the Guarantor and the resigning Capital Securities Guarantee
Trustee.
(d) If no Successor Capital Securities 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 Capital Securities
Guarantee Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor
Capital Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper,
appoint a Successor Capital Securities Guarantee Trustee.
(e) No Capital Securities Guarantee Trustee shall be
liable for the acts or omissions to act of any Successor Capital
Securities Guarantee Trustee.
(f) Upon termination of this Series A Capital
Securities Guarantee or removal or resignation of the Capital
Securities Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Capital Securities Guarantee Trustee
all amounts due to the Capital Securities Guarantee Trustee
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 Series A Capital 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
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.
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SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of
the Guarantor under this Series A Capital 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 Series A Capital 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 Series A Capital Securities or the extension of
time for the performance of any other obligation under, arising
out of, or in connection with, the Series A Capital 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 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 Series A Capital 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
Series A Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred;
(g) the consummation of the Exchange Offer (as defined
in the Registration Rights Agreement); or
(h) 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 with respect to the Guarantee
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Payments 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 Series A Capital Securities have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Capital Securities Guarantee Trustee in
respect of this Series A Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital
Securities Guarantee Trustee under this Series A Capital
Securities Guarantee provided, that, subject to Section 3.1, the
Capital Securities Guarantee Trustee shall have the right to
decline to follow any such direction if the Capital Securities
Guarantee Trustee shall determine that the action so directed
would be unjustly prejudicial to the holders not taking part in
such direction or if the Capital Securities Guarantee Trustee
being advised by counsel determines that the action or proceeding
so directed may not lawfully be taken or if the Capital
Securities Guarantee Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee
of directors or trustees and/or Responsible Officers shall
determine that the action or proceeding so directed would involve
the Capital Securities Guarantee Trustee in personal liability.
(b) If the Capital Securities Guarantee Trustee fails
to enforce such Series A Capital Securities Guarantee, any Holder
may institute a legal proceeding directly against the Guarantor
to enforce the Capital Securities Guarantee Trustee's rights
under this Series A Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Capital
Securities 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 Series A Capital 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 against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Series A
Capital Securities Guarantee; provided, however, that the
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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 Series A Capital Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid
under this Series A Capital 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 Series A Capital Securities, and that the
Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Series A
Capital Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (h), inclusive,
of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding,
the Guarantor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's
capital stock (which includes common and preferred stock), (ii)
make any payment of principal, interest or premium, if any, with
respect to or repay, repurchase or redeem any debt securities of
the Guarantor (including any Other Debentures) that rank pari
passu with or junior in right of payment to the Debentures or
(iii) make any guarantee payments with respect to any guarantee
by the Guarantor of the debt securities of any subsidiary of the
Guarantor (including Other Guarantees) if such guarantee ranks
pari passu with or junior in right of payment to the Debentures
(other than (a) dividends or distributions in shares of or
options, warrants or rights to subscribe for or purchase shares
of, common stock of the Guarantor, (b) any declaration of a
dividend in connection with the implementation of a stockholders'
rights plan, or the issuance of stock under any such plan in the
future, or the redemption or repurchase of any such rights
pursuant thereto, (c) payments under the Capital Securities
Guarantee, (d) as a result of a reclassification of the
Guarantor's capital stock or the exchange or the conversion of
one class or series of the Guarantor's capital stock for another
class or series of the Guarantor's capital stock, (e) the
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purchase of fractional interests in shares of the Guarantor's
capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's
benefit plans for its directors, officers or employees or any of
the Guarantor's dividend reinvestment plans) if at such time (i)
there shall have occurred any event of which the Guarantor has
actual knowledge that (a) is, or with the giving of notice or the
lapse of time, or both, would be an Event of Default and (b) in
respect of which the Guarantor shall not have taken reasonable
steps to cure, (ii) if such Debentures are held by the Property
Trustee, the Guarantor shall be in default with respect to its
payment of any obligations under this Series A Capital Securities
Guarantee or (iii) the Guarantor shall have given notice of its
election of the exercise of its right to extend the interest
payment period pursuant to Section 16.01 of the Indenture and any
such extension shall be continuing.
SECTION 6.2 Ranking
This Series A Capital Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) in the same manner
that the Debentures are subordinated to all Senior Indebtedness
pursuant to the Indenture (except as indicated below), it being
understood that the terms of Article XV of the Indenture shall
apply to the obligations of the Guarantor under this Series A
Capital Securities Guarantee as if (x) such Article XV were set
forth herein in full and (y) such obligations were substituted
for the term "Securities" appearing in such Article XV, except
that with respect to Section 15.03 of the Indenture only, the
term "Senior Indebtedness" shall mean all liabilities of the
Guarantor, whether or not for money borrowed (other than
obligations in respect of Other Guarantees), (ii) pari passu with
the most senior preferred or preference stock now or hereafter
issued by the Guarantor and with any Other Guarantee (as defined
herein) and any Other Common Securities Guarantee and 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 Series A Capital Securities Guarantee shall
terminate (i) upon full payment of the Redemption Price (as
defined in the Declaration) of all Series A Capital Securities,
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or (ii) upon liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Declaration or the
distribution of the Debentures to all of the Holders or (iii)
upon exchange of all the Series A Capital Securities for the
Series B Capital Securities in the Exchange Offer and the
execution and delivery of the Series B Capital Securities
Guarantee. Notwithstanding the foregoing, this Series A Capital
Securities Guarantee will continue to be effective or will be
reinstated, as the case may be, if at any time any Holder must
restore payment of any sums paid under the Series A Capital
Securities or under this Series A Capital Securities Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses of Capital Securities
Guarantee Trustee
The Guarantor covenants and agrees to pay to the Capital
Securities Guarantee Trustee from time to time, and the Capital
Securities Guarantee Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the
Guarantor and the Capital Securities Guarantee Trustee (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Guarantor
will pay or reimburse the Capital Securities Guarantee Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred by or made by the Capital Securities Guarantee
Trustee in accordance with any of the provisions of this Capital
Securities Guarantee (including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. The Guarantor also covenants to indemnify each of the
Capital Securities Guarantee Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including
taxes (other than taxes based on the income of the Capital
Securities Guarantee Trustee) incurred without negligence or bad
faith on the part of the Capital Securities Guarantee Trustee and
arising out of or in connection with the acceptance or
administration of this guarantee, including the costs and
expenses of defending itself against any claim or liability in
the premises. The obligations of the Guarantor under this Article
VIII to compensate and indemnify the Capital Securities Guarantee
Trustee and to pay or reimburse the Capital Securities Guarantee
Trustee for expenses, disbursements and advances shall be secured
by a lien prior to that of the Series A Capital Securities upon
all property and funds held or collected by the Capital
Securities Guarantee Trustee as such, except funds held
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in trust for the benefit of the holders of particular Series A
Capital Securities.
The provisions of this Article shall survive the
termination of this Capital Securities Guarantee.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 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 Series A Capital
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 Series A Capital
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 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
Series A Capital Securities might properly be paid.
SECTION 9.2 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 Series A Capital Securities
Guarantee.
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ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
All guarantees and agreements contained in this Series
A Capital 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 Series A
Capital Securities then outstanding.
SECTION 10.2 Amendments
Except with respect to any changes that do not
materially adversely affect the rights of Holders (in which case
no consent of Holders will be required), this Series A Capital
Securities Guarantee may only be amended with the prior approval
of the Holders of a Majority in Liquidation Amount of the Series
A Capital Securities (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). The provisions of the Declaration
with respect to consents to amendments (whether at a meeting or
otherwise) shall apply to the giving of such approval.
SECTION 10.3 Notices
All notices provided for in this Series A Capital
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 Issuer, in care of the
Administrators at the Issuer's mailing address set forth below
(or such other address as the Issuer may give notice of to the
Holders and the Capital Securities Guarantee Trustee):
ALBANK Capital Trust I
c/o ALBANK Financial Corporation
10 North Pearl Street
Albany, NY 12207
Attention: Freling H. Smith
Telecopy: (212) 445-2140
(b) If given to the Capital Securities Guarantee
Trustee, at the Capital Securities Guarantee Trustee's mailing
address set forth below (or such other address as the Capital
Securities Guarantee Trustee may give notice of to the Holders):
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The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee
Administration Department
Telecopy: (212) 946-8159/8160
(c) 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 and the Capital
Securities Guarantee Trustee):
ALBANK Financial Corporation
10 North Pearl Street
Albany, NY 12207
Attention: Freling H. Smith
Telecopy: (518) 445-2140
(d) If given to any Holder, 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 10.4 Exchange Offer
In the event an Exchange Offer Registration Statement
(as defined in the Registration Rights Agreement) becomes
effective and the Issuer issues any Series B Capital Securities
in the Exchange Offer, the Guarantor will enter into a new
capital securities guarantee agreement, in substantially the same
form as this Series A Capital Securities Guarantee, with respect
to the Series B Capital Securities. The Holders of the Series A
Capital Securities by their acceptance thereof will be deemed to
have agreed to be bound by the provisions of the Registration
Rights Agreement.
SECTION 10.5 Benefit
This Series A Capital Securities Guarantee is solely
for the benefit of the Holders and, subject to Section 3.1(a), is
not separately transferable from the Series A Capital Securities.
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SECTION 10.6 Governing Law
THIS SERIES A CAPITAL 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.
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THIS SERIES A CAPITAL SECURITIES GUARANTEE is executed
as of the day and year first above written.
ALBANK FINANCIAL CORPORATION,
as Guarantor
By: /s/ Richard J. Heller
-----------------------------------
Name: Richard J. Heller
Title: Executive Vice President
and Chief Financial Officer
The Chase Manhattan Bank, as Capital
Securities Guarantee Trustee
By: /s/ Gregory P. Shea
-----------------------------------
Name: Gregory P. Shea
Title: Senior Trust Officer
====================================
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
ALBANK FINANCIAL CORPORATION
Dated as of _________ __, 1997
====================================
<PAGE>
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series B Capital
Securities Guarantee"), dated as of ______ __, 1997, is executed
and delivered by ALBANK Financial Corporation, a Delaware
corporation (the "Guarantor"), and The Chase Manhattan Bank, a
New York banking corporation, as indenture trustee (the "Capital
Securities Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Series B Capital
Securities (as defined herein) of ALBANK Capital Trust I, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated
Declaration of Trust (the "Declaration," which expression
includes Annex I and Exhibits A-1, A-2, B and C thereto), dated
as of June 6, 1997 among the trustees of the Issuer, the
Administrators, the Guarantor, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of
the Issuer, the Issuer issued on June 6, 1997, 50,000 capital
securities, having an aggregate liquidation amount of
$50,000,000, such capital securities being designated the 9.27%
Series A Capital Securities (collectively the "Series A Capital
Securities").
WHEREAS, as incentive for the holders of the Series A
Capital Securities to purchase the Series A Capital Securities,
the Guarantor irrevocably and unconditionally agreed, to the
extent set forth in the Series A Capital Securities Guarantee,
dated as of June 6, 1997 (the "Series A Capital Securities
Guarantee"), to pay to the holders of the Series A Capital
Securities the Guarantee Payments (as defined in the Series A
Capital Securities Guarantee) and to make certain other payments
on the terms and conditions set forth therein.
WHEREAS, the Guarantor also executed and delivered a
guarantee agreement (the "Common Securities Guarantee"), with
substantially identical terms to the Series A Capital 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 Declaration) 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 extent and in the manner set forth in
the Common Securities Guarantee, to the rights of holders of
Series A Capital Securities to receive Guarantee Payments (as
defined in the Series A Capital Securities Guarantee) and the
rights of holders of Series B Capital Securities to receive
Guarantee Payments under this Series B Capital Securities
Guarantee.
WHEREAS, pursuant to the Registration Rights Agreement
(as defined in the Declaration), the Trust has offered to
exchange up to $50,000,000 aggregate liquidation amount of its
9.27% Series B Capital Securities (the "Series B Capital
Securities" and, together with the Series A Capital Securities,
the "Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act") for a
like liquidation amount of its outstanding Series A Capital
Securities (the "Exchange Offer").
<PAGE>
WHEREAS, pursuant to the Exchange Offer, the Guarantor
and the Capital Securities Guarantee Trustee wish to exchange the
Series A Capital Securities Guarantee with respect to any and all
Series A Capital Securities validly tendered to the Issuer
pursuant to the Exchange Offer for this Series B Capital
Securities Guarantee, which is substantially the same as the
Series A Capital Securities Guarantee, except that it has been
registered under the Securities Act and qualified under the Trust
Indenture Act, and which is for the benefit of the Holders of the
Series B Capital Securities.
WHEREAS, as incentive for the holders of Series A
Capital Securities to participate in the Exchange Offer (which
exchange the Guarantor acknowledges shall benefit the Guarantor),
the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Series B Capital Securities
Guarantee, to pay to the holders of the Series B Capital
Securities the Guarantee Payments (as defined below) and to make
certain other payments on the terms and conditions set forth
therein.
NOW, THEREFORE, in consideration of the premises, the
Guarantor executes and delivers this Series B Capital Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Series B Capital Securities Guarantee, unless
the context otherwise requires:
(a) capitalized terms used in this Series B Capital
Securities Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of
execution of this Series B Capital Securities Guarantee have the
same meaning when used in this Series B Capital Securities
Guarantee unless otherwise defined in this Series B Capital
Securities Guarantee;
(c) a term defined anywhere in this Series B Capital
Securities Guarantee has the same meaning throughout;
(d) all references to "the Series B Capital Securities
Guarantee" or "this Series B Capital Securities Guarantee" are to
this Series B Capital Securities Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Series B Capital Securities
Guarantee to Articles and Sections are to Articles and Sections
of this Series B Capital Securities Guarantee, unless otherwise
specified;
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(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Series B Capital Securities
Guarantee, unless otherwise defined in this Series B Capital
Securities Guarantee or unless the context otherwise requires;
and
(g) a reference to the singular includes the plural
and vice versa.
"Affiliate" has the same meaning as given to that term
in Rule 405 under the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Business Day" means any day other than a Saturday or
a Sunday, or a day on which banking institutions in The City of
New York or Wilmington, Delaware are authorized or required by
law or executive order to close.
"Capital Securities Guarantee Trustee" means The Chase
Manhattan Bank, a New York banking corporation, until a Successor
Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Series B
Capital Securities Guarantee and thereafter means each such
Successor Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the
Issuer.
"Corporate Trust Office" means the office of the
Capital Securities Guarantee Trustee at which the corporate trust
business of the Capital Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at
the date of execution of this Agreement is located at 450 West
33rd Street, New York, New York 10001.
"Covered Person" means any Holder of Series B Capital
Securities.
"Debentures" means the series of subordinated debt
securities of the Guarantor designated the 9.27% Series B Junior
Subordinated Deferrable Interest Debentures due June 6, 2027 held
by the Property Trustee.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Series B
Capital Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series B
Capital Securities, to the extent not paid or made by the Issuer:
(i) any accumulated and unpaid Distributions required to be paid
on such Series B Capital Securities, to the extent that the
Issuer has funds on hand legally available therefor, (ii) the
applicable redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price")
with respect to any Series B Capital Securities called for
redemption by the Issuer, to the extent that the Issuer has funds
on hand legally available therefor, and (iii) upon a voluntary or
involuntary termination and liquidation of the Issuer
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(other than in connection with the distribution of
Debentures to the Holders in exchange for Series B Capital
Securities as provided in the Declaration), the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and
unpaid Distributions on the Series B Capital Securities to the
date of payment, to the extent the Issuer has funds on hand
legally 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 has occurred and is
continuing, no Guarantee Payments under the Common Securities
Guarantee with respect to the Common Securities or any guarantee
payment under any Other Common Securities Guarantees shall be
made until the Holders shall be paid in full the Guarantee
Payments to which they are entitled under this Series B Capital
Securities Guarantee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Series B Capital
Securities; provided, however, that, in determining whether the
holders of the requisite percentage of Series B Capital
Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"Indemnified Person" means the Capital Securities
Guarantee Trustee, any Affiliate of the Capital Securities
Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees,
custodians or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of June 6,
1997, among the Guarantor (the "Debenture Issuer") and The Chase
Manhattan Bank, as trustee, pursuant to which the Debentures are
to be issued to the Property Trustee of the Issuer.
"Majority in Liquidation Amount of the Series B
Capital Securities" means, except as provided by the Trust
Indenture Act, a vote by Holder(s) of Series B Capital
Securities, voting separately as a class, of more than 50% of the
aggregate Liquidation Amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Series B Capital
Securities.
"Officers' Certificate" means, with respect to any
person, a certificate signed by two of the following: the
Chairman, a Vice Chairman, the Chief Executive Officer, the
President, a Vice President (whether or not designated by a
number or a word or words added before or after such title), the
Comptroller, the Secretary or an Assistant Secretary of the
Guarantor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Series B Capital Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
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(b) 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
(c) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the
same meaning as "Other Guarantees" in the Common Securities
Guarantee.
"Other Debentures" means all junior subordinated
debentures issued by the Guarantor from time to time and sold to
trusts to be established by the Guarantor (if any), in each case
similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to capital securities (if any) similar to
the Series B Capital Securities issued by other trusts to be
established by the Guarantor (if any), in each case similar to
the Issuer.
"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.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 6, 1997, by and among the
Guarantor, the Issuer and the Initial Purchaser named therein as
such agreement may be amended, modified or supplemented from time
to time.
"Responsible Officer" means, with respect to the
Capital Securities Guarantee Trustee, any officer within the
Corporate Trust Office of the Capital Securities Guarantee
Trustee, including any vice president, any assistant vice
president, any secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer, any senior trust
officer or other officer in the Corporate Trust Office of the
Capital Securities 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 Capital Securities Guarantee Trustee" means
a successor Capital Securities Guarantee Trustee possessing the
qualifications to act as Capital Securities Guarantee Trustee
under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
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"Trust Securities" means the Common Securities and the
Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Series B Capital Securities Guarantee is
subject to the provisions of the Trust Indenture Act that are
required to be part of this Series B Capital Securities Guarantee
in order for this Series B Capital Securities Guarantee to be a
qualified indenture under the Trust Indenture Act and shall, to
the extent applicable, be governed by such provisions;
(b) this Series B Capital Securities Guarantee has
been qualified under the Trust Indenture Act; and
(c) if and to the extent that any provision of this
Series B Capital Securities Guarantee limits, qualifies or
conflicts 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 Capital Securities
Guarantee Trustee (unless the Capital Securities Guarantee
Trustee is otherwise the registrar of the Capital Securities) (i)
on a semi-annual basis within 14 days of each regular record date
for the Capital Securities, a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names
and addresses of the Holders of the Series B Capital Securities
as of such record date; and (ii) at such other times as the
Capital Securities Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished, 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 Capital Securities
Guarantee Trustee by the Guarantor. The Capital Securities
Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall
comply with its obligations under Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
Within 60 days after May 15 of each year, commencing
May 15, 1998, the Capital Securities Guarantee Trustee shall
provide to the Holders such reports as are required
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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
Capital Securities Guarantee Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee
Trustee
The Guarantor shall provide to the Capital Securities
Guarantee Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (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, provided that
such compliance certificate shall be delivered on or before 120
days after the end of each fiscal year of the Guarantor. Delivery
of such reports, information and documents to the Capital
Securities Guarantee Trustee is for informational purposes only
and the Capital Securities Guarantee Trustee's receipt of such
shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Capital Securities Guarantee
Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities
Guarantee Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Series B Capital
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 be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act 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
Series B Capital Securities may, by vote, on behalf of all of the
Holders, 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 Series B Capital
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 Capital Securities Guarantee Trustee shall,
within 90 days after the occurrence of a default with respect to
this Capital Securities Guarantee, mail by first class postage
prepaid, to all Holders, notices of all defaults actually known
to a Responsible Officer of the Capital Securities Guarantee
Trustee, unless such defaults have been cured before the giving
of such notice, provided, that, except in the case of default in
the payment of any Guarantee Payment, the Capital Securities
Guarantee Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust
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committee of directors and/or Responsible Officer in good faith
determines that the withholding of such notice is in the interests
of the Holders.
