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AMENDED AND RESTATED DECLARATION
OF TRUST
ALBANK Capital Trust I
Dated as of June 6, 1997
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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
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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
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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
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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
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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.
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.
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"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.
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"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.
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"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).
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"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:
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(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.
8
"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
13
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
14
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.
17
(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
18
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
20
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
21
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
22
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
23
(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
24
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
25
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;
26
(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;
27
(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
31
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
34
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
35
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
36
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
37
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.
38
(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
39
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
40
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
45
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
46
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
49
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
53
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
54
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
55
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
56
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.
57
(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
58
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
59
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.
60
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
61
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
62
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
63
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
64
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
65
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.
66
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.
67
(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;
69
(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
71
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:
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
I-4
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
I-6
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.
I-7
(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
I-8
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
I-9
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
I-10
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
I-11
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
I-12
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
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
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
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
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
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
** 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
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
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[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
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
_____________________
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
[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
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
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
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
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
IN WITNESS WHEREOF, the Trust has executed this
certificate this day of [ ], .
ALBANK CAPITAL TRUST I
By:________________________________
Name:
Administrator
A2-3
[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
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