(b) The Capital Securities Guarantee Trustee shall not
be deemed to have knowledge of any Event of Default unless the
Capital Securities Guarantee Trustee shall have received written
notice from the Guarantor or a Holder, or a Responsible Officer
charged with the administration of the Declaration shall have
obtained actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically
described in this Series B Capital Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee
Trustee
(a) This Series B Capital Securities Guarantee shall
be held by the Capital Securities Guarantee Trustee for the
benefit of the Holders, and the Capital Securities Guarantee
Trustee shall not transfer this Series B Capital Securities
Guarantee to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Capital
Securities Guarantee Trustee on acceptance by such Successor
Capital Securities Guarantee Trustee of its appointment to act as
Successor Capital Securities Guarantee Trustee. The right, title
and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee
Trustee, and such vesting and succession of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Capital Securities Guarantee Trustee
has occurred and is continuing, the Capital Securities Guarantee
Trustee shall enforce this Series B Capital Securities Guarantee
for the benefit of the Holders.
(c) The Capital Securities 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
Series B Capital Securities Guarantee, and no implied covenants
shall be read into this Series B Capital Securities Guarantee
against the Capital Securities 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 Capital Securities Guarantee Trustee, the
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Capital Securities Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Series B Capital 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 Series B Capital Securities
Guarantee shall be construed to relieve the Capital Securities
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:
(A) the duties and obligations of the Capital
Securities Guarantee Trustee shall be determined
solely by the express provisions of this Series B
Capital Securities Guarantee, and the Capital
Securities Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Series B Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this
Series B Capital Securities Guarantee against the
Capital Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Capital Securities Guarantee Trustee, the Capital
Securities 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 Capital Securities
Guarantee Trustee and conforming to the requirements
of this Series B Capital 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 Capital Securities Guarantee Trustee,
the Capital Securities Guarantee Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Series B Capital
Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall
not be liable for any error of judgment made in good faith
by a Responsible Officer thereof, unless it shall be proved
that the Capital Securities Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Capital Securities 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 a Majority in Liquidation
Amount of the Series B Capital Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Capital Securities Guarantee
Trustee, or exercising any trust or power conferred upon
the Capital Securities Guarantee Trustee under this Series
B Capital Securities Guarantee; and
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(iv) no provision of this Series B Capital Securities
Guarantee shall require the Capital Securities 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 Capital Securities 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 Series B Capital Securities
Guarantee or indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities 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 Series B Capital Securities Guarantee
may be sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Series B
Capital Securities Guarantee, the Capital Securities
Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Capital Securities
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 delivered by the Guarantor as soon as practicable.
(iv) The Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Series B Capital Securities
Guarantee from any court of competent jurisdiction.
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(vi) The Capital Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers
vested in it by this Series B Capital Securities Guarantee
at the request or direction of any Holder, unless such
Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Capital Securities Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Capital Securities
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 Capital Securities
Guarantee Trustee; provided that, nothing contained in this
Section 3.2(a)(vi) shall be taken to relieve the Capital
Securities Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights
and powers vested in it by this Series B Capital Securities
Guarantee.
(vii) The Capital Securities 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 Capital
Securities Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or
matters as it may see fit.
(viii) The Capital Securities 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 Capital
Securities 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 Capital Securities
Guarantee Trustee or its agents hereunder shall bind the
Holders, and the signature of the Capital Securities
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
Capital Securities Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this
Series B Capital Securities Guarantee, both of which shall
be conclusively evidenced by the Capital Securities
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series B
Capital Securities Guarantee the Capital Securities
Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Capital
Securities Guarantee Trustee (i) may request instructions
from the Holders of a Majority in Liquidation Amount of the
Series B Capital Securities, (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.
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(xi) The Capital Securities Guarantee Trustee shall
not be liable for any action taken, suffered, or omitted to
be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Series B Capital Securities Guarantee.
(b) No provision of this Series B Capital Securities
Guarantee shall be deemed to impose any duty or obligation on the
Capital Securities 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 Capital Securities 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 Capital Securities Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series B
Capital Securities Guarantee
The recitals contained in this Series B Capital
Securities Guarantee shall be taken as the statements of the
Guarantor, and the Capital Securities Guarantee Trustee does not
assume any responsibility for their correctness. The Capital
Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Series B Capital Securities
Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities
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 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
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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 Capital Securities Guarantee
Trustee shall cease to be eligible to so act under Section
4.1(a), the Capital Securities Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or
shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Capital Securities
Guarantee Trustee and Guarantor shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act,
subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee
(a) Subject to Section 4.2(b), the Capital Securities
Guarantee Trustee may be appointed or removed without cause at
any time by the Guarantor except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not
be removed in accordance with Section 4.2(a) until a Successor
Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Capital Securities Guarantee Trustee and delivered to
the Guarantor.
(c) The Capital Securities Guarantee Trustee shall
hold office until a Successor Capital Securities Guarantee
Trustee shall have been appointed or until its removal or
resignation. The Capital Securities Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by
an instrument in writing executed by the Capital Securities
Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such
Successor Capital Securities Guarantee Trustee and delivered to
the Guarantor and the resigning Capital Securities Guarantee
Trustee.
(d) If no Successor Capital Securities 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 Capital Securities
Guarantee Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor
Capital Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper,
appoint a Successor Capital Securities Guarantee Trustee.
(e) No Capital Securities Guarantee Trustee shall be
liable for the acts or omissions to act of any Successor Capital
Securities Guarantee Trustee.
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(f) Upon termination of this Series B Capital
Securities Guarantee or removal or resignation of the Capital
Securities Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Capital Securities Guarantee Trustee
all amounts due to the Capital Securities Guarantee Trustee
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 Series B Capital 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
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 Series B Capital 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 Series B Capital 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 Series B Capital Securities or the extension of
time for the performance of any other obligation under, arising
out of, or in connection with, the Series B Capital Securities
(other than an extension of time for payment of Distributions,
Redemption Price,
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Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on 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 Series B Capital Securities, or any
action on the part of the Issuer granting indulgence or extension
of any kind;
(d) 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
Series B Capital 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 with respect to the Guarantee
Payments 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 Series B Capital Securities have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Capital Securities Guarantee Trustee in
respect of this Series B Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital
Securities Guarantee Trustee under this Series B Capital
Securities Guarantee, provided that, subject to Section 3.1, the
Capital Securities Guarantee Trustee shall have the right to
decline to follow any such direction if the Capital Securities
Guarantee Trustee shall determine that the action so directed
would be unjustly prejudicial to the holders not taking part in
such direction or if the Capital Securities Guarantee Trustee
being advised by counsel determines that the action or proceeding
so directed may not lawfully be taken or if the Capital
Securities Guarantee Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee
of directors or trustees and/or Responsible Officers shall
determine that the action or proceeding so directed would involve
the Capital Securities Guarantee Trustee in personal liability.
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(b) If the Capital Securities Guarantee Trustee fails
to enforce such Series B Capital Securities Guarantee, any Holder
may institute a legal proceeding directly against the Guarantor
to enforce the Capital Securities Guarantee Trustee's rights
under this Series B Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Capital
Securities 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 Series B Capital 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 against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Series B
Capital 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 Series B Capital Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid
under this Series B Capital 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 Series B Capital Securities, and that the
Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Series B
Capital 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 Capital Securities remain outstanding,
the Guarantor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's
capital stock (which includes common and preferred stock), (ii)
make any payment of principal, interest or premium, if any,
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<PAGE>
with respect to or repay, repurchase or redeem any debt
securities of the Guarantor (including any Other Debentures)
that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to
any guarantee by the Guarantor of the debt securities of any
subsidiary of the Guarantor (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to
the Debentures (other than (a) dividends or distributions in
shares of or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any
declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under the Capital
Securities Guarantee, (d) as a result of a reclassification of
the Guarantor's capital stock or the exchange or the conversion
of one class or series of the Guarantor's capital stock for
another class or series of the Guarantor's capital stock, (e) the
purchase of fractional interests in shares of the Guarantor's
capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's
benefit plans for its directors, officers or employees or any of
the Guarantor's dividend reinvestment plans) if at such time (i)
there shall have occurred any event of which the Guarantor has
actual knowledge that (a) is, or with the giving of notice or the
lapse of time, or both, would be an Event of Default and (b) in
respect of which the Guarantor shall not have taken reasonable
steps to cure, (ii) if such Debentures are held by the Property
Trustee, the Guarantor shall be in default with respect to its
payment of any obligations under this Series B Capital Securities
Guarantee or (iii) the Guarantor shall have given notice of its
election of the exercise of its right to extend the interest
payment period pursuant to Section 16.01 of the Indenture and any
such extension shall be continuing.
SECTION 6.2 Ranking
This Series B Capital Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) in the same manner
that the Debentures are subordinated to all Senior Indebtedness
pursuant to the Indenture (except as indicated below), it being
understood that the terms of Article XV of the Indenture shall
apply to the obligations of the Guarantor under this Series B
Capital Securities Guarantee as if (x) such Article XV were set
forth herein in full and (y) such obligations were substituted
for the term "Securities" appearing in such Article XV, except
that with respect to Section 15.03 of the Indenture only, the
term "Senior Indebtedness" shall mean all liabilities of the
Guarantor, whether or not for money borrowed (other than
obligations in respect of Other Guarantees), (ii) pari passu with
the most senior preferred or preference stock now or hereafter
issued by the Guarantor and with any Other Guarantee (as defined
herein) and any Other Common Securities Guarantee and 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.
18
<PAGE>
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Series B Capital Securities Guarantee shall
terminate (i) upon full payment of the Redemption Price (as
defined in the Declaration) of all Series B Capital Securities,
or (ii) upon liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Declaration or the
distribution of the Debentures to all of the Holders.
Notwithstanding the foregoing, this Series B Capital Securities
Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment
of any sums paid under the Series B Capital Securities or under
this Series B Capital Securities Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses of Capital Securities
Guarantee Trustee
The Guarantor covenants and agrees to pay to the
Capital Securities Guarantee Trustee from time to time, and the
Capital Securities Guarantee Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the
Guarantor and the Capital Securities Guarantee Trustee (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Guarantor
will pay or reimburse the Capital Securities Guarantee Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred by or made by the Capital Securities Guarantee
Trustee in accordance with any of the provisions of this Capital
Securities Guarantee (including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. The Guarantor also covenants to indemnify each of the
Capital Securities Guarantee Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including
taxes (other than taxes based on the income of the Capital
Securities Guarantee Trustee) incurred without negligence or bad
faith on the part of the Capital Securities Guarantee Trustee and
arising out of or in connection with the acceptance or
administration of this guarantee, including the costs and
expenses of defending itself against any claim or liability in
the premises. The obligations of the Guarantor under this Article
VIII to compensate and indemnify the Capital Securities Guarantee
Trustee and to pay or reimburse the Capital Securities Guarantee
Trustee for expenses, disbursements and advances shall be secured
by a lien prior to that of the Series B Capital Securities upon all
property and funds held or collected by the Capital Securities
Guarantee Trustee as such, except funds held in trust for the
benefit of the holders of particular Series B Capital Securities.
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The provisions of this Article shall survive the
termination of this Capital Securities Guarantee.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 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 Series B Capital
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 Series B Capital
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 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
Series B Capital Securities might properly be paid.
SECTION 9.2 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 9.2
shall survive the termination of this Series B Capital Securities
Guarantee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
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All guarantees and agreements contained in this Series
B Capital 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 Series B
Capital Securities then outstanding.
SECTION 10.2 Amendments
Except with respect to any changes that do not
materially adversely affect the rights of Holders (in which case
no consent of Holders will be required), this Series B Capital
Securities Guarantee may only be amended with the prior approval
of the Holders of a Majority in Liquidation Amount of the Series
B Capital Securities (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). The provisions of the Declaration
with respect to consents to amendments (whether at a meeting or
otherwise) shall apply to the giving of such approval.
SECTION 10.3 Notices
All notices provided for in this Series B Capital
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 Issuer, in care of the
Administrators at the Issuer's mailing address set forth below
(or such other address as the Issuer may give notice of to the
Holders and the Capital Securities Guarantee Trustee):
ALBANK Capital Trust I
c/o ALBANK Financial Corporation
10 North Pearl Street
Albany, NY 12207
Attention: Freling H. Smith
Telecopy: (212) 445-2140
(b) If given to the Capital Securities Guarantee
Trustee, at the Capital Securities Guarantee Trustee's mailing
address set forth below (or such other address as the Capital
Securities Guarantee Trustee may give notice of to the Holders):
The Chase Manhattan Bank
450 West 33rd Street
New York, New York 10001
Attention: Corporate Trustee
Administration Department
Telecopy: (212) 946-8159/8160
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<PAGE>
(c) 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 and the Capital
Securities Guarantee Trustee):
ALBANK Financial Corporation
10 North Pearl Street
Albany, NY 12207
Attention: Freling H. Smith
Telecopy: (518) 445-2140
(d) If given to any Holder, 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 10.4 Benefit
This Series B Capital Securities Guarantee is solely
for the benefit of the Holders and, subject to Section 3.1(a), is
not separately transferable from the Series B Capital Securities.
SECTION 10.5 Governing Law
THIS SERIES B CAPITAL 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.
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<PAGE>
THIS SERIES B CAPITAL SECURITIES GUARANTEE is executed
as of the day and year first above written.
ALBANK FINANCIAL CORPORATION,
as Guarantor
By: ______________________________
Name: Richard J. Heller
Title: Executive Vice President
and Chief Financial Officer
The Chase Manhattan Bank, as Capital
Securities Guarantee Trustee
By: ______________________________
Name:
Title:
81022
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.......................3
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.....................7
SECTION 2.2 Lists of Holders of Securities.......................7
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee..7
SECTION 2.4 Periodic Reports to Capital Securities Guarantee
Trustee..............................................8
SECTION 2.5 Evidence of Compliance with Conditions Precedent.....8
SECTION 2.6 Events of Default; Waiver............................8
SECTION 2.7 Event of Default; Notice.............................8
SECTION 2.8 Conflicting Interests................................9
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL SECURITIES GUARANTEE
TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities
Guarantee Trustee....................................9
SECTION 3.2 Certain Rights of Capital Securities Guarantee
Trustee.............................................11
SECTION 3.3 Not Responsible for Recitals or Issuance of
Series B Capital Securities Guarantee...............13
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility...13
SECTION 4.2 Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee........................14
<PAGE>
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee...........................................15
SECTION 5.2 Waiver of Notice and Demand.........................15
SECTION 5.3 Obligations Not Affected............................15
SECTION 5.4 Rights of Holders...................................16
SECTION 5.5 Guarantee of Payment................................17
SECTION 5.6 Subrogation.........................................17
SECTION 5.7 Independent Obligations.............................17
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions..........................17
SECTION 6.2 Ranking.............................................18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.........................................19
ARTICLE VIII
COMPENSATION AND EXPENSES OF CAPITAL SECURITIES GUARANTEE
TRUSTEE
SECTION 8.1 Compensation and Expenses of Capital Securities
Guarantee Trustee...................................19
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation.........................................20
SECTION 9.2 Indemnification.....................................20
ARTICLE X
<PAGE>
MISCELLANEOUS
SECTION 10.1 Successors and Assigns..............................20
SECTION 10.2 Amendments..........................................21
SECTION 10.3 Notices.............................................21
SECTION 10.4 Benefit.............................................22
SECTION 10.5 Governing Law.......................................22
<PAGE>
=================================================================
REGISTRATION RIGHTS AGREEMENT
Dated June 6, 1997
among
ALBANK FINANCIAL CORPORATION
ALBANK CAPITAL TRUST I
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Initial Purchaser
=================================================================
<PAGE>
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement")
is made and entered into as of June 6, 1997 among ALBANK
FINANCIAL CORPORATION, a Delaware corporation (the "Company"),
ALBANK CAPITAL TRUST I, a statutory business trust created under
the laws of the state of Delaware (the "Trust"), and MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED (the "Initial
Purchaser").
This Agreement is made in connection with the Purchase
Agreement dated June 4, 1997 the "Purchase Agreement"), among the
Company, as issuer of the 9.27% Series A Junior Subordinated
Deferrable Interest Debentures due June 6, 2027 (the
"Subordinated Debentures"), the Trust and the Initial Purchaser,
which provides for among other things, the sale by the Trust to
the Initial Purchaser of 50,000 of the Trust's 9.27% Series A
Capital Securities, liquidation amount $1,000 per Capital
Security (the "Capital Securities") the proceeds of which will be
used by the Trust to purchase Subordinated Debentures. The
Capital Securities, together with the Subordinated Debentures and
the Company's guarantee of the Capital Securities (the "Capital
Securities Guarantee") are collectively referred to as the
"Securities". In order to induce the Initial Purchaser to enter
into the Purchase Agreement, the Company and the Trust have
agreed to provide to the Initial Purchaser and its direct and
indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto
agree as follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following
meanings:
"Additional Distributions" shall have the meaning set forth
in Section 2(e) hereof.
"Advice" shall have the meaning set forth in the last
paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth in
Section 3(t) hereof.
"Business Day" shall mean a day that is not a Saturday, a
Sunday, or a day on which banking institutions in New York, New
York or Wilmington, Delaware are authorized or required to be
closed.
<PAGE>
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble
to this Agreement and also includes the Company's successors and
permitted assigns.
"Declaration" or "Declaration of Trust" shall mean the
Amended and Restated Declaration of Trust, dated as of June 6,
1997, among the trustees named therein, the Company as sponsor
and the Holders, from time to time, of the Trust Securities.
"Depository" shall mean The Depository Trust Company, or
any other depositary appointed by the Trust; provided, however,
that such depositary must have an address in the Borough of
Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time, or any successor legislation
and the rules and regulations promulgated thereunder.
"Exchange Offer" shall mean the offer by the Company and
the Trust to the Holders to exchange all of the Registrable
Securities (other than Private Exchange Securities) for a like
principal or liquidation amount, as applicable, of Exchange
Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration
under the Securities Act effected pursuant to Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in
Section 2(a) hereof.
"Exchange Securities" shall mean (i) with respect to the
Subordinated Debentures, the 9.27% Series B Junior Subordinated
Deferrable Interest Debentures due June 6, 2027 (the "Exchange
Debentures") containing terms identical to the Subordinated
Debentures (except that they will not contain terms with respect
to the transfer restrictions under the Securities Act and will
not provide for any increase in the interest rate thereon), (ii)
with respect to the Capital Securities, the Trust's 9.27%
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<PAGE>
Series B Capital Securities, liquidation amount $1,000 per
Capital Security (the "Exchange Capital Securities") which will
have terms identical to the Capital Securities (except they will
not contain terms with respect to transfer restrictions under the
Securities Act and will not provide for any increase in the
Distribution rate thereon) and (iii) with respect to the Capital
Securities Guarantee, the Company's guarantee (the "Exchange
Capital Securities Guarantee") of the Exchange Capital Securities
which will have terms identical to the Capital Securities
Guarantee.
"Holder" shall mean the Initial Purchaser, for so long as
it owns any Registrable Securities, and its successors, assigns
and direct and indirect transferees who become registered owners
of Registrable Securities under the Indenture or Declaration of
Trust.
"Indenture" shall mean the Indenture relating to the
Subordinated Debentures and the Exchange Debentures dated as of
June 6, 1997 among the Company, as issuer, and The Chase
Manhattan Bank, as trustee, as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the
preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section
3(n) hereof.
"Issue Date" shall mean the date of original issuance of the
Securities.
"Majority Holders" shall mean the Holders of a majority of
the aggregate liquidation amount of outstanding Capital
Securities.
"Participating Broker-Dealer" shall have the meaning set
forth in Section 3(t) hereof.
"Person" shall mean 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.
"Private Exchange" shall have the meaning set forth in
Section 2(a) hereof.
"Private Exchange Securities" shall have the meaning set
forth in Section 2(a) hereof.
3
<PAGE>
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to a prospectus, including
posteffective amendments, and in each case including all material
incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean the Securities and, if
issued, the Private Exchange Securities; provided, however, that
Securities or Private Exchange Securities, as the case may be,
shall cease to be Registrable Securities when (i) a Registration
Statement with respect to such Securities or Private Exchange
Securities for the exchange or resale thereof, as the case may
be, shall have been declared effective under the Securities Act
and such Securities or Private Exchange Securities, as the case
may be, shall have been disposed of pursuant to such Registration
Statement, (ii) such Securities or Private Exchange Securities,
as the case may be, shall have been sold to the public pursuant
to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) such Securities or
Private Exchange Securities, as the case may be, shall have
ceased to be outstanding or (iv) with respect to the Securities,
such Securities have been exchanged for Exchange Securities upon
consummation of the Exchange Offer and are thereafter freely
tradeable by the holder thereof (other than an affiliate of the
Company).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC or National
Association of Securities Dealers, Inc. (the "NASD") registration
and filing fees, including, if applicable, the fees and expenses
of any "qualified independent underwriter" (and its counsel) that
is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the
NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or blue sky laws (including
reasonable fees and disbursements of counsel for any underwriters
or Holders in connection with blue sky qualification of any of
the Exchange Securities or Registrable Securities) and compliance
with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing
and distributing any Registration Statement, any Prospectus and
4
<PAGE>
any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent
certified public accountants of the Company, including the
expenses of any "cold comfort" letters required by or incident to
such performance and compliance, (vi) the fees and expenses of
the Trustee, and any exchange agent or custodian, (vii) all fees
and expenses incurred in connection with the listing, if any, of
any of the Registrable Securities on any securities exchange or
exchanges, and (viii) the reasonable fees and expenses of any
special experts retained by the Company in connection with any
Registration Statement.
"Registration Statement" shall mean any registration
statement of the Company and the Trust which covers any of the
Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Rule 144(k) Period" shall mean the period of two years (or
such shorter period as may hereafter be referred to in Rule
144(k) under the Securities Act (or similar successor rule))
commencing on the Issue Date.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the
preamble to this Agreement.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth
in Section 2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set
forth in Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Trust pursuant to
the provisions of Section 2(b) hereof which covers all of the
Registrable Securities or all of the Private Exchange Securities,
as the case may be, on an appropriate form under Rule 415 under
5
<PAGE>
the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"TIA" shall have the meaning set forth in Section 3(1)
hereof.
"Trustees" shall mean any and all trustees with respect to
(i) the Capital Securities under the Declaration, (ii) the
Subordinated Debentures under the Indenture and (iii) the Capital
Securities Guarantee.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by
any applicable law or applicable interpretation of the staff of
the SEC, the Company and the Trust shall, for the benefit of the
Holders, at the Company's cost, use their reasonable best efforts
to (i) cause to be filed with the SEC within 180 days after June
6, 1997, an Exchange Offer Registration Statement on an
appropriate form under the Securities Act covering the Exchange
Offer, (ii) cause such Exchange Offer Registration Statement to
be declared effective under the Securities Act by the SEC not
later than the date which is 215 days after June 6, 1997, (iii)
commence the Exchange Offer promptly after effectiveness of the
Exchange Offer Registration Statement and (iv) keep such Exchange
Offer Registration Statement effective for not less than 20
Business Days (or longer if required by applicable law) after the
date notice of the Exchange Offer is mailed to the Holders. Upon
the effectiveness of the Exchange Offer Registration Statement,
the Company and the Trust shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable
each Holder eligible and electing to exchange Registrable
Securities for a like principal amount of Exchange Debentures or
a like liquidation amount of Exchange Capital Securities,
together with the Exchange Guarantee, as applicable (assuming
that such Holder is not an affiliate of the Company within the
meaning of Rule 405 under the Securities Act and is not a
broker-dealer tendering Registrable Securities acquired directly
from the Company for its own account, acquires the Exchange
Securities in the ordinary course of such Holder's business and
has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of a public
distribution of the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and under
state securities or blue sky laws.
In connection with the Exchange Offer, the Company and
the Trust shall:
6
<PAGE>
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with
an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a
period of not less than 20 Business Days after the date notice
thereof is mailed to the Holders (or longer if required by
applicable law) (such period referred to herein as the "Exchange
Period");
(iii) utilize the services of the Depository for the
Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York City time, on the
last Business Day of the Exchange Period, by sending to the
institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Securities delivered for exchange, and a
statement that such Holder is withdrawing his election to have
such Securities exchanged;
(v) notify each Holder that any Security not tendered by
such Holder in the Exchange Offer will remain outstanding and
continue to accrue interest or accumulate distributions, as the
case may be, but will not retain any rights under this Agreement
(except in the case of the Initial Purchaser and Participating
Broker-Dealers as provided herein); and
(vi) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
If the Initial Purchaser determines upon advice of its
outside counsel that it is not eligible to participate in the
Exchange Offer with respect to the exchange of Securities
constituting any portion of an unsold allotment in the initial
distribution, as soon as practicable upon receipt by the Company
and the Trust of a written request from the Initial Purchaser,
the Company and the Trust, as applicable, shall issue and deliver
to the Initial Purchaser in exchange (the "Private Exchange") for
the Securities held by the Initial Purchaser, a like liquidation
amount of Capital Securities of the Trust, together with the
Exchange Guarantee, or a like principal amount of the
Subordinated Debentures of the Company, as applicable, that are
identical (except that such securities may bear a customary
legend with respect to restrictions on transfer pursuant to the
Securities Act) to the Exchange Securities (the "Private Exchange
Securities") and which are issued pursuant to the Indenture, the
Declaration or the Guarantee (which provides that the Exchange
Securities will not be subject to the transfer restrictions set
forth in the Indenture or the Declaration, as applicable, and
that the Exchange Securities, the Private Exchange Securities and
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the Securities will vote and consent together on all matters as
one class and that neither the Exchange Securities, the Private
Exchange Securities nor the Securities will have the right to
vote or consent as a separate class on any matter). The Private
Exchange Securities shall be of the same series as the Exchange
Securities and the Company and the Trust will seek to cause the
CUSIP Service Bureau to issue the same CUSIP Numbers for the
Private Exchange Securities as for the Exchange Securities issued
pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer and, if applicable, the Private Exchange, the Company and
the Trust, as the case requires, shall:
(i) accept for exchange all Securities or portions thereof
tendered and not validly withdrawn pursuant to the Exchange Offer
or the Private Exchange;
(ii) deliver, or cause to be delivered, to the applicable
Trustee for cancellation all Securities or portions thereof so
accepted for exchange by the Company; and
(iii) issue, and cause the applicable Trustee under the
Indenture, the Declaration or the Guarantee, as applicable, to
promptly authenticate and deliver to each Holder, new Exchange
Securities or Private Exchange Securities, as applicable, equal
in principal amount to the principal amount of the Subordinated
Debentures or equal in liquidation amount to the liquidation
amount to the Capital Securities (together with the guarantee
thereof) as are surrendered by such Holder.
Distributions as defined in the Declaration on each
Exchange Capital Security and interest on each Exchange Debenture
and Private Exchange Security issued pursuant to the Exchange
Offer and in the Private Exchange will accumulate or accrue, as
the case may be, from the last date on which a Distribution or
interest was paid on the Capital Security or the Subordinated
Debenture surrendered in exchange therefore or, if no
Distribution or interest has been paid on such Capital Security
or Subordinated Debenture, from the Issue Date. To the extent not
prohibited by any law or applicable interpretation of the staff
of the SEC, the Company and the Trust shall use their reasonable
best efforts to complete the Exchange Offer as provided above,
and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in
connection with the Exchange Offer. The Exchange Offer shall not
be subject to any conditions, other than that the Exchange Offer
does not violate applicable law or any applicable interpretation
of the staff of the SEC. Each Holder of Registrable Securities
who wishes to exchange such Registrable Securities for Exchange
Securities in the Exchange Offer will be required to make certain
customary representations in connection
8
<PAGE>
therewith, including, in the case of any Holder of Capital
Securities, representations that (i) it is not an affiliate of
the Trust or the Company within the meaning of the Securities
Act, (ii) the Exchange Securities to be received by it were
acquired in the ordinary course of its business and (iii) at the
time of the Exchange Offer, it has no arrangement with any person
to participate in a public distribution (within the meaning of
the Securities Act) of the Exchange Capital Securities. The
Company and the Trust shall inform the Initial Purchaser, after
consultation with the Trustee, of the names and addresses of the
Holders to whom the Exchange Offer is made, and the Initial
Purchaser shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the
Exchange Offer.
Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall
continue to apply, mutatis mutandis, solely with respect to
Registrable Securities that are Private Exchange Securities and
Exchange Securities held by Participating Broker-Dealers, and the
Company and the Trust shall have no further obligation to
register the Registrable Securities (other than Private Exchange
Securities) pursuant to Section 2(b) of this Agreement.
(b) Shelf Registration. In the event that (i) the
Company, the Trust or the Majority Holders reasonably determine,
after conferring with counsel (which may be in-house counsel),
that the Exchange Offer Registration provided in Section 2(a)
above is not available because of any change in law or in
currently prevailing interpretations of the staff of the SEC,
(ii) the Exchange Offer Registration Statement is not declared
effective within 215 days of June 6, 1997, (iii) a Tax
Contingency shall have occurred or (iv) upon the request of the
Initial Purchaser with respect to any Registrable Securities held
by it, if the Initial Purchaser is not permitted, in the
reasonable opinion of Brown & Wood LLP, pursuant to applicable
law or applicable interpretations of the staff of the SEC, to
participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the
Securities Act and applicable blue sky or state securities laws
(any of the events specified in (i)-(iv) being a "Shelf
Registration Event" and the date of occurrence thereof, the
"Shelf Registration Event Date"), the Company and the Trust
shall, at their cost, use their reasonable best efforts to cause
to be filed as promptly as practicable after such Shelf
Registration Event Date, as the case may be, and, in any event,
within 45 days after such Shelf Registration Event Date (which
shall be no earlier than 150 days after the Closing Time), a
Shelf Registration Statement providing for the sale by the
Holders of all of the Registrable Securities other than, in the
case of subclause (iii) of this Section 2(b), Holders who have
tendered their Registrable Securities pursuant to Section 2(a)
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<PAGE>
above, and shall use their reasonable best efforts to have such
Shelf Registration Statement declared effective by the SEC as
soon as practicable. No Holder of Registrable Securities shall be
entitled to include any of its Registrable Securities in any
Shelf Registration pursuant to this Agreement unless and until
such Holder agrees in writing to be bound by all of the
provisions of this Agreement applicable to such Holder and
furnishes to the Company and the Trust in writing, within 15 days
after receipt of a request therefor, such information as the
Company and the Trust may, after conferring with counsel with
regard to information relating to Holders that would be required
by the SEC to be included in such Shelf Registration Statement or
Prospectus included therein, reasonably request for inclusion in
any Shelf Registration Statement or Prospectus included therein.
Each Holder as to which any Shelf Registration is being effected
agrees to furnish to the Company and the Trust all information
with respect to such Holder necessary to make the information
previously furnished to the Company by such Holder not materially
misleading.
In addition, the Company and the Trust may, in lieu of
filing an Exchange Offer Registration Statement, file a Shelf
Registration Statement if the Company receives an opinion of
legal counsel that, as a result of the consummation of the
Exchange Offer, there is more than an insubstantial risk that (x)
the Trust would be subject to United States federal income tax
with respect to income received or accrued on the Subordinated
Debentures or the Exchange Debentures, (y) interest payable by
the Company on such Subordinated Debentures or the Exchange
Debentures would not be deductible by the Company, in whole or in
part, for United States federal income tax purposes, or (z) the
Trust would be subject to more than a de minimis amount of other
taxes, duties or governmental charges, receipt of such opinion
being a "Tax Contingency".
The Company and the Trust agree to use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective for the Rule 144(k) Period (subject to
extension pursuant to the last paragraph of Section 3 hereof) or
for such shorter period which will terminate when all of the
Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding (the "Effectiveness
Period"). The Company and the Trust shall not permit any
securities other than Registrable Securities to be included in
the Shelf Registration. The Company and the Trust will, in the
event a Shelf Registration Statement is declared effective,
provide to each Holder a reasonable number of copies of the
Prospectus which is a part of the Shelf Registration Statement,
notify each such Holder when the Shelf Registration has become
effective and use its best efforts to take certain other actions
as are required to permit certain unrestricted resales of the
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<PAGE>
Registrable Securities. The Company and the Trust further agree,
if necessary, to supplement or amend the Shelf Registration
Statement, if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such
Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations,
and the Company and the Trust agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section
2(a) or 2(b) hereof and will reimburse the Initial Purchaser for
the reasonable fees and disbursements of Brown & Wood LLP,
counsel for the Initial Purchaser, incurred in connection with
the Exchange Offer and, if applicable, the Private Exchange
Offer, and either Brown & Wood LLP or any one other counsel
designated in writing by the Majority Holders to act as counsel
for the Holders of the Registrable Securities in connection with
a Shelf Registration Statement, which other counsel shall be
reasonably satisfactory to the Company. Except as provided
herein, each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes if any,
relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange
Offer Registration Statement pursuant to Section 2(a) hereof or a
Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been
declared effective by the SEC; provided, however, that if, after
it has been declared effective, the offering of Registrable
Securities pursuant to a Shelf Registration Statement is
interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court,
such Registration Statement will be deemed not to have been
effective during the period of such interference, until the
offering of Registrable Securities pursuant to such Registration
Statement may legally resume. The Company and the Trust will be
deemed not to have used their reasonable best efforts to cause
the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to
remain, effective during the requisite period if either of them
voluntarily takes any action that would result in any such
Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able
to exchange or offer and sell such Registrable Securities during
that period unless such action is required by applicable law.
(e) Additional Distributions. In the event that
(i) (A) neither the Exchange Offer Registration Statement nor a
Shelf Registration Statement is filed with the SEC on or prior to
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<PAGE>
the 180th day (or the 210th day, in the event of a Tax
Contingency) after June 6, 1997 or (B) notwithstanding that the
Company and the Trust have accepted for exchange or will accept
for exchange the Subordinated Debentures, the Capital Securities
and the Capital Securities Guarantee for, respectively, the
Exchange Debentures, the Exchange Capital Securities and the
Exchange Capital Securities Guarantee, the Company and the Trust
are required to file a Shelf Registration Statement and such
Shelf Registration Statement is not filed on or prior to the date
required by Section 2(b) hereof, then commencing on the day after
the applicable required filing date, additional interest shall
accrue on the principal amount of the Subordinated Debentures,
and additional Distributions shall accumulate on the liquidation
amount of the Capital Securities, each at a rate of .50% per
annum; or
(ii) (A) neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by the
SEC on or prior to the 35th day after the applicable required
filing date or (B) notwithstanding that the Company and the Trust
have accepted for exchange the Subordinated Debentures, the
Capital Securities and the Capital Securities Guarantee for,
respectively, the Exchange Debentures, the Exchange Capital
Securities and the Exchange Capital Securities Guarantee, the
Company and the Trust are required to file a Shelf Registration
Statement and such Shelf Registration Statement is not declared
effective by the SEC on or prior to the 35th day after the date
such Shelf Registration Statement was required to be filed, then,
commencing on the 36th day after the applicable required filing
date, additional interest shall accrue on the principal amount of
the Subordinated Debentures, and additional Distributions shall
accumulate on the liquidation amount of the Capital Securities,
each at a rate of .50% per annum; or
(iii) (A) the Trust has not accepted for exchange all
validly tendered Capital Securities for Exchange Capital
Securities or the Company has not accepted for exchange the
Capital Securities Guarantee and all Subordinated Debentures for
the Exchange Guarantee and Exchange Debentures respectively, in
accordance with the terms of the Exchange Offer on or prior to
the 35th day after the date on which the Exchange Offer
Registration Statement was declared effective or (B) if
applicable, the Shelf Registration Statement has been declared
effective and such Shelf Registration Statement ceases to be
effective at any time prior to the expiration of the Rule 144(k)
Period (other than after such time as all Capital Securities have
been disposed of thereunder or otherwise cease to be Registrable
Securities), then additional interest shall accrue on the
principal amount of Subordinated Debentures, and additional
Distributions shall accumulate on the liquidation amount of the
Capital Securities, each at a rate of .50% per annum commencing
on (x) the 36th day after such effective date, in the case of
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<PAGE>
(A) above, or (y) the day such Shelf Registration Statement
ceases to be effective in the case of (B) above;
provided, however, that neither the additional interest rate on
the Subordinated Debentures, nor the additional distribution rate
on the liquidation amount of the Capital Securities, may exceed
in the aggregate .50% per annum; provided, further, however, that
(1) upon the filing of the Exchange Offer Registration Statement
or a Shelf Registration Statement (in the case of clause (i)
above), (2) upon the effectiveness of the Exchange Offer
Registration Statement or a Shelf Registration Statement (in the
case of clause (ii) above), or (3) upon the acceptance for
exchange of all validly tendered Capital Securities, the
Guarantee and Subordinated Debentures for all Exchange Capital
Securities, the Exchange Capital Securities Guarantees and
Exchange Debentures (in the case of clause (iii)(A) above), or
upon the effectiveness of the Shelf Registration Statement which
had ceased to remain effective or the completion of the Rule
144(k) period (in the case of clause (iii)(B) above), additional
interest on the Subordinated Debentures, and additional
Distributions on the liquidation amount of the Capital Securities
as a result of such clause (or the relevant subclause thereof),
as the case may be, shall cease to accrue or accumulate, as the
case may be.
Any amounts of additional interest and additional
Distributions due pursuant to Section 2(e)(i), (ii) or (iii)
above (the "Additional Distributions") will be payable in cash on
June 6 and December 6 of each year to the holders of record on
the 15th day prior to the relevant payment date.
3. Registration Procedures. In connection with the
obligations of the Company and the Trust with respect to the
Registration Statements pursuant to Sections 2(a) and 2(b)
hereof, the Company and the Trust shall use their reasonable best
efforts to:
(a) prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by
Sections 2(a) and 2(b) hereof within the relevant time
period specified in Section 2 hereof on the appropriate
form under the Securities Act, which form (i) shall be
selected by the Company and the Trust, (ii) shall, in the
case of a Shelf Registration, be available for the sale of
the Registrable Securities by the selling Holders thereof
and (iii) shall comply as to form in all material respects
with the requirements of the applicable form and include
all financial statements required by the SEC to be filed
therewith; and use its reasonable best efforts to cause
such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof; provided,
however, that if (1) such filing is pursuant to Section
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2(b), or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the
Company and the Trust shall furnish to and afford the
Holders of the Registrable Securities and each such
Participating Broker-Dealer, as the case may be, covered by
such Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any
documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed. The Company and the
Trust shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto in
respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document
if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as
may be necessary to keep such Registration Statement
effective for the Effectiveness Period or the Applicable
Period, as the case may be; and cause each Prospectus to be
supplemented, if so determined by the Company or the Trust
or requested by the SEC, by any required prospectus
supplement and as so supplemented to be filed pursuant to
Rule 424 (or any similar provision then in force) under the
Securities Act, and comply with the provisions of the
Securities Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with
respect to the disposition of all securities covered by
each Registration Statement during the Effectiveness Period
or the Applicable Period, as the case may be, in accordance
with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement
(including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities included in the Shelf
Registration Statement, at least three Business Days prior
to filing, that a Shelf Registration Statement with respect
to the Registrable Securities is being filed and advising
such Holder that the distribution of Registrable Securities
will be made in accordance with the method selected by the
Majority Holders; and (ii) furnish to each Holder of
Registrable Securities included in the Shelf Registration
Statement and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge,
14
<PAGE>
as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate
the public sale or other disposition of the Registrable
Securities; and (iii) consent to the use of the Prospectus
or any amendment or supplement thereto by each of the
selling Holders of Registrable Securities included in the
Shelf Registration Statement in connection with the
offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use their
reasonable best efforts to register or qualify the
Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the
time the applicable Registration Statement is declared
effective by the SEC as any Holder of Registrable
Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable
Securities shall reasonably request in writing in advance
of such date of effectiveness, and do any and all other
acts and things which may be reasonably necessary or
advisable to enable such Holder and underwriter to
consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided,
however, that the Company and the Trust shall not be
required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d);
(ii) file any general consent to service of process in any
jurisdiction where it would not otherwise be subject to
such service of process or (iii) subject itself to taxation
in any such jurisdiction if it is not then so subject;
(e) in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers from whom the Company or the
Trust has received prior written notice that they will be
utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof,
are seeking to sell Exchange Securities and are required to
deliver Prospectuses, notify each Holder of Registrable
Securities, or such Participating Broker-Dealers, as the
case may be, their counsel and the managing underwriters,
if any, promptly and promptly confirm such notice in
writing (i) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request
by the SEC or any state securities authority for amendments
and supplements to a Registration Statement or Prospectus
or for additional information after the Registration
Statement has become effective, (iii) of the issuance by
the SEC or any state
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securities authority of any stop order suspending the
effectiveness of a Registration Statement or the
qualification of the Registrable Securities or the Exchange
Securities to be offered or sold by any Participating
Broker-Dealer in any jurisdiction described in paragraph
3(d) hereof or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and
the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company
and the Trust contained in any purchase agreement,
securities sales agreement or other similar agreement, if
any cease to be true and correct in all material respects,
and (v) of the happening of any event or the failure of any
event to occur or the discovery of any facts or otherwise,
during the Effectiveness Period which makes any statement
made in such Registration Statement or the related
Prospectus untrue in any material respect or which causes
such Registration Statement or Prospectus to omit to state
a material fact necessary to make the statements therein,
in the light of the circumstances under which they were
made, not misleading, and (vi) the Company and the Trust's
reasonable determination that a post-effective amendment to
the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement at the earliest possible moment;
(g) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities included within the
coverage of such Shelf Registration Statement, without
charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto,
unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
and not bearing any restrictive legends and in such
denominations (consistent with the provisions of the
Indenture and the Declaration) and registered in such names
as the selling Holders or the underwriters may reasonably
request at least two Business Days prior to the closing of
any sale of Registrable Securities pursuant to such Shelf
Registration Statement;
(i) in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
16
<PAGE>
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, use its reasonable best efforts to prepare
a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document
incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus
will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading; and to notify each
Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each
Holder hereby agrees to suspend use of the Prospectus until
the Company has amended or supplemented the Prospectus to
correct such misstatement or omission;
(j) in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be
incorporated by reference into a Registration Statement or
a Prospectus after the initial filing of a Registration
Statement, provide a reasonable number of copies of such
document to the Holders; and make such of the
representatives of the Company and the Trust as shall be
reasonably requested by the Holders of Registrable
Securities or the Initial Purchaser on behalf of such
Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Capital
Securities and the Capital Securities (and if the Trust has
made a distribution of the Subordinated Debentures to the
Holders of the Capital Securities, the Subordinated
Debentures or the Exchange Subordinated Debentures), as the
case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with
printed certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form
eligible for deposit with the Depository;
(l) cause the Indenture, the Declaration, the
Guarantee and the Exchange Guarantee to be qualified under
the Trust Indenture Act of 1939 (the "TIA") in connection
with the registration of the Exchange Securities or
Registrable Securities, as the case may be, and effect such
changes to such documents as may be required for them to be
so qualified in accordance with the terms of the TIA and
execute, and use its reasonable best efforts to cause the
relevant trustee to execute, all documents as may be
required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such
documents to be so qualified in a timely manner;
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<PAGE>
(m) in the case of a Shelf Registration, enter into
such agreements (including underwriting agreements) as are
customary in underwritten offerings and take all such other
appropriate actions as are reasonably requested in order to
expedite or facilitate the registration or the disposition
of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten
registration, if requested by (x) the Initial Purchaser, in
the case where the Initial Purchaser holds Securities
acquired by it as part of its initial distribution and (y)
other Holders of Securities covered thereby: (i) make such
representations and warranties to Holders of such
Registrable Securities and the underwriters (if any), with
respect to the business of the Trust, the Company and its
subsidiaries as then conducted and the Registration
Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Company
and the Trust and updates thereof (which may be in the form
of a reliance letter) in form and substance reasonably
satisfactory to the managing underwriters (if any) and the
Holders of a majority in principal amount of the
Registrable Securities being sold, addressed to each
selling Holder and the underwriters (if any) covering the
matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such underwriters (it being agreed
that the matters to be covered by such opinion may be
subject to customary qualifications and exceptions); (iii)
obtain "cold comfort" letters and updates thereof in form
and substance reasonably satisfactory to the managing
underwriters from the independent certified public
accountants of the Company and the Trust (and, if
necessary, any other independent certified public
accountants of any subsidiary of the Company and the Trust
or of any business acquired by the Company and the Trust
for which financial statements and financial data are, or
are required to be, included in the Registration
Statement), addressed to each of the underwriters, such
letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other
matters as reasonably requested by such underwriters in
accordance with Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to Holders
of a majority in aggregate principal amount of Registrable
Securities covered by such
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Registration Statement and the managing underwriters or
agents) with respect to all parties to be indemnified
pursuant to said Section (including, without limitation,
such underwriters and selling Holders). The above shall be
done at each closing under such underwriting agreement, or
as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2(a)
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange
Securities during the Applicable Period, make reasonably
available for inspection by any selling Holder of such
Registrable Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of
Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the
case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during
reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Trust,
the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them
to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the
Trust, the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by
any such Inspector in connection with such Registration
Statement provided, however, that the foregoing inspection
and information gathering shall be coordinated on behalf of
the Purchasers by the Initial Purchaser and on behalf of
the other parties, by one counsel designated by the Initial
Purchaser and on behalf of such other parties as described
in Section 2(c) hereof. Records which the Company and the
Trust determine, in good faith, to be confidential and any
records which it notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct
a material misstatement or omission in such Registration
Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with
any action, suit or proceeding or (iii) the information in
such Records has been made generally available to the
public without and not in breach of an obligation of
confidentiality. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will
be required to agree in writing that information obtained
by it as a result of such inspections shall be deemed
confidential and shall not be
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used by it as the basis for any market transactions in the
securities of the Trust or the Company unless and until
such is made generally available to the public. Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further
agree in writing that it will, upon learning that
disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and
allow the Company at its expense to undertake appropriate
action to prevent disclosure of the Records deemed
confidential;
(o) comply with all applicable rules and regulations
of the SEC so long as any provision of this Agreement shall
be applicable and make generally available to its
securityholders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or
best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which
statements shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a
Private Exchange, if requested by a Trustee, obtain an
opinion of counsel to the Company addressed to the Trustee
for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer or the Private
Exchange, as the case may be, and which includes an opinion
that (i) the Company and the Trust, as the case requires,
has duly authorized, executed and delivered the Exchange
Securities and Private Exchange Securities, and (ii) each
of the Exchange Securities or the Private Exchange
Securities, as the case may be, constitute a legal, valid
and binding obligation of the Company or the Trust, as the
case requires, enforceable against the Company or the
Trust, as the case requires, in accordance with its
respective terms (in each case, with customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Securities
by Holders to the Company or the Trust, as applicable (or
to such other Person as directed by the Company or the
Trust, respectively), in exchange for the Exchange
Securities or the Private Exchange Securities, as the case
may be, the Company or the Trust, as applicable, shall
mark, or cause to be marked, on such Registrable Securities
delivered by such
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Holders that such Registrable Securities are being
cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no
event shall such Registrable Securities be marked as paid
or otherwise satisfied;
(r) cooperate with each seller of Registrable
Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of
such Registrable Securities and their respective counsel in
connection with any filings required to be made with the
NASD;
(s) use its reasonable best efforts to take all other
steps necessary to effect the registration of the
Registrable Securities covered by a Registration Statement
contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution", which
section shall be reasonably acceptable to the Initial
Purchaser or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement
of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of
any broker-dealer (a "Participating Broker-Dealer") that
holds Registrable Securities acquired for its own account
as a result of market-making activities or other trading
activities and that will be the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have
been publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the
Initial Purchaser or such other representative, represent
the prevailing views of the staff of the SEC, including a
statement that any such broker-dealer who receives Exchange
Securities for Registrable Securities pursuant to the
Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of such
Exchange Securities, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice
referred to in Section 3(e), without charge, as many copies
of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as
such Participating Broker-Dealer may reasonably request
(each of the Company and the Trust hereby consents to the
use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement
thereto by any
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<PAGE>
Person subject to the prospectus delivery requirements of
the Securities Act, including all Participating
Broker-Dealers, in connection with the sale or transfer of
the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto), (iii) use its reasonable
best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities
Act for such period of time as such Persons must comply
with such requirements under the Securities Act and
applicable rules and regulations in order to resell the
Exchange Securities; provided, however, that such period
shall not be required to exceed 90 days (or such longer
period if extended pursuant to the last sentence of Section
3 hereof) (the "Applicable Period"), and (iv) include in
the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in
the Exchange Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as
a result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with
any resale of Exchange Securities received in respect
of such Registrable Securities pursuant to the
Exchange Offer";
and (y) a statement to the effect that by a broker-dealer
making the acknowledgment described in clause (x) and by
delivering a Prospectus in connection with the exchange of
Registrable Securities, the broker-dealer will not be
deemed to admit that it is an underwriter within the
meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration
Statement, the Company and the Trust agree to deliver to
the Initial Purchaser or to another representative of the
Participating Broker-Dealers, if requested by the Initial
Purchaser or such other representative of the Participating
Broker-Dealers, on behalf of the Participating
Broker-Dealers upon consummation of the Exchange Offer (i)
an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchaser or such other
representative of the Participating Broker-Dealers,
covering the matters customarily covered in opinions
requested in connection with Exchange Offer Registration
Statements and such other matters as may be reasonably
requested (it being
22
<PAGE>
agreed that the matters to be covered by such opinion may
be subject to customary qualifications and exceptions),
(ii) an officers' certificate containing certifications
substantially similar to those set forth in Section 5(g) of
the Purchase Agreement and such additional certifications
as are customarily delivered in a public offering of debt
securities and (iii) as well as upon the effectiveness of
the Exchange Offer Registration Statement, a comfort
letter, in each case, in customary form if permitted by
Statement on Auditing Standards No. 72.
The Company or the Trust may require each seller of
Registrable Securities as to which any registration is being
effected to furnish to the Company or the Trust, as applicable,
such information regarding such seller as may be required by the
staff of the SEC to be included in a Registration Statement. The
Company or the Trust may exclude from such registration the
Registrable Securities of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving
such request. The Company shall have no obligation to register
under the Securities Act the Registrable Securities of a seller
who so fails to furnish such information.
In the case of (1) a Shelf Registration Statement or
(2) Participating Broker-Dealers who have notified the Company
and the Trust that they will be utilizing the Prospectus
contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell Exchange
Securities and are required to deliver the Prospectus each Holder
agrees that, upon receipt of any notice from the Company or the
Trust of the happening of any event of the kind described in
Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(i) hereof or until it is
advised in writing (the "Advice") by the Company and the Trust
that the use of the applicable Prospectus may be resumed, and, if
so directed by the Company and the Trust, such Holder will
deliver to the Company or the Trust (at the Company's or the
Trust's expense, as the case requires) all copies in such
Holder's possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may
be, current at the time of receipt of such notice. If the Company
or the Trust shall give any such notice to suspend the
disposition of Registrable Securities or Exchange Securities, as
the case may be, pursuant to a Registration Statement, the
Company and the Trust shall use their reasonable best efforts to
file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Registration
Statement and shall extend the period during which such
23
<PAGE>
Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days in the period from and
including the date of the giving of such notice to and including
the date when the Company and the Trust shall have made available
to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the
Advice.
4. Indemnification and Contribution. In connection
with any Registration Statement, the Company and the Trust shall,
jointly and severally, indemnify and hold harmless the Initial
Purchaser, each Holder, each underwriter who participates in an
offering of the Registrable Securities, each Participating
Broker-Dealer, each Person, if any, who controls any of such
parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of their respective
directors, officers, employees and agents, as follows:
(i) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto), covering
Registrable Securities or Exchange Securities, including
all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) from and against any and all loss, liability,
claim, damage and expense whatsoever, joint or several, as
incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or
proceeding by any court or governmental agency or body,
commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is
effected with the prior written consent of the Company; and
(iii) from and against any and all expenses
whatsoever, as incurred (including reasonable fees and
disbursements of counsel chosen by such Holder, such
Participating Broker-Dealer, or any underwriter (except to
the extent otherwise expressly provided in Section 4(c)
hereof)), reasonably incurred in investigating, preparing
or defending against any litigation, or any investigation
or proceeding
24
<PAGE>
by any court or governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided, however, that (i) this indemnity does not apply to any
loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished in writing to the Company or
the Trust by such Holder, such Participating Broker-Dealer or any
underwriter with respect to such Holder, Participating
Broker-Dealer or any underwriter, as the case may be, expressly
for use in the Registration Statement (or any amendment thereto)
or any Prospectus (or any amendment or supplement thereto) and
(ii) the Company and the Trust shall not be liable to any such
Holder, Participating Broker-Dealer, any underwriter or
controlling person, with respect to any untrue statement or
alleged untrue statement or omission or alleged omission in any
preliminary Prospectus to the extent that any such loss,
liability, claim, damage or expense of any Holder, Participating
Broker-Dealer, any underwriter or controlling person results from
the fact that such Holder, any underwriter or Participating
Broker-Dealer 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 as then amended or
supplemented if the Company had previously furnished copies
thereof to such Holder, underwriter or Participating
Broker-Dealer and the loss, liability, claim, damage or expense
of such Holder, underwriter, Participating Broker-Dealer or
controlling person results from an untrue statement or omission
of a material fact contained in the preliminary Prospectus which
was corrected in the final Prospectus. Any amounts advanced by
the Company or the Trust to an indemnified party pursuant to this
Section 4 as a result of such losses shall be returned to the
Company or the Trust if it shall be finally determined by such a
court in a judgment not subject to appeal or final review that
such indemnified party was not entitled to indemnification by the
Company or the Trust.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Trust, any
underwriter and the other selling Holders and each of their
respective directors, officers (including each officer of the
Company and the Trust who signed the Registration Statement),
employees and agents and each Person, if any, who controls the
Company, the Trust, any underwriter or any other selling Holder
within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the
25
<PAGE>
indemnity contained in Section 4(a) hereof, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information furnished to the Company or the Trust by such
selling Holder with respect to such Holder expressly for use in
the Registration Statement (or any amendment thereto), or any
such Prospectus (or any amendment or supplement thereto);
provided, however, that, in the case of Shelf Registration
Statement, no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities pursuant to
such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, enclosing a
copy of all papers properly served on such indemnified party, but
failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have under
this Section 4, except to the extent that it is materially
prejudiced by such failure. An indemnifying party may participate
at its own expense in the defense of such action. If an
indemnifying party so elects within a reasonable time after
receipt of such notice, an indemnifying party, severally or
jointly with any other indemnifying parties receiving such
notice, may assume the defense of such action with counsel chosen
by it and reasonably acceptable to the indemnified parties
defendant in such action, provided, however, that if (i)
representation of such indemnified party by the same counsel
would present a conflict of interest or (ii) the actual or
potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and any
such indemnified party reasonably determines that there may be
legal defenses available to such indemnified party which are
different from or in addition to those available to such
indemnifying party, then in the case of clauses (i) and (ii) of
this Section 4(c) such indemnifying party and counsel for each
indemnifying party or parties shall not be entitled to assume
such defense of such action. If an indemnifying party is not
entitled to assume the defense of such action as a result of the
proviso to the preceding sentence, counsel for such indemnifying
party and counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of such
action, in accordance with and as permitted by the provisions of
this paragraph, such indemnifying parties shall not be liable for
any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event
shall the indemnifying parties be liable for the fees and
expenses of more than one counsel (in addition to local counsel),
26
<PAGE>
separate from its own counsel, for-all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not
the indemnified parties are actual or potential parties thereto),
unless such settlement, compromise or consent (i) includes an
unconditional written release in form and substance satisfactory
to the indemnified parties of each indemnified party from all
liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Notwithstanding the last sentence of Section 4(c),
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for
reasonable fees and expenses of counsel pursuant to Section
4(a)(iii) above, such indemnifying party agrees that it shall be
liable for any settlement effected without its written consent if
(i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided that an
indemnifying party shall not be liable for any such settlement
effected without its consent if such indemnifying party (1)
reimburses such indemnified party in accordance with such request
to the extent it considers reasonable and (2) provides written
notice to the indemnified party substantiating the unpaid balance
as unreasonable, in each case prior to the date of such
settlement.
(e) In order to provide for just and equitable
contribution in circumstances under which any of the indemnity
provisions set forth in this Section 4 is for any reason held to
be unavailable to the indemnified parties although applicable in
accordance with its terms, the Company, the Trust, and the
Holders shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by such
indemnity agreement incurred by the Company, the Trust, and the
Holders, as incurred; provided that no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f)
of the 1933 Act) shall be entitled to contribution from any
Person that was not guilty of such fraudulent misrepresentation.
27
<PAGE>
As between the Company, the Trust, and the Holders, such parties
shall contribute to such aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity
agreement in such proportion as shall be appropriate to reflect
the relative fault of the Company and Trust, on the one hand, and
the Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage
or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative fault of the
Company and the Trust, on the one hand, and of the Holders, on
the other hand, 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 or
the Trust, on the one hand, or by or on behalf of the Holders, on
the other, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement
or omission. The Company, the Trust and the Holders of the
Registrable Securities agree that it would not be just and
equitable if contribution pursuant to this Section 4 were to be
determined by pro rata allocation or by any other method of
allocation that does not take into account the relevant equitable
considerations. For purposes of this Section 4, each affiliate of
a Holder, and each director, officer, employee, agent and Person,
if any, who controls a Holder or such affiliate within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such
Holder, and each director of each of the Company or the Trust,
each officer of each of the Company or the Trust who signed the
Registration Statement, and each Person, if any, who controls
each of the Company and the Trust within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act shall
have the same rights to contribution as each of the Company or
the Trust.
5. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably
required under the terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders of
Registrable Securities covered by the Shelf Registration
Statement who desire to do so may sell the securities covered by
such Shelf Registration in an underwritten offering. In any such
underwritten offering, the underwriter or underwriters and
manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal
28
<PAGE>
amount of the Registrable Securities included in such offering;
provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company and the Trust.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company
or the Trust is subject to the reporting requirements of Section
13 or 15 of the Exchange Act and any Registrable Securities
remain outstanding, each of the Company and the Trust will use
its best efforts to file the reports required to be filed by it
under the Securities Act and Section 13(a) or 15(d) of the
Exchange Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such
reports, it will, upon the request of any Holder of Registrable
Securities (a) make publicly available such information as is
necessary to permit sales of their securities pursuant to Rule
144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales of their
securities pursuant to Rule 144A under the Securities Act and it
will take such further action as any Holder of Registrable
Securities may reasonably request, and (c) take such further
action that is reasonable in the circumstances, in each case, to
the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided
by (i) Rule 144 under the Securities Act, as such rule may be
amended from time to time, (ii) Rule 144A under the Securities
Act, as such rule may be amended from time to time, or (iii) any
similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder of Registrable Securities, the Company
and the Trusts will deliver to such Holder a written statement as
to whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company or the
Trust has not entered into nor will the Company or the Trust on
or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts
with the provisions hereof. The rights granted to the Holders
hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the
Company's or the Trust's other issued and outstanding securities
under any such agreements.
(c) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company and the Trust has obtained the written consent of Holders
of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment,
29
<PAGE>
modification, supplement, waiver or departure; provided no
amendment, modification or supplement or waiver or consent to the
departure with respect to the provisions of Section 4 hereof
shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder of
Registrable Securities. Notwithstanding the foregoing sentence,
(i) this Agreement may be amended, without the consent of any
Holder of Registrable Securities, by written agreement signed by
the Company, the Trust and Initial Purchaser, to cure any
ambiguity, correct or supplement any provision of this Agreement
that may be inconsistent with any other provision of this
Agreement or to make any other provisions with respect to matters
or questions arising under this Agreement which shall not be
inconsistent with other provisions of this Agreement, (ii) this
Agreement may be amended, modified or supplemented, and waivers
and consents to departures from the provisions hereof may be
given, by written agreement signed by the Company, the Trust and
Initial Purchaser to the extent that any such amendment,
modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with
applicable law (including any interpretation of the Staff of the
SEC) or any change therein and (iii) to the extent any provision
of this Agreement relates to the Initial Purchaser, such
provision may be amended, modified or supplemented, and waivers
or consents to departures from such provisions may be given, by
written agreement signed by Initial Purchaser, the Company and
the Trust.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, telecopier, or
any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to the Company
or the Trust by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with
respect to the Initial Purchaser, the address set forth in the
Purchase Agreement; and (ii) if to the Company or the Trust,
initially at the Company's address set forth in the Purchase
Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 7(d).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the Person
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<PAGE>
giving the same to the Trustee, at the address specified in the
Indenture.
(e) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and
transferees of the Initial Purchaser, including, without
limitation and without the need for an express assignment,
subsequent Holders; provided, however, that nothing herein shall
be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Registrable Securities, in any manner,
whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities,
such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the
benefits hereof.
(f) Third Party Beneficiary. The Initial Purchaser
shall be a third party beneficiary of the agreements made
hereunder between the Company and the Trust, on the one hand, and
the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(g) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND
INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS
SET FORTH HEREIN, SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Severability. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
31
<PAGE>
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Securities Held by the Company, the Trust or its
Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company, the Trust
or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such
consent or approval was given by the Holders of such required
percentage.
32
<PAGE>
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
ALBANK FINANCIAL CORPORATION
By: /s/ Richard J. Heller
-------------------------------------
Name: Richard J. Heller
Title: Executive Vice President
and Chief Financial Officer
ALBANK CAPITAL TRUST I
By: ALBANK FINANCIAL CORPORATION,
as Sponsor
By: /s/ Barry G. Blenis
-------------------------------------
Name: Barry G. Blenis
Title: Administrator
Confirmed and accepted as of
the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ John P. Esposito
-----------------------------------
Name: John P. Esposito
Title: Vice President
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
ALBANK Financial Corporation
We consent to incorporation by reference in the Registration
Statement on Form S-4, related to the 9.27% Capital Securities,
Series B, of ALBANK Capital Trust I, of our report dated January
31, 1997, on the consolidated statements of financial condition
of ALBANK Financial Corporation and subsidiary as of December 31,
1996 and 1995, and the related consolidated statements of
earnings, changes in stockholders' equity, and cash flows for
each of the years in the three-year period ended December 31,
1996, which report appears in the December 31, 1996 Annual Report
on Form 10-K of ALBANK Financial Corporation.
We also consent to the reference to our firm under the heading
"Experts" in the related prospectus.
/s/ KPMG Peat Marwick LLP
- -------------------------------------
Albany, New York
October 29, 1997
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of October, 1997.
/s/ William J. Barr
-------------------
William J. Barr
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of October, 1997.
/s/ Henry M. Elliot, Jr.
------------------------
Henry M. Elliot, Jr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
9th day of October, 1997.
/s/ John E. Maloy, Sr.
----------------------
John E. Maloy, Sr.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
9th day of October, 1997.
/s/ Susan J. Stabile
--------------------
Susan J. Stabile
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
10th day of October, 1997.
/s/ Anthony P. Tartaglia
------------------------
Anthony P. Tartaglia
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
10th day of October, 1997.
/s/ Karen R. Hitchcock
----------------------
Karen R. Hitchcock
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
8th day of October, 1997.
/s/ Francis L. McKone
---------------------
Francis L. McKone
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned,
an officer and/or director of ALBANK Financial Corporation, a
Delaware corporation (the "Company"), hereby constitutes and
appoints Herbert G. Chorbajian and Richard J. Heller, and each of
them singly, as his true and lawful attorneys-in-fact and agents
with full power of substitution and resubstitution, acting in the
name of and on behalf of the undersigned, to sign the
Registration Statement on Form S-4 of the Company and any and all
amendments thereto, including post-effective amendments and
supplements (if any) thereto, and to file the same, with all
exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission. The undersigned does
hereby grant unto such attorneys-in-fact and agents (and either
of them) full power and authority to do and perform each and
every act and thing requisite and necessary to be done in such
connection, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents (and either of them), or their
substitutes, may lawfully do or cause to be done by virtue
hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this
10th day of October, 1997.
/s/ John J. Nigro
---------------------
John J. Nigro
- -------------------------------------------------------------------
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) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Albank Financial Corporation
(Exact name of obligor as specified in its charter)
Delaware 14-1746910
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
10 North Pearl Street
Albany, New York 12207
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Junior Subordinated Deferrable Interest Debentures
(Title of the indenture securities)
- -------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement
of Eligibility.
1. A copy of the Articles of Association of the Trustee as
now in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31,
1977, December 31, 1980, September 9, 1982, February 28, 1985,
December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1
and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference. On July 14, 1996, in connection with the merger of
Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
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.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, The Chase Manhattan Bank, a corporation
organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 22nd day of
October, 1997.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
-------------------------
Gregory P. Shea
Senior Trust Officer
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in accordance
with a call made by the Federal Reserve Bank
of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ....................................$ 13,892
Interest-bearing balances ............................... 4,282
Securities:
Held to maturity securities ................................ 2,857
Available for sale securities ............................. 34,091
Federal funds sold and securities purchased under
agreements to resell ................................... 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ... $124,827
Less: Allowance for loan and lease losses .. 2,753
Less: Allocated transfer risk reserve ...... 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................ 122,061
Trading Assets ............................................ 56,042
Premises and fixed assets (including capitalized
leases).................................................. 2,904
Other real estate owned ...................................... 306
Investments in unconsolidated subsidiaries and
associated companies....................................... 232
Customers' liability to this bank on acceptances
outstanding ............................................. 2,092
Intangible assets .......................................... 1,532
Other assets .............................................. 10,448
--------
TOTAL ASSETS ............................................ $280,709
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................... $91,249
Noninterest-bearing ......................... $38,157
Interest-bearing ............................ 53,092
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .............................................. 70,192
Noninterest-bearing ..........................$ 3,712
Interest-bearing ............................. 66,480
-------
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................... 35,185
Demand notes issued to the U.S. Treasury ................... 1,000
Trading liabilities ....................................... 42,307
Other borrowed money (includes mortgage indebtedness
and obligations under calitalized leases):
With a remaining maturity of one year or less ........... 4,593
With a remaining maturity of more than one year .
through three years................................. 260
With a remaining maturity of more than three years......... 146
Bank's liability on acceptances executed and outstanding ... 2,092
Subordinated notes and debentures .......................... 5,715
Other liabilities ......................................... 11,373
TOTAL LIABILITIES ........................................ 264,112
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................. 0
Common stock ............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,283
Undivided profits and capital reserves ..................... 5,280
Net unrealized holding gains (losses)
on available-for-sale securities ............................ (193)
Cumulative foreign currency translation adjustments ........... 16
TOTAL EQUITY CAPITAL ...................................... 16,597
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .................... $280,709
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate
Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-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) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Albank Capital Trust I
(Exact name of obligor as specified in its charter)
Delaware 14-6186122
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
c/o Albank Financial Corporation
10 North Pearl Street
Albany, New York 12207
(Address of principal executive offices) (Zip Code)
--------------------------------------------
Capital Securities
(Title of the indenture securities)
- -------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement
of Eligibility.
1. A copy of the Articles of Association of the Trustee as
now in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31,
1977, December 31, 1980, September 9, 1982, February 28, 1985,
December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1
and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference. On July 14, 1996, in connection with the merger of
Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
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.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, The Chase Manhattan Bank, a corporation
organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 22nd day of
October, 1997.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
------------------------
Gregory P. Shea
Senior Trust Officer
-3-
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in accordance
with a call made by the Federal Reserve Bank
of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ....................................$ 13,892
Interest-bearing balances ............................... 4,282
Securities:
Held to maturity securities ................................ 2,857
Available for sale securities ............................. 34,091
Federal funds sold and securities purchased under
agreements to resell ................................... 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ... $124,827
Less: Allowance for loan and lease losses .. 2,753
Less: Allocated transfer risk reserve ...... 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................ 122,061
Trading Assets ............................................ 56,042
Premises and fixed assets (including capitalized
leases).................................................. 2,904
Other real estate owned ...................................... 306
Investments in unconsolidated subsidiaries and
associated companies....................................... 232
Customers' liability to this bank on acceptances
outstanding ............................................. 2,092
Intangible assets .......................................... 1,532
Other assets .............................................. 10,448
--------
TOTAL ASSETS ............................................ $280,709
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................... $91,249
Noninterest-bearing ......................... $38,157
Interest-bearing ............................ 53,092
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .............................................. 70,192
Noninterest-bearing ..........................$ 3,712
Interest-bearing ............................. 66,480
-------
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................... 35,185
Demand notes issued to the U.S. Treasury ................... 1,000
Trading liabilities ....................................... 42,307
Other borrowed money (includes mortgage indebtedness
and obligations under calitalized leases):
With a remaining maturity of one year or less ........... 4,593
With a remaining maturity of more than one year .
through three years................................. 260
With a remaining maturity of more than three years......... 146
Bank's liability on acceptances executed and outstanding ... 2,092
Subordinated notes and debentures .......................... 5,715
Other liabilities ......................................... 11,373
TOTAL LIABILITIES ........................................ 264,112
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................. 0
Common stock ............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,283
Undivided profits and capital reserves ..................... 5,280
Net unrealized holding gains (losses)
on available-for-sale securities ............................ (193)
Cumulative foreign currency translation adjustments ........... 16
TOTAL EQUITY CAPITAL ...................................... 16,597
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .................... $280,709
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate
Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-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) ________
----------------------------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
New York 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 Park Avenue
New York, New York 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
Albank Financial Corporation
(Exact name of obligor as specified in its charter)
Delaware 14-1746910
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
10 North Pearl Street
Albany, New York 12207
(Address of principal executive offices) (Zip Code)
Capital Securities Guarantee
(Albank Capital Trust I)
(Title of the indenture securities)
--------------------------------------------
- -------------------------------------------------------------------
<PAGE>
GENERAL
Item 1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
New York State Banking Department, State House,
Albany, New York 12110.
Board of Governors of the Federal Reserve System,
Washington, D.C., 20551
Federal Reserve Bank of New York, District No. 2,
33 Liberty Street, New York, N.Y.
Federal Deposit Insurance Corporation,
Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate
trust powers.
Yes.
Item 2. Affiliations with the Obligor.
If the obligor is an affiliate of the trustee, describe
each such affiliation.
None.
<PAGE>
Item 16. List of Exhibits
List below all exhibits filed as a part of this Statement
of Eligibility.
1. A copy of the Articles of Association of the Trustee as
now in effect, including the Organization Certificate and the
Certificates of Amendment dated February 17, 1969, August 31,
1977, December 31, 1980, September 9, 1982, February 28, 1985,
December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249,
which is incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee
to Commence Business (see Exhibit 2 to Form T-1 filed in
connection with Registration Statement No. 33-50010, which is
incorporated by reference. On July 14, 1996, in connection with
the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation,
was renamed The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers
being contained in the documents identified above as Exhibits 1
and 2.
4. A copy of the existing By-Laws of the Trustee (see
Exhibit 4 to Form T-1 filed in connection with Registration
Statement No. 333-06249, which is incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b)
of the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 33-50010, which is incorporated by
reference. On July 14, 1996, in connection with the merger of
Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was
renamed The Chase Manhattan Bank).
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.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of
1939 the Trustee, The Chase Manhattan Bank, a corporation
organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its
behalf by the undersigned, thereunto duly authorized, all in the
City of New York and State of New York, on the 22nd day of
October, 1997.
THE CHASE MANHATTAN BANK
By /s/ Gregory P. Shea
------------------------
Gregory P. Shea
Senior Trust Officer
- 3 -
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997, in accordance
with a call made by the Federal Reserve Bank
of this District pursuant to the provisions
of the Federal Reserve Act.
Dollar Amounts
ASSETS in Millions
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ....................................$ 13,892
Interest-bearing balances ............................... 4,282
Securities:
Held to maturity securities ................................ 2,857
Available for sale securities ............................. 34,091
Federal funds sold and securities purchased under
agreements to resell ................................... 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income ... $124,827
Less: Allowance for loan and lease losses .. 2,753
Less: Allocated transfer risk reserve ...... 13
--------
Loans and leases, net of unearned income,
allowance, and reserve ................................ 122,061
Trading Assets ............................................ 56,042
Premises and fixed assets (including capitalized
leases).................................................. 2,904
Other real estate owned ...................................... 306
Investments in unconsolidated subsidiaries and
associated companies....................................... 232
Customers' liability to this bank on acceptances
outstanding ............................................. 2,092
Intangible assets .......................................... 1,532
Other assets .............................................. 10,448
--------
TOTAL ASSETS ............................................ $280,709
========
- 4 -
<PAGE>
LIABILITIES
Deposits
In domestic offices ................................... $91,249
Noninterest-bearing ......................... $38,157
Interest-bearing ............................ 53,092
-------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's .............................................. 70,192
Noninterest-bearing ..........................$ 3,712
Interest-bearing ............................. 66,480
-------
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................... 35,185
Demand notes issued to the U.S. Treasury ................... 1,000
Trading liabilities ....................................... 42,307
Other borrowed money (includes mortgage indebtedness
and obligations under calitalized leases):
With a remaining maturity of one year or less ........... 4,593
With a remaining maturity of more than one year .
through three years................................. 260
With a remaining maturity of more than three years......... 146
Bank's liability on acceptances executed and outstanding ... 2,092
Subordinated notes and debentures .......................... 5,715
Other liabilities ......................................... 11,373
TOTAL LIABILITIES ........................................ 264,112
--------
EQUITY CAPITAL
Perpetual preferred stock and related surplus .................. 0
Common stock ............................................... 1,211
Surplus (exclude all surplus related to preferred stock).. 10,283
Undivided profits and capital reserves ..................... 5,280
Net unrealized holding gains (losses)
on available-for-sale securities ............................ (193)
Cumulative foreign currency translation adjustments ........... 16
TOTAL EQUITY CAPITAL ...................................... 16,597
--------
TOTAL LIABILITIES AND EQUITY CAPITAL .................... $280,709
========
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the
appropriate Federal regulatory authority and is true to the best
of my knowledge and belief.
JOSEPH L. SCLAFANI
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 appropriate
Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
LETTER OF TRANSMITTAL
ALBANK CAPITAL TRUST I
OFFER TO EXCHANGE ITS
9.27% CAPITAL SECURITIES, SERIES B
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR ANY AND ALL OF ITS OUTSTANDING
9.27% CAPITAL SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
PURSUANT TO THE PROSPECTUS DATED ___________________, 1997
- -----------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON ____________________, 1997, UNLESS EXTENDED.
- -----------------------------------------------------------------
To: The Chase Manhattan Bank, as Exchange Agent
By Registered or Certified Mail
or Hand or Overnight Delivery:
The Chase Manhattan Bank
55 Water Street
Room 234, North Building
New York, New York 10041
Attention: Carlos Esteves
Confirm by Telephone:
(212) 638-0828
Facsimile Transmission:
(212) 638-7375 or (212) 344-9367
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION VIA A FACSIMILE NUMBER OTHER
THAN THE ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL SHOULD
BE READ CAREFULLY BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
The undersigned acknowledges that he or she has
received the Prospectus dated ____________, 1997 (the
"Prospectus"), of ALBANK Capital Trust I (the "Trust") and ALBANK
Financial Corporation (the "Company"), this Letter of Transmittal
(the "Letter of Transmittal") and the Notice of Guaranteed
Delivery (the "Notice of Guaranteed Delivery"), which together
constitute the Trust's offer (the "Exchange Offer") to exchange
its 9.27% Capital
<PAGE>
Securities, Series B (the "New Capital Securities") for a like
Liquidation Amount of its outstanding 9.27% Capital Securities,
Series A (the "Old Capital Securities" and, together with
the New Capital Securities, the "Capital Securities"). The terms
of the New Capital Securities are identical in all material
respects to the Old Capital Securities, except that the New
Capital Securities have been registered under the Securities Act
of 1933, as amended (the "Securities Act"), and, therefore, will
not bear legends restricting their transfer and will not contain
certain provisions providing for an increase in the Distribution
rate thereon. The term "Expiration Date" shall mean 5:00 p.m.,
New York City time, on ____________________, 1997, unless the
Exchange Offer is extended as provided in the Prospectus, in
which case the term "Expiration Date" shall mean the latest date
and time to which the Exchange Offer is extended. Capitalized
terms used but not defined herein have the meanings given to them
in the Prospectus.
Holders who wish to tender their Old Capital
Securities and (i) who cannot complete the procedures for
book-entry transfer on a timely basis, (ii) whose certificates
for Old Capital Securities ("Certificates") are not immediately
available or (iii) who cannot deliver their Old Capital
Securities, this Letter of Transmittal or an Agent's Message (as
defined in the Prospectus and in Instruction 1 below) in lieu of
such Letter of Transmittal and any other documents required by
this Letter of Transmittal to the Exchange Agent prior to the
Expiration Date must tender their Old Capital Securities
according to the guaranteed delivery procedures set forth under
the caption "The Exchange Offer--Procedures for Tendering Old
Capital Securities--Guaranteed Delivery" in the Prospectus. See
Instruction 1 below.
The term "Holder" with respect to the Exchange Offer
means any person in whose name Old Capital Securities are
registered on the books of the Trust or any other person who has
obtained a properly completed bond power from the registered
holder or any participant in The Depository Trust Company ("DTC")
system whose name appears on a security position listing as the
holder of Old Capital Securities (which, for purposes of the
Exchange Offer, include beneficial interests in the Old Capital
Securities held by direct or indirect participants in DTC and Old
Capital Securities held in definitive form). The undersigned has
completed, executed and delivered this Letter of Transmittal to
indicate the action the undersigned desires to take with respect
to the Exchange Offer. Holders who wish to tender their Old
Capital Securities must complete this Letter of Transmittal in
its entirety.
<PAGE>
PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE
COMPLETING THIS LETTER OF TRANSMITTAL
- ----------------------------------------------------------------------
DESCRIPTION OF OLD CAPITAL SECURITIES TENDERED
- ----------------------------------------------------------------------
Liquidation Number of
Amount of Beneficial
Old Capital Old Capital Holders for
Name and Address Securities Securities Whom Old
of Registered Tendered (Attach Tendered (if Capital
Holder (Please Certificate Additional List if Less than Securities are
fill in if blank) Numbers* Necessary) All)** Held
- ----------------------------------------------------------------------------
$
- ----------------------------------------------------------------------------
$
- ----------------------------------------------------------------------------
2
<PAGE>
- ----------------------------------------------------------------------------
$
- ----------------------------------------------------------------------------
Total Amount Tendered $
- ----------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Old Capital Securities may be tendered in whole or
in part in denominations of $100,000 and integral
multiples of $1,000 in excess thereof, provided that
if any Old Capital Securities are tendered for
exchange in part, the untendered Liquidation Amount
thereof must be $100,000 or any integral multiple of
$1,000 in excess thereof. All Old Capital Securities
held shall be deemed tendered unless a lesser number
is specified in this column.
\_\ CHECK HERE IF TENDERED OLD CAPITAL SECURITIES ARE BEING
DELIVERED BY BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT
MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND COMPLETE THE
FOLLOWING (ONLY PARTICIPANTS IN DTC MAY DELIVER CAPITAL
SECURITIES BY BOOK-ENTRY TRANSFER) (SEE INSTRUCTION 1):
Name of Tendering Institution.................................
DTC Account Number............................................
Transaction Code Number.......................................
\_\ CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF
GUARANTEED DELIVERY IF TENDERED OLD CAPITAL SECURITIES ARE
BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY
PREVIOUSLY SENT TO THE EXCHANGE AGENT AND COMPLETE THE
FOLLOWING (SEE INSTRUCTION 1):
Name of Registered Holder.....................................
Window Ticket Number (if any).................................
Date of Execution of Notice of Guaranteed Delivery............
Name of Institution which Guaranteed Delivery.................
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution.................................
DTC Account Number............................................
Transaction Code Number.......................................
\_\ CHECK HERE IF OLD CAPITAL SECURITIES TENDERED BY BOOK-ENTRY
TRANSFER BUT NOT EXCHANGED ARE TO BE RETURNED BY CREDITING THE
DTC ACCOUNT NUMBER SET FORTH ABOVE.
3
<PAGE>
\_\ CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD
CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET
MAKING OR OTHER TRADING ACTIVITIES (AN "EXCHANGING DEALER")
AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS
AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name...........................................................
Address........................................................
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to the Trust and the
Company the above-described aggregate Liquidation Amount of the
Old Capital Securities in exchange for a like aggregate
Liquidation Amount of the New Capital Securities.
Subject to and effective upon the acceptance for
exchange of all or any portion of the Old Capital Securities
tendered herewith in accordance with the terms and conditions of
the Exchange Offer (including, if the Exchange Offer is extended
or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers
to or upon the order of the Trust all right, title and interest
in and to such Old Capital Securities as are being tendered
herewith. The undersigned hereby irrevocably constitutes and
appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as
agent of the Company and the Trust in connection with the
Exchange Offer) with respect to the tendered Old Capital
Securities, with full power of substitution (such power of
attorney being deemed to be an irrevocable power coupled with an
interest), subject only to the right of withdrawal described in
the Prospectus, to (i) deliver Certificates for Old Capital
Securities to the Trust together with all accompanying evidences
of transfer and authenticity to, or upon the order of, the Trust,
upon receipt by the Exchange Agent, as the undersigned's agent,
of the New Capital Securities to be issued in exchange for such
Old Capital Securities, (ii) present Certificates for such Old
Capital Securities for transfer, and to transfer the Old Capital
Securities on the books of the Trust, and (iii) receive for the
account of the Trust all benefits and otherwise exercise all
rights of beneficial ownership of such Old Capital Securities,
all in accordance with the terms and conditions of the Exchange
Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT
THE UNDERSIGNED HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE,
SELL, ASSIGN AND TRANSFER THE OLD CAPITAL SECURITIES TENDERED
HEREBY AND THAT, WHEN THE SAME ARE ACCEPTED FOR EXCHANGE, THE
TRUST WILL ACQUIRE GOOD, MARKETABLE AND UNENCUMBERED TITLE
THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES AND
ENCUMBRANCES, AND THAT THE OLD CAPITAL SECURITIES TENDERED HEREBY
ARE NOT SUBJECT TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED
WILL, UPON REQUEST, EXECUTE AND DELIVER ANY ADDITIONAL DOCUMENTS
DEEMED BY THE COMPANY, THE TRUST OR THE EXCHANGE AGENT TO BE
NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND
TRANSFER OF THE
4
<PAGE>
OLD CAPITAL SECURITIES TENDERED HEREBY, AND THE
UNDERSIGNED WILL COMPLY WITH ITS OBLIGATIONS UNDER THE
REGISTRATION RIGHTS AGREEMENT. THE UNDERSIGNED HAS READ AND
AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name and address of the registered holder of the
Old Capital Securities tendered hereby should be printed above,
if they are not already set forth above, as they appear on the
Certificates representing such Old Capital Securities. The
Certificate numbers and the Old Capital Securities that the
undersigned wishes to tender should be indicated in the
appropriate boxes above.
If any tendered Old Capital Securities are not
exchanged pursuant to the Exchange Offer for any reason, or if
Certificates are submitted for more Old Capital Securities than
are tendered or accepted for exchange, Certificates for such
nonexchanged or nontendered Old Capital Securities will be
returned (or, in the case of Old Capital Securities tendered by
book-entry transfer, such Old Capital Securities will be credited
to an account maintained at DTC), without expense to the
tendering holder, promptly following the expiration or
termination of the Exchange Offer.
The undersigned understands that tenders of Old
Capital Securities pursuant to any one of the procedures
described under "The Exchange Offer--Procedures for Tendering Old
Capital Securities" in the Prospectus and in the instructions
herein will, upon the Company's and the Trust's acceptance for
exchange of such tendered Old Capital Securities, constitute a
binding agreement between the undersigned, the Company and the
Trust upon the terms and subject to the conditions of the
Exchange Offer. The undersigned recognizes that, under certain
circumstances set forth in the Prospectus, the Company and the
Trust may not be required to accept for exchange any of the Old
Capital Securities tendered hereby.
Unless otherwise indicated in the box entitled
"Special Issuance Instructions" below, the undersigned hereby
directs that the New Capital Securities be issued in the name of
the undersigned or, in the case of a book-entry transfer of Old
Capital Securities, that such New Capital Securities be credited
to the account indicated above maintained at DTC. If applicable,
substitute Certificates representing Old Capital Securities not
exchanged or not accepted for exchange will be issued to the
undersigned or, in the case of a book-entry transfer of Old
Capital Securities, will be credited to the account indicated
above maintained at DTC. Similarly, unless otherwise indicated
under "Special Delivery Instructions" below, please deliver New
Capital Securities to the undersigned at the address shown below
the undersigned's signature.
BY TENDERING OLD CAPITAL SECURITIES AND EXECUTING THIS
LETTER OF TRANSMITTAL, THE UNDERSIGNED ACKNOWLEDGES THAT THIS
EXCHANGE OFFER IS BEING MADE BY THE COMPANY AND THE TRUST BASED
UPON THE COMPANY'S AND THE TRUST'S UNDERSTANDING OF AN
INTERPRETATION BY THE STAFF OF THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") AS SET FORTH IN NO-ACTION LETTERS
ISSUED TO THIRD PARTIES, THAT THE NEW CAPITAL SECURITIES ISSUED
IN EXCHANGE FOR THE OLD CAPITAL SECURITIES TO HOLDERS THEREOF
(OTHER THAN TO HOLDERS THAT ARE "AFFILIATES" OF THE COMPANY OR
THE TRUST
5
<PAGE>
WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES
ACT) MAY BE RESOLD WITHOUT COMPLIANCE WITH THE REGISTRATION AND
PROSPECTUS DELIVERY PROVISIONS OF THE SECURITIES ACT, PROVIDED
THAT, AND THE UNDERSIGNED HEREBY REPRESENTS AND AGREES THAT, (I)
THE UNDERSIGNED IS NOT AN "AFFILIATE" OF THE COMPANY OR THE TRUST
WITHIN THE MEANING OF RULE 405 UNDER THE SECURITIES ACT, (II) ANY
NEW CAPITAL SECURITIES TO BE RECEIVED BY THE UNDERSIGNED ARE
BEING ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS, (III) THE
UNDERSIGNED HAS NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON
TO PARTICIPATE IN A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF NEW CAPITAL SECURITIES TO BE RECEIVED IN THE
EXCHANGE OFFER, AND (IV) IF THE UNDERSIGNED IS NOT A
BROKER-DEALER, THE UNDERSIGNED IS NOT ENGAGED IN, AND DOES NOT
INTEND TO ENGAGE IN, A DISTRIBUTION (WITHIN THE MEANING OF THE
SECURITIES ACT) OF SUCH NEW CAPITAL SECURITIES. HOWEVER, THE
STAFF OF THE COMMISSION HAS NOT CONSIDERED THE EXCHANGE OFFER IN
THE CONTEXT OF A NO-ACTION LETTER AND THERE CAN BE NO ASSURANCE
THAT THE STAFF OF THE COMMISSION WOULD MAKE A SIMILAR
DETERMINATION WITH RESPECT TO THE EXCHANGE OFFER AS IN OTHER
CIRCUMSTANCES.
IF A HOLDER OF REGISTRABLE SECURITIES IS AN AFFILIATE
OF THE COMPANY, OR IS ENGAGED IN OR INTENDS TO ENGAGE IN A
DISTRIBUTION OF THE NEW CAPITAL SECURITIES OR HAS ANY ARRANGEMENT
OR UNDERSTANDING WITH RESPECT TO THE DISTRIBUTION OF THE NEW
CAPITAL SECURITIES TO BE ACQUIRED PURSUANT TO THE EXCHANGE OFFER,
SUCH HOLDER COULD NOT RELY ON THE APPLICABLE INTERPRETATIONS OF
THE STAFF OF THE COMMISSION AND MUST COMPLY WITH THE REGISTRATION
AND PROSPECTUS DELIVERY REQUIREMENTS OF THE SECURITIES ACT IN
CONNECTION WITH ANY SECONDARY RESALE TRANSACTION.
BY TENDERING OLD CAPITAL SECURITIES PURSUANT TO THE
EXCHANGE OFFER AND EXECUTING THIS LETTER OF TRANSMITTAL, A HOLDER
OF OLD CAPITAL SECURITIES WHICH IS A BROKER-DEALER REPRESENTS AND
AGREES, CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY
THE STAFF OF THE COMMISSION TO THIRD PARTIES, THAT (A) SUCH OLD
CAPITAL SECURITIES HELD BY THE BROKER-DEALER ARE HELD ONLY AS A
NOMINEE, OR (B) SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY SUCH
BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING OR
OTHER TRADING ACTIVITIES AND IT WILL DELIVER A PROSPECTUS (AS
AMENDED OR SUPPLEMENTED FROM TIME TO TIME) MEETING THE
REQUIREMENTS OF THE SECURITIES ACT IN CONNECTION WITH ANY RESALE
OF SUCH NEW CAPITAL SECURITIES (PROVIDED THAT, BY SO
ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, SUCH BROKER-DEALER
WILL NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN
THE MEANING OF THE SECURITIES ACT).
THE COMPANY AND THE TRUST HAVE AGREED THAT, SUBJECT TO
THE PROVISIONS OF THE REGISTRATION RIGHTS AGREEMENT, THE
PROSPECTUS (AS IT MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME) MAY BE
6
<PAGE>
USED BY AN EXCHANGING DEALER IN CONNECTION WITH RESALES
OF NEW CAPITAL SECURITIES RECEIVED IN EXCHANGE FOR OLD CAPITAL
SECURITIES, WHERE SUCH OLD CAPITAL SECURITIES WERE ACQUIRED BY
SUCH EXCHANGING DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-
MAKING OR OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING ONE YEAR
AFTER THE EXPIRATION DATE. IN THAT REGARD, EACH EXCHANGING DEALER
WHO ACQUIRED OLD CAPITAL SECURITIES FOR ITS OWN ACCOUNT AS A
RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES, BY TENDERING
SUCH OLD CAPITAL SECURITIES AND EXECUTING THIS LETTER OF
TRANSMITTAL, AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY
OR THE TRUST OF THE OCCURRENCE OF ANY EVENT OR THE DISCOVERY OF
ANY FACT WHICH MAKES ANY STATEMENT CONTAINED OR INCORPORATED BY
REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL RESPECT OR
WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT
NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED OR
INCORPORATED BY REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES
UNDER WHICH THEY WERE MADE, NOT MISLEADING OR OF THE OCCURRENCE
OF CERTAIN OTHER EVENTS SPECIFIED IN THE REGISTRATION RIGHTS
AGREEMENT, SUCH EXCHANGING DEALER WILL SUSPEND THE SALE OF NEW
CAPITAL SECURITIES PURSUANT TO THE PROSPECTUS UNTIL THE COMPANY
OR THE TRUST HAS AMENDED OR SUPPLEMENTED THE PROSPECTUS TO
CORRECT SUCH MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES OF
THE AMENDED OR SUPPLEMENTED PROSPECTUS TO THE EXCHANGING DEALER,
OR THE COMPANY OR THE TRUST HAS GIVEN NOTICE THAT THE SALE OF THE
NEW CAPITAL SECURITIES MAY BE RESUMED, AS THE CASE MAY BE. AS A
RESULT, AN EXCHANGING DEALER THAT INTENDS TO USE THE PROSPECTUS
IN CONNECTION WITH RESALES OF NEW CAPITAL SECURITIES RECEIVED IN
EXCHANGE FOR OLD CAPITAL SECURITIES PURSUANT TO THE EXCHANGE
OFFER MUST NOTIFY THE COMPANY OR THE TRUST, OR CAUSE THE COMPANY
OR THE TRUST TO BE NOTIFIED, ON OR PRIOR TO THE EXPIRATION DATE,
THAT IT IS AN EXCHANGING DEALER. SUCH NOTICE MAY BE GIVEN IN THE
SPACE PROVIDED ABOVE OR MAY BE DELIVERED TO THE EXCHANGE AGENT AT
THE ADDRESS SET FORTH IN THE PROSPECTUS UNDER "THE EXCHANGE
OFFER--EXCHANGE AGENT."
Holders of Old Capital Securities whose Old Capital
Securities are accepted for exchange will not receive accumulated
Distributions on such Old Capital Securities for any period from
and after the last Distribution date to which Distributions have
been paid or duly provided for on such Old Capital Securities
prior to the original issue date of the New Capital Securities
or, if no such Distributions have been paid or duly provided for,
will not receive any accrued Distributions on such Old Capital
Securities, and the undersigned waives the right to receive any
interest on such Old Capital Securities accrued from and after
such Distribution date or, if no such Distributions have been
paid or duly provided for, from and after June 6, 1997.
The undersigned will, upon request, execute and
deliver any additional documents deemed by the Trust or the
Exchange Agent to be necessary or desirable to complete the
exchange, sale, assignment and transfer of Old Capital Securities
tendered hereby. All authority herein conferred or agreed to be
conferred in this Letter of Transmittal shall survive the death,
7
<PAGE>
dissolution or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the
heirs, executors, administrators, personal representatives,
trustees in bankruptcy, legal representatives, successors and
assigns of the undersigned. Except as stated in the Prospectus,
this tender is irrevocable.
8
<PAGE>
HOLDERS SIGN HERE
(See Instructions 1, 5 and 6)
(Please complete Substitute Form W-9 below)
(Note: Signatures must be guaranteed if required by Instruction 2)
Must be signed by registered holder exactly as name
appears on Certificates for the Old Capital Securities hereby
tendered or on a security position listing, or by any person
authorized to become the registered holder by endorsements and
documents transmitted herewith (including such opinions of
counsel, certifications and other information as may be required
by the Trust or the Exchange Agent for the Old Capital Securities
to comply with the restrictions on transfer applicable to the Old
Capital Securities). If signature is by an attorney-in-fact,
executor, administrator, trustee, guardian, officer of a
corporation or another acting in a fiduciary capacity or
representative capacity, please set forth the signer's full
title. See Instruction 5.
................................................
................................................
(Signature of Holder)
Date............................................
Name............................................
(Please Print)
Capacity (full title)...........................
Address.........................................
................................................
(Include Zip Code)
Area Code and
Telephone Number................................
Tax Identification or
Social Security Number..........................
GUARANTEE OF SIGNATURE
(See Instructions 2 and 5)
................................................
(Authorized Signature)
Date............................................
Name of Firm....................................
(Please Print)
Capacity (full title)...........................
Address.........................................
................................................
(Include Zip Code)
Area Code and
Telephone Number................................
9
<PAGE>
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6) (See Instructions 1, 5 and 6)
To be completed ONLY To be completed ONLY
if the New Capital Securities or any if the New Capital Securities
Old Capital Securities that are not or any Old Capital Securities
tendered are to be issued in that are not tendered are to
the name of someone other than be sent to someone other than
the registered holder of the Old the registered holder of the
Capital Securities whose name Old Capital Securities whose name
appears above. appears above, or to such registered
holder at an address other
than that shown above.
Issue Mail
\_\ New Capital Securities \_\ New Capital Securities
and/or
\_\ Old Capital Securities \_\ Old Capital Securities
not tendered not tendered
to: to:
Name....................... Name.......................
(Please Print) (Please Print)
Address.................... Address....................
........................... ...........................
........................... ...........................
(Include Zip Code) (Include Zip Code)
Area Code and Area Code and
Telephone Number........... Telephone Number...........
........................... ...........................
(Tax Identification or (Tax Identification or
Social Security Number) Social Security Number)
10
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. Delivery of Letter of Transmittal and Certificates;
Guaranteed Delivery Procedures. This Letter of Transmittal is to
be completed either if (a) Certificates are to be forwarded
herewith or (b) tenders are to be made pursuant to the procedures
for tender by book-entry transfer set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus and an Agent's Message is not delivered. Certificates,
or timely book-entry confirmation of a book-entry transfer of
such Old Capital Securities into the Exchange Agent's account at
DTC, as well as this Letter of Transmittal (or facsimile
thereof), properly completed and duly executed, with any required
signature guarantees and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at
its address set forth herein on or prior to the Expiration Date.
Tenders by book-entry transfer may also be made by delivering an
Agent's Message in lieu of this Letter of Transmittal. The term
"book-entry confirmation" means a timely written confirmation
from DTC of book-entry transfer of Old Capital Securities into
the Exchange Agent's account at DTC. The term "Agent's Message"
means a message, transmitted by DTC to and received by the
Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from
the tendering participant, which acknowledgment states that such
participant has received and agrees to be bound by the Letter of
Transmittal (including the representations contained herein) and
that the Trust and the Company may enforce the Letter of
Transmittal against such participant. Old Capital Securities may
be tendered in whole or in part in a Liquidation Amount of
$100,000 (100 Capital Securities) and integral multiples of
$1,000 in excess thereof, provided that if any Old Capital
Securities are tendered for exchange in part, the untendered
Liquidation Amount thereof must be $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof.
Holders who wish to tender their Old Capital
Securities and (i) whose Old Capital Securities are not
immediately available or (ii) who cannot deliver their Old
Capital Securities, this Letter of Transmittal and all other
required documents to the Exchange Agent on or prior to the
Expiration Date or (iii) who cannot complete the procedures for
delivery by book-entry transfer on a timely basis, may tender
their Old Capital Securities by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedures set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus. Pursuant to such procedures: (i) such tender must be
made by or through an Eligible Institution (as defined below);
(ii) a properly completed and duly executed Notice of Guaranteed
Delivery, substantially in the form made available by the Company
and the Trust, must be received by the Exchange Agent on or prior
to the Expiration Date; and (iii) the Certificates (or a
book-entry confirmation (as defined above and in the Prospectus))
representing all tendered Old Capital Securities, in proper form
for transfer, together with a Letter of Transmittal (or facsimile
thereof or Agent's Message in lieu thereof), properly completed
and duly executed, with any required signature guarantees and any
other documents required by this Letter of Transmittal, must be
received by the Exchange Agent within three New York Stock
Exchange trading days after the date of execution of such Notice
of Guaranteed Delivery, all as provided in "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus.
11
<PAGE>
The Notice of Guaranteed Delivery may be delivered by
hand or transmitted by facsimile or mail to the Exchange Agent,
and must include a guarantee by an Eligible Institution in the
form set forth in such Notice. For Old Capital Securities to be
properly tendered pursuant to the guaranteed delivery procedure,
the Exchange Agent must receive a Notice of Guaranteed Delivery
on or prior to the Expiration Date. As used herein and in the
Prospectus, "Eligible Institution" means a firm or other entity
identified in Rule 17Ad-15 under the Exchange Act as "an eligible
guarantor institution," including (as such terms are defined
therein): (i) a bank; (ii) a broker, dealer, municipal securities
broker or dealer or government securities broker or dealer; (iii)
a credit union; (iv) a national securities exchange, registered
securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer
Association.
THE METHOD OF DELIVERY OF CERTIFICATES, THIS LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE OPTION AND
SOLE RISK OF THE TENDERING HOLDER AND THE DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED BY THE EXCHANGE AGENT. IF
DELIVERY IS BY MAIL, THEN REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, OR OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ENSURE TIMELY DELIVERY.
Neither the Company nor the Trust will accept any
alternative, conditional or contingent tenders. Each tendering
holder, by execution of a Letter of Transmittal (or facsimile
thereof or Agent's Message in lieu thereof), waives any right to
receive any notice of the acceptance of such tender.
2. Guarantee of Signatures. No signature guarantee of
this Letter of Transmittal is required if:
(i) this Letter of Transmittal is signed by the
registered holder (which term, for purposes of this document,
shall include any participant in DTC whose name appears on a
security position listing as the owner of the Old Capital
Securities) of Old Capital Securities tendered herewith, unless
such holder has completed either the box entitled "Special
Issuance Instructions" or the box entitled "Special Delivery
Instructions" above, or
(ii) such Old Capital Securities are tendered for the
account of a firm that is an Eligible Institution.
In all other cases, an Eligible Institution must
guarantee the signature on this Letter of Transmittal. See
Instruction 5.
3. Inadequate Space. If the space provided in the box
captioned "Description of Old Capital Securities Tendered" is
inadequate, the Certificate numbers and/or the Liquidation Amount
of Old Capital Securities and any other required information
should be listed on a separate signed schedule which is attached
to this Letter of Transmittal.
12
<PAGE>
4. Partial Tenders and Withdrawal Rights. Tenders of
Old Capital Securities will be accepted only in a Liquidation
Amount of $100,000 (100 Capital Securities) and integral
multiples of $1,000 in excess thereof, provided that if any Old
Capital Securities are tendered for exchange in part, the
untendered Liquidation Amount thereof must be $100,000 (100
Capital Securities) or any integral multiple of $1,000 in excess
thereof. If less than all the Old Capital Securities evidenced by
any Certificate submitted are to be tendered, fill in the
Liquidation Amount of Old Capital Securities which are to be
tendered in the box entitled "Liquidation Amount of Old Capital
Securities Tendered (if less than all)." In such case, a new
Certificate for the remainder of the Old Capital Securities that
were evidenced by the old Certificate will be sent to the holder
of the Old Capital Security promptly after the Expiration Date
unless the appropriate boxes on this Letter of Transmittal are
completed. All Old Capital Securities represented by Certificates
delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old
Capital Securities may be withdrawn at any time on or prior to
the Expiration Date. In order for a withdrawal to be effective on
or prior to that time, a written, telegraphic, telex or facsimile
transmission of such notice of withdrawal must be timely received
by the Exchange Agent at its address set forth above or in the
Prospectus on or prior to the Expiration Date. Any such notice of
withdrawal must specify the name of the person who tendered the
Old Capital Securities to be withdrawn, the aggregate Liquidation
Amount of Old Capital Securities to be withdrawn, and (if
Certificates for Old Capital Securities have been tendered) the
name of the registered holder of the Old Capital Securities as
set forth on the Certificates for the Old Capital Securities, if
different from that of the person who tendered such Old Capital
Securities. If Certificates for the Old Capital Securities have
been delivered or otherwise identified to the Exchange Agent,
then prior to the physical release of such Certificates for the
Old Capital Securities, the tendering holder must submit the
serial numbers shown on the particular Certificates for the Old
Capital Securities to be withdrawn and the signature on the
notice of withdrawal must be guaranteed by an Eligible
Institution, except in the case of Old Capital Securities
tendered for the account of an Eligible Institution. If Old
Capital Securities have been tendered pursuant to the procedures
for book-entry transfer set forth under "The Exchange
Offer--Procedures for Tendering Old Capital Securities" in the
Prospectus, the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal
of Old Capital Securities, in which case a notice of withdrawal
will be effective if delivered to the Exchange Agent by written,
telegraphic, telex or facsimile transmission. Withdrawals of
tenders of Old Capital Securities may not be rescinded. Old
Capital Securities properly withdrawn will not be deemed validly
tendered for purposes of the Exchange Offer, but may be
retendered at any subsequent time on or prior to the Expiration
Date by following any of the procedures described in the
Prospectus under "The Exchange Offer--Procedures for Tendering
Old Capital Securities."
All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be
determined by the Company and the Trust, in their sole
discretion, whose determination shall be final and binding on all
parties. The Company and the Trust, any affiliates or assigns of
the Company and the Trust, the Exchange Agent or any other person
shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability
for failure to give any such notification. Any Old Capital
13
<PAGE>
Securities which have been tendered but which are withdrawn will
be returned to the holder thereof without cost to such holder
promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments
and Endorsements. If this Letter of Transmittal is signed by the
registered holder of the Old Capital Securities tendered hereby,
the signature must correspond exactly with the name as written on
the face of the Certificates or on a security position listing
without alteration, enlargement or any change whatsoever.
If any of the Old Capital Securities tendered hereby
are owned of record by two or more joint owners, all such owners
must sign this Letter of Transmittal.
If any tendered Old Capital Securities are registered
in different names on several Certificates, it will be necessary
to complete, sign and submit as many separate Letters of
Transmittal (or facsimiles thereof or Agent's Messages in lieu
thereof) as there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or
bond powers are signed by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, such persons
should so indicate when signing and must submit proper evidence
satisfactory to the Company and the Trust, in their sole
discretion, of such persons' authority to so act.
When this Letter of Transmittal is signed by the
registered owner of the Old Capital Securities listed and
transmitted hereby, no endorsement of Certificates or separate
bond powers are required unless New Capital Securities are to be
issued in the name of a person other than the registered holder.
Signatures on such Certificates or bond powers must be guaranteed
by an Eligible Institution.
If this Letter of Transmittal is signed by a person
other than the registered owner of the Old Capital Securities
listed, the Certificates must be endorsed or accompanied by
appropriate bond powers, signed exactly as the name of the
registered owner appears on the Certificates, and also must be
accompanied by such opinions of counsel, certifications and other
information as the Company, the Trust or the Exchange Agent may
require in accordance with the restrictions on transfer
applicable to the Old Capital Securities. Signatures on such
Certificates or bond powers must be guaranteed by an Eligible
Institution.
6. Special Issuance and Delivery Instructions. If New
Capital Securities are to be issued in the name of a person other
than the signer of this Letter of Transmittal, or if New Capital
Securities are to be sent to someone other than the signer of
this Letter of Transmittal or to an address other than that shown
above, the appropriate boxes on this Letter of Transmittal should
be completed. Certificates for Old Capital Securities not
exchanged will be returned by mail or, if tendered by book-entry
transfer, by crediting the account indicated above maintained at
DTC unless the appropriate boxes on this Letter of Transmittal
are completed. See Instruction 4.
14
<PAGE>
7. Irregularities. The Company and the Trust will
determine, in their sole discretion, all questions as to the form
of documents, validity, eligibility (including time of receipt)
and acceptance for exchange of any tender of Old Capital
Securities, which determination shall be final and binding on all
parties. The Company and the Trust reserve the absolute right to
reject any and all tenders determined by either of them not to be
in proper form or the acceptance of which, or exchange for, may,
in the view of counsel to the Company or the Trust, be unlawful.
The Company and the Trust also reserve the absolute right,
subject to applicable law, to waive any of the conditions of the
Exchange Offer set forth in the Prospectus under "The Exchange
Offer--Conditions to the Exchange Offer" or any conditions or
irregularity in any tender of Old Capital Securities of any
particular holder whether or not similar conditions or
irregularities are waived in the case of other holders. The
Company's and the Trust's interpretation of the terms and
conditions of the Exchange Offer (including this Letter of
Transmittal and the instructions hereto) will be final and
binding. No tender of Old Capital Securities will be deemed to
have been validly made until all irregularities with respect to
such tender have been cured or waived. The Company, the Trust,
any affiliates or assigns of the Company or the Trust, the
Exchange Agent or any other person shall not be under any duty to
give notification of any irregularities in tenders or incur any
liability for failure to give such notification.
8. Questions, Requests for Assistance and Additional
Copies. Questions and requests for assistance may be directed to
the Exchange Agent at its address and telephone number set forth
on the front of this Letter of Transmittal. Additional copes of
the Prospectus, the Notice of Guaranteed Delivery and the Letter
of Transmittal may be obtained from the Exchange Agent or from
your broker, dealer, commercial bank, trust company or other
nominee.
9. 31% Backup Withholding; Substitute Form W-9. Under
U.S. Federal income tax law, a holder whose tendered Old Capital
Securities are accepted for exchange is required to provide the
Exchange Agent with such holder's correct taxpayer identification
number ("TIN") on the Substitute Form W-9 included below. Failure
to provide the Exchange Agent with the correct TIN may subject
distributions and other payments to such holders or other payees
with respect to Old Capital Securities exchanged pursuant to the
Exchange Offer to 31% backup withholding. In addition, the
Internal Revenue Service (the "IRS") may subject the holder or
other payee to a $50 penalty.
The box in Part 3 of the Substitute Form W-9 may be
checked if the tendering holder has not been issued a TIN and has
applied for a TIN or intends to apply for a TIN in the near
future. If the box in Part 3 is checked, the holder or other
payee must also complete the Certificate of Awaiting Taxpayer
Identification Number (also included below) in order to avoid
backup withholding with respect to distributions or other
payments. Notwithstanding that the box in Part 3 is checked and
the Certificate of Awaiting Taxpayer Identification Number is
completed, the Exchange Agent will withhold 31% of all payments
made prior to the time a properly certified TIN is provided to
the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60 day period following the date of the
Substitute Form W-9. If the holder furnishes the Exchange Agent
with its TIN within 60 days after the date of the Substitute Form
W-9, the amounts retained during the 60 day period will be
remitted to the holder and no further amounts shall be retained
or withheld from payments made to the holder thereafter. If,
however, the holder has not provided the Exchange Agent with its
TIN within such 60 day
15
<PAGE>
period, amounts withheld will be remitted to the IRS as backup
withholding. In addition, 31% of all payments made thereafter
will be withheld and remitted to the IRS until a correct TIN is
provided.
The holder is required to give the Exchange Agent the
TIN (e.g., social security number or employer identification
number) of the registered owner of the Old Capital Securities or
of the last transferee appearing on the transfers attached to, or
endorsed on, the Old Capital Securities. If the Old Capital
Securities are registered in more than one name or are not in the
name of the actual owner, consult the enclosed "Guidelines for
Certification of Taxpayer Identification Number on Substitute
Form W-9" for additional guidance on which number to report.
Certain holders (including, among others,
corporations, financial institutions and certain foreign persons)
may not be subject to these backup withholding and reporting
requirements. Such holders should nevertheless complete the
attached Substitute Form W-9 below, and write "exempt" on the
face thereof, to avoid possible erroneous backup withholding. A
foreign person may qualify as an exempt recipient by submitting a
properly completed IRS Form W-8, signed under penalties of
perjury, attesting to that holder's exempt status. Please consult
the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional
guidance on which holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal
income tax. Rather, the U.S. Federal income tax liability of a
person subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment
of taxes, a refund may be obtained.
10. Lost, Destroyed or Stolen Certificates. If any
Certificates representing Old Capital Securities have been lost,
destroyed or stolen, the holder should promptly notify the
Exchange Agent. The holder will then be instructed as to the
steps that must be taken in order to replace the Certificates.
This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or
stolen Certificates have been followed.
11. Security Transfer Taxes. Holders who tender their
Old Capital Securities for exchange will not be obligated to pay
any transfer taxes in connection therewith. If, however. New
Capital Securities are to be delivered to, or are to be issued in
the name of, any person other than the registered holder of the
Old Capital Securities tendered, or if a transfer tax is imposed
for any reason other than the exchange of Old Capital Securities
in connection with the Exchange Offer, then the amount of any
such transfer tax (whether imposed on the registered holder or
any other persons) will be payable by the tendering holder. If
satisfactory evidence of payment of such taxes or exemption
therefrom is not submitted with the Letter of Transmittal, the
amount of such transfer taxes will be billed directly to such
tendering holder.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE
THEREOF OR AGENT'S MESSAGE IN LIEU THEREOF) AND ALL OTHER
REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT ON
OR PRIOR TO THE EXPIRATION DATE.
16
<PAGE>
- -----------------------------------------------------------------------
PAYER'S NAME THE CHASE MANHATTAN BANK
- -----------------------------------------------------------------------
Part 1- PLEASE PROVIDE YOUR TIN Social Security Number
IN THE BOX AT RIGHT AND CERTIFY or Employer
BY SIGNING AND DATING BELOW Identification Number
-----------------
-------------------------------------------------------
SUBSTITUTE Part 2 - CERTIFICATION - Under penalties of perjury, I
FORM W-9I certify that:
(1) The number shown on this form is my correct
Department of the Taxpayer Identification Number (or I am waiting for
Treasury Internal a number to be issued to me);
Revenue Service
(2) I am not subject to backup withholding either
because: (a) I am exempt from backup withholding,
or (b) I have not been notified by the Internal
Payer's Request for Revenue Service (the "IRS") that I am subject to
Taxpayer Identification backup withholding as a result of a failure to report
Number (TIN) all interest or dividends, or (c) the IRS has
notified me that I am no longer subject to
backup withholding; and
(3) Any other information provided
on this form is true and correct.
-------------------------------------------------------
CERTIFICATION INSTRUCTIONS - You must Part 3
cross out item (2) above if you have
been notified by the IRS that you are Awaiting
currently subject to backup withholding TIN \_\
because of underreporting interest or
dividends on your tax return. However,
if after being notified by the IRS that
you are subject to backup withholding,
you received another notification from
the IRS that you are no longer subject
to backup withholding, do not cross out
such item (2).
THE INTERNAL REVENUE SERVICE DOES NOT
REQUIRE YOUR CONSENT TO ANY PROVISION OF
THIS DOCUMENT OTHER THAN THE
CERTIFICATIONS REQUIRED TO AVOID BACKUP
WITHHOLDING.
SIGNATURE................
DATE.....................
NAME (Please Print)......
ADDRESS (Please Print)...
.........................
-------------------------------------------------
...................................................................
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN
BACKUP WITHHOLDING OF 31% OF ANY PAYMENTS MADE TO YOU
PURSUANT TO THE EXCHANGE OFFER. PLEASE REVIEW THE
ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR
ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU CHECKED THE
BOX IN PART 3 OF SUBSTITUTE FORM W-9.
17
<PAGE>
...................................................................
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer
identification number has not been issued to me, and either (1) I
have mailed or delivered an application to receive a taxpayer
identification number to the appropriate Internal Revenue Service
Center or Social Security Administration Office or (2) I intend
to mail or deliver an application in the near future. I
understand that if I do not provide a taxpayer identification
number by the time of payment, 31% of all reportable payments
made to me will be withheld, but that such amounts will be
refunded to me if I then provide a Taxpayer Identification Number
within sixty (60) days. I further understand that if I do not
provide a taxpayer identification number within 60 days, such
retained amounts shall be remitted to the Internal Revenue
Service as a backup withholding and 31% of all reportable
payments made to me thereafter will be withheld and remitted to
the Internal Revenue Service until I provide a taxpayer
identification number.
Signature.................................. Date................
Name (Please Print)................................................
Address (Please Print).............................................
18
NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF
9.27% CAPITAL SECURITIES, SERIES A
(LIQUIDATION AMOUNT $1,000 PER CAPITAL SECURITY)
OF
ALBANK CAPITAL TRUST I
As set forth in the Prospectus dated ________________,
1997 (the "Prospectus"), of ALBANK Capital Trust I (the "Trust")
and ALBANK Financial Corporation (the "Company") under the
caption "The Exchange Offer--Procedures for Tendering Old Capital
Securities-- Guaranteed Delivery," this form must be used to
accept the Trust's offer to exchange its 9.27% Capital
Securities, Series B which have been registered under the
Securities Act of 1933, as amended (the "New Capital
Securities"), for a like Liquidation Amount of its outstanding
9.27% Capital Securities, Series A (the "Old Capital
Securities"), by Holders who wish to tender their Old Capital
Securities if (i) the procedures for delivery by book-entry
transfer cannot be completed on a timely basis, (ii) certificates
for the Old Capital Securities are not immediately available or
(iii) Old Capital Securities, the Letter of Transmittal or an
Agent's Message (as defined in the Prospectus) and any other
documents required by the Letter of Transmittal cannot be
delivered to the Exchange Agent prior to the Expiration Date.
This form must be delivered by mail or hand delivery or
transmitted, via facsimile, to the Exchange Agent at its address
set forth below not later than the Expiration Date. All
capitalized terms used herein but not defined herein shall have
the meanings ascribed to them in the Prospectus.
The Exchange Agent is:
THE CHASE MANHATTAN BANK
By Registered or Certified Mail
or Hand or Overnight Delivery:
The Chase Manhattan Bank
55 Water Street
Room 234, North Building
New York, New York 10041
Attention: Carlos Esteves
Confirm by Telephone:
(212) 638-0828
Facsimile Transmission:
(212) 638-7375 or (212) 344-9367
<PAGE>
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN
AS SET FORTH ABOVE OR TRANSMISSION VIA FACSIMILE TO A NUMBER
OTHER THAN THE ONE LISTED ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED
TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF
TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE
INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE
GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE
SIGNATURE BOX ON THE LETTER OF TRANSMITTAL.
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders for exchange to the
Trust upon the terms and subject to the conditions set forth in
the Prospectus and the Letter of Transmittal, receipt of which is
hereby acknowledged, the aggregate Liquidation Amount of Old
Capital Securities set forth below pursuant to the guaranteed
delivery procedures set forth in the Prospectus under the caption
"The Exchange Offer--Procedures for Tendering Old Capital
Securities--Guaranteed Delivery."
The undersigned understands and acknowledges that the
Exchange Offer will expire at 5:00 p.m., New York City time, on
_______________, 1997, unless extended by the Trust. The term
"Expiration Date" shall mean 5:00 p.m., New York City time, on
_____________, 1997, unless the Exchange Offer is extended as
provided in the Prospectus, in which case the term "Expiration
Date" shall mean the latest date and time to which the Exchange
Offer is extended.
All authority conferred or agreed to be conferred by
this Notice of Guaranteed Delivery shall survive the death,
incapacity or dissolution of the undersigned, and every
obligation of the undersigned under this Notice of Guaranteed
Delivery shall be binding upon the undersigned's heirs, personal
representatives, successors and assigns.
<PAGE>
SIGNATURE
X......................................... Date:.................
X......................................... Date:.................
Signature(s) of Registered Holder(s) or Authorized Signatory
Area Code and Telephone Number:...................................
Name(s):..........................................................
(Please Print)
Capacity (full title, if signing in a fiduciary or representative
capacity):
..................................................................
Address:..........................................................
(Including Zip Code)
Taxpayer Identification or Social Security No.:...................
Aggregate Liquidation Amount
of Old Capital Securities Tendered
(must be $100,000 or an integral
multiple of $1,000 in excess thereof): $..........................
Certificate Number(s) of Old Capital
Securities (if available): .......................................
Aggregate Liquidation Amount
Represented by Certificate(s): $..................................
IF TENDERED OLD CAPITAL SECURITIES WILL BE DELIVERED BY BOOK-
ENTRY TRANSFER, PROVIDE THE DEPOSITORY TRUST COMPANY ("DTC")
ACCOUNT NUMBER AND, IF AVAILABLE, THE TRANSACTION CODE NUMBER:
Account No........................................................
Transaction No....................................................
<PAGE>
GUARANTY OF DELIVERY (NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a firm or other entity identified as
an "eligible guarantor institution" within the meaning of Rule
17Ad-15 promulgated under the Securities Exchange Act of 1934, as
amended, guarantees deposit with the Exchange Agent of a properly
completed and executed Letter of Transmittal (or facsimile
thereof), or an Agent's Message, as well as the certificate(s)
representing all tendered Old Capital Securities in proper form
for transfer, or confirmation of the book-entry transfer of such
Old Capital Securities into the Exchange Agent's account at DTC,
pursuant to the procedures for book-entry transfer described in
the Prospectus under the caption "The Exchange Offer--Procedures
for Tendering Old Capital Securities-- Book-Entry Transfer" and
other documents required by the Letter of Transmittal, all by
5:00 p.m., New York City time, on the third New York Stock
Exchange trading day following the Expiration Date.
The undersigned acknowledges that it must deliver the
Letter(s) of Transmittal, or an Agent's Message, and the Old
Capital Securities tendered hereby, or confirmation of the
book-entry transfer of such Old Capital Securities, to the
Exchange Agent within the time period set forth above and that
failure to do so could result in a financial loss to the
undersigned.
Name of Eligible Institution:.....................................
Address:..........................................................
...........................................................
...........................................................
Area Code and Telephone Number:...................................
AUTHORIZED SIGNATURE
Name:..........................
Title:.........................
Date:..........................
NOTE: DO NOT SEND OLD CAPITAL SECURITIES WITH THIS NOTICE. ACTUAL
SURRENDER OF OLD CAPITAL SECURITIES MUST BE PURSUANT TO, AND BE
ACCOMPANIED BY, A PROPERLY EXECUTED LETTER OF TRANSMITTAL AND
ANY OTHER REQUIRED DOCUMENTS.
________ ___, 1997
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Ladies and Gentlemen:
ALBANK Capital Trust I, a Delaware statutory business trust
(the "Issuer") proposes to make an offer (the "Exchange Offer")
to exchange up to $50,000,000 aggregate liquidation amount of its
9.27% Capital Securities, Series B (liquidation amount $1,000 per
Capital Security) (the "New Capital Securities"), which have been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like liquidation amount of its
outstanding 9.27% Capital Securities, Series A (liquidation amount
$1,000 per Capital Security) (the "Old Capital Securities"), of
which $50,000,000 aggregate liquidation amount is outstanding.
The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated ________ ___,
1997 (the "Prospectus"), a copy of which is attached to this
Agreement as Attachment A, proposed to be distributed to all
record holders of the Old Capital Securities. Capitalized terms
used herein and not otherwise defined shall have the meanings
assigned to them in the Prospectus.
The Issuer hereby appoints The Chase Manhattan Bank to act
as exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" shall refer to
The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the
Issuer on or about ________ ___, 1997. The Letter of Transmittal
accompanying the Prospectus is to be used by the holders of the
Old Capital Securities to accept the Exchange Offer, and contains
certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on ________ ___, 1997 or on such later date or time to
which the Issuer or ALBANK Financial Corporation (the "Company")
may extend the Exchange Offer (the "Expiration Date"). Subject to
the terms and conditions set forth in the Prospectus, the Issuer
and the Company expressly reserve the right to extend the
Exchange Offer from time to time and may extend the Exchange
Offer by giving oral (promptly confirmed in writing) or written
notice to you no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
The Issuer and the Company expressly reserve the right to
amend or terminate the Exchange Offer, and not to accept for
exchange any Old Capital Securities not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the
Exchange Offer
<PAGE>
specified in the Prospectus under the caption "Conditions to the
Exchange Offer." The Issuer or the Company will give oral
(promptly confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to
act in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned
"The Exchange Offer" and as specifically set forth herein and
such duties which are necessarily incidental thereto; provided,
however, that in no way will your general duty to act in good
faith be discharged by the foregoing.
2. You will establish an account with respect to the Old
Capital Securities at The Depository Trust Company (the
"Book-Entry Transfer Facility") for purposes of the Exchange
Offer within two business days after the date of the Prospectus
or, if you already have established an account with the
Book-Entry Transfer Facility suitable for the Exchange Offer, you
will identify such preexisting account to be used in the Exchange
Offer, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry
delivery of the Old Capital Securities by causing the Book-Entry
Transfer Facility to transfer such Old Capital Securities into
your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal,
certificates for Old Capital Securities and confirmations of
book-entry transfers into your account at the Book- Entry
Transfer Facility and any Agent's Message or other documents
delivered or mailed to you by or for holders of the Old Capital
Securities to ascertain whether: (i) the Letters of Transmittal
and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein, (ii)
the Old Capital Securities have otherwise been properly tendered,
(iii) the Old Capital Securities tendered in part are tendered in
principal amounts of $100,000 (100 Capital Securities) and
integral multiples of $1,000 in excess thereof and if any Old
Capital Securities are tendered for exchange in part, the
untendered principal amount thereof is $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof,
and (iv) holders of Old Capital Securities have provided their
Tax Identification Number or required certification. In each case
where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for
Old Capital Securities are not in proper form for transfer or
some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters
of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Issuer or the Chairman of the
Board, the Chief Executive Officer, the Chief Financial Officer
or the Secretary of the Company (such approval, if given orally,
to be confirmed in writing) or any other party designated by the
Issuer or such officer of the Company in writing, you are
authorized to waive any
2
<PAGE>
irregularities in connection with any tender of Old Capital
Securities pursuant to the Exchange Offer.
5. Tenders of Old Capital Securities may be made only as
set forth in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Old Capital
Securities" or in the Letter of Transmittal and Old Capital
Securities shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old
Capital Securities which the Issuer or any other party designated
by the Issuer in writing shall approve as having been properly
tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Issuer with respect to any Old
Capital Securities delivered subsequent to the Expiration Date
and accept its instructions with respect to disposition of such
Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are
registered in two or more names only if signed by all named
holders:
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority to so act is submitted; and
(c) from persons other than the registered holder of Old
Capital Securities provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities
where so indicated and as permitted in the Letter of Transmittal
and deliver certificates for Old Capital Securities to the
transfer agent for split-up and return any untendered Old Capital
Securities to the holder (or to such other person as may be
designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to
the Exchange Offer, the Issuer will notify you (such notice if
given orally, to be promptly confirmed in writing) of the
Issuer's acceptance, promptly after the Expiration Date, of all
Old Capital Securities properly tendered and you, on behalf of
the Issuer, will exchange such Old Capital Securities for the New
Capital Securities and cause such Old Capital Securities to be
canceled. Delivery of New Capital Securities will be made on
behalf of the Issuer by you at the rate of $1,000 liquidation
amount of New Capital Securities for each $1,000 liquidation
amount of Old Capital Securities tendered promptly after notice
(such notice if given orally, to be promptly confirmed in
writing) of acceptance of said Old Capital Securities by the
Issuer; provided, however, that in
3
<PAGE>
all cases, Old Capital Securities tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you
of certificates for such Old Capital Securities (or confirmation
of book-entry transfer into your account at the Book-Entry
Transfer Facility), a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature
guarantees (or in lieu thereof an Agent's Message) and any other
required document. Unless otherwise instructed by the Company or
the Issuer, you shall issue New Capital Securities only in
denominations of $100,000 (100 Capital Securities) or any
integral multiple of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set
forth in the Prospectus and the Letter of Transmittal, Old
Capital Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date in
accordance with the terms of the Exchange Offer.
10. The Company and the Issuer shall not be required to
exchange any Old Capital Securities tendered if any of the
conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company and the Issuer not to
exchange any Old Capital Securities tendered shall be given (such
notice, if given orally, shall be promptly confirmed in writing)
by the Company or the Issuer to you.
11. If, pursuant to the Exchange Offer, the Issuer does not
accept for exchange all or part of the Old Capital Securities
tendered because of an invalid tender, the occurrence of certain
other events set forth in the Prospectus under the caption "The
Exchange Offer -- Conditions to the Exchange Offer" or otherwise,
you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for
unaccepted Old Capital Securities (or effect the appropriate
book-entry transfer of the unaccepted Old Capital Securities),
and return any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Old Capital Securities,
unaccepted Old Capital Securities or New Capital Securities shall
be forwarded by (a) certified mail, under a blanket surety bond
protecting you, the Issuer and the Company from loss or liability
arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured separately for the
replacement value of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any person
to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of Old Capital Securities, and will not be
required to and will make no representation as to the validity,
value or genuineness of the
4
<PAGE>
Exchange Offer; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing;
(b) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any
expense or liability, unless you shall have been furnished with
reasonable indemnity;
(c) shall not be liable to the Company or the Issuer for
any action taken or omitted by you, or any action suffered by you
to be taken or omitted, without negligence, misconduct or bad
faith on your part, by reason of or as a result of the
administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any
written or oral instructions delivered to you pursuant hereto,
and may reasonably rely on and shall be protected in acting in
good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered
to you and reasonably believed by you to be genuine and to have
been signed by the proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to
its due execution and validity and the effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon
written or oral instructions from the Issuer or any officer of
the Company with respect to the Exchange Offer;
(f) shall not advise any person whether to tender or
refrain from tendering Old Capital Securities pursuant to the
Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Capital Securities; and
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the
written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in
accordance with such written opinion of such counsel.
15. You shall take such action as may from time to time be
requested by the Company, the Issuer or their counsel (and such
other action as you may reasonably deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery, or such other forms as may be approved from
time to time by the Company or the Issuer, to all persons
requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided
that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Company
or the Issuer will furnish you with copies of such documents at
your request. All other requests for information relating to the
Exchange Offer shall be directed to the Company, Attention:
Freling H. Smith.
5
<PAGE>
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to the Issuer, the
Company and Cleary, Gottlieb, Steen & Hamilton, 2000 Pennsylvania
Avenue, N.W., Washington, D.C. 20006-1801, Attn: Kenneth L.
Bachman, Esq., counsel for the Company and the Issuer, and such
other person or persons as they may request, daily, and more
frequently, if reasonably requested, up to and including the
Expiration Date, as to the principal amount of the Old Capital
Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals to the items
properly received and items improperly received and items covered
by Notices of Guaranteed Delivery. In addition, you will also
inform, and cooperate in making available to, the Company and the
Issuer or any such other person or persons as the Company or the
Issuer request from time to time prior to the Expiration Date of
such other information as they or he reasonably requests. Such
cooperation shall include, without limitation, the granting by
you to the Company, the Issuer and such person as the Company or
the Issuer may request of access to those persons on your staff
who are responsible for receiving tenders, in order to ensure
that immediately prior to the Expiration Date, the Company and
the Issuer shall have received information in sufficient detail
to enable them to decide whether to extend the Exchange Offer.
You shall prepare a list of persons who failed to tender or whose
tenders were not accepted and the aggregate principal amount of
Old Capital Securities not tendered or Old Capital Securities not
accepted and deliver said list to the Company and the Issuer at
least seven days prior to the Expiration Date. You shall also
prepare a final list of all persons whose tenders were accepted,
the aggregate principal amount of Old Capital Securities tendered
and the aggregate principal amount of Old Capital Securities
accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date and the time of
receipt thereof and shall be preserved by you for a period of
time at least equal to the period of time you preserve other
records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus
materials by returning them to the Company.
18. At the written request of the Company and the Issuer or
their counsel, you shall notify tendering holders of Old Capital
Securities in the event of any extension, termination or
amendment of the Exchange Offer. In the event of any such
termination, you will return all tendered Old Capital Securities
to the persons entitled thereto, at the request and expense of
the Company.
19. If any holder of Old Capital Securities shall report to
you that his or her failure to surrender Old Capital Securities
registered in his or her name is due to the loss or destruction
of a certificate or certificates, you shall request such holder
(i) to furnish to you an affidavit of loss and, if required by
the Company and the Issuer, a bond of indemnity in an amount and
evidenced by such certificate or certificates of a surety as may
be satisfactory to you, the Company and the Issuer, and (ii) to
execute and deliver an agreement to indemnify the Company, the
Issuer and you, in such form as is acceptable to you, the Company
and the Issuer. The obligees to be named in each such indemnity
bond shall include you, the Company and the Issuer. You shall
report to the Company the names of all holders of Old
6
<PAGE>
Capital Securities who claim that their Old Capital Securities
have been lost or destroyed and the principal amount of such Old
Capital Securities.
20. As soon as practicable after the Expiration Date, you
shall arrange for cancellation of the Old Capital Securities
submitted to you and accepted for exchange by the Issuer. Such
Old Capital Securities shall be canceled and retired by you in
your capacity as Trustee under the Indenture dated June 6, 1997,
governing the Capital Securities, as you are instructed by the
Company and the Issuer (or a representative designated by the
Company or the Issuer) in writing.
21. For services rendered as Exchange Agent hereunder you
shall be entitled to a fee of $4,000 (which fee the Exchange
Agent hereby agrees and acknowledges has already been paid by the
Company) and you shall be entitled to reimbursement of your
reasonable and duly documented out-of-pocket expenses (including
reasonable and duly documented fees and expenses of your counsel,
which fees are expected under normal circumstances to be not in
excess of $5,000) incurred in connection with the Exchange Offer.
For purposes of the preceding sentence, fees and expenses for
which an appropriate invoice has been delivered by you shall be
deemed duly documented fees and expenses. The obligations under
this Section 21 shall constitute joint and several obligations of
the Issuer and the Company.
22. You hereby acknowledge receipt of the Prospectus and
the Letter of Transmittal attached hereto and further acknowledge
that you have examined each of them to the extent necessary to
perform your obligations hereunder. Any inconsistency between
this Agreement, on the one hand, and the Prospectus and the
Letter of Transmittal (as they may be amended from time to time),
on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
23. The Company and the Issuer jointly and severally
agree to indemnify and hold you harmless in your capacity as
Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorney's fees, arising out of or in
connection with the acceptance or administration of your duties
hereunder, including, without limitation, in connection with any
act, omission, delay or refusal made by you in reasonable
reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid,
genuine and sufficient and in accepting any tender or effecting
any transfer of Old Capital Securities reasonably believed by you
in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old
Capital Securities; provided, however, that the Company and the
Issuer shall not be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of
your negligence, willful breach of this Agreement, willful
misconduct or bad faith. In no case shall the Company and the
Issuer be liable under this indemnity with respect to any claim
against you unless the Company and the Issuer shall be notified
by you, by letter or cable or by facsimile confirmed by letter,
of the written assertion of a claim against you or of any other
action commenced against you, promptly after you shall have
received any such written assertion or commencement of action.
The Company and the
7
<PAGE>
Issuer shall be entitled to participate at their own expense in
the defense of any such claim or other action, and, if the
Company and the Issuer so elect, the Company and the Issuer shall
assume the defense of any suit brought to enforce any such claim.
In the event that the Company and the Issuer shall assume the
defense of any such suit, the Company and the Issuer shall not be
liable for the fees and expenses of any additional counsel
thereafter retained by you or any other fees and expenses
incurred by you in defense of such suit so long as the Company
and the Issuer shall retain counsel reasonably satisfactory to
you to defend such suit. You shall not compromise or settle any
such pending or threatened action or claim without the prior,
written consent of the Company and the Issuer.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the
laws of the State of New York applicable to agreements made and
to be performed entirely within such state, and without regard to
conflicts of law principles, and shall inure to the benefit of,
and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto. No other
person shall acquire or have any rights under or by virtue of
this Agreement.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and
all of which taken together constitute one and the same
agreement.
26. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of the party to be charged. This Agreement may not
be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile) and shall be given to such party,
addressed to it, at its address or telecopy number set forth
below:
If to the Company: ALBANK Financial Corporation
10 North Pearl Street
Albany, New York 12207
Telephone: (518) 445-2100
Facsimile: (518) 445-2140
Attention: Freling H. Smith
8
<PAGE>
If to the Issuer: ALBANK Capital Trust I
c/o ALBANK Financial Corporation
10 North Pearl Street
Albany, New York 12207
Telephone: (518) 445-2100
Facsimile: (518) 445-2140
Attention: Freling H. Smith
If to the Exchange Agent: The Chase Manhattan Bank
450 West 33rd Street, 15th Floor
New York, New York 10001
Facsimile: (212) 946-8159/60
Attention: Gregory P. Shea
or such other address or telecopy number as any of the above may
have furnished to the other parties in writing for such purpose.
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Sections 21 and 23 shall survive
the termination of this Agreement. Except as provided in Sections
17 and 20, upon any termination of this Agreement, you shall
promptly deliver to the Company any funds or property (including,
without limitation, Letters of Transmittal, certificates for
Capital Securities and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this
Agreement.
30. This Agreement shall be binding and effective as of
the date hereof.
9
<PAGE>
Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the
enclosed copy.
ALBANK FINANCIAL CORPORATION
By: ________________________
Name:
Title:
ALBANK CAPITAL TRUST I
By: ________________________
Name:
Title:
Accepted as of the date first above written:
THE CHASE MANHATTAN BANK
By: ___________________________
Name:
Title:
