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ALBANK FINANCIAL CORPORATION
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INDENTURE
Dated as of June 6, 1997
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The Chase Manhattan Bank
as Trustee
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JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
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TIE-SHEET
of provisions of Trust Indenture Act of 1939 with Indenture
dated as of June 6, 1997 between ALBANK Financial Corporation and
The Chase Manhattan Bank, Trustee:
ACT SECTION INDENTURE SECTION
310(a)(1)......................................................6.09
(a)(2) .....................................................6.09
310(a)(3).......................................................N/A
(a)(4).......................................................N/A
310(a)(5)................................................6.10, 6.11
310(b)..........................................................N/A
310(c).........................................................6.13
311(a) and (b)..................................................N/A
311(c)................................................4.01, 4.02(a)
312(a).........................................................4.02
312(b) and (c).................................................4.04
313(a).........................................................4.04
313(b)(1)......................................................4.04
313(b)(2)......................................................4.04
313(c).........................................................4.04
313(d).........................................................4.04
314(a).........................................................4.03
314(b)..........................................................N/A
314(c)(1) and (2)..............................................6.07
314(c)(3).......................................................N/A
314(d) .........................................................N/A
314(e).........................................................6.07
314(f) .........................................................N/A
315(a)(c) and (d)..............................................6.01
315(b) ........................................................5.08
315(e) ........................................................5.09
316(a)(1) .....................................................5.07
316(a)(2) ......................................................N/A
316(a) last sentence ..........................................2.09
316(b) ........................................................9.02
317(a) ........................................................5.05
317(b) ........................................................6.05
318(a) .......................................................13.08
THIS TIE-SHEET IS NOT PART OF THE INDENTURE AS EXECUTED.
TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS......................... 1
SECTION 1.Definitions................................ 1
Additional Interest.................................. 1
Adjusted Treasury Rate............................... 1
Affiliate............................................ 2
ALBANK Capital Trust................................. 2
Authenticating Agent................................. 2
Bankruptcy Law....................................... 2
Board of Directors................................... 3
Board Resolution..................................... 3
Business Day......................................... 3
Capital Securities................................... 3
Capital Securities Guarantee......................... 3
Commission........................................... 3
Common Securities.................................... 3
Common Securities Guarantee.......................... 4
Common Stock......................................... 4
Company.............................................. 4
Company Request...................................... 4
Company Order........................................ 4
Comparable Treasury Issue............................ 4
Comparable Treasury Price............................ 4
Compounded Interest.................................. 4
Custodian............................................ 4
Declaration.......................................... 5
Default.............................................. 5
Deferred Interest.................................... 5
Definitive Securities................................ 5
Depositary........................................... 5
Dissolution Event.................................... 5
Event of Default..................................... 5
Exchange Act......................................... 5
Exchange Offer....................................... 5
Extended Interest Payment Period..................... 5
Federal Reserve...................................... 6
Global Security...................................... 6
Indebtedness for Money Borrowed...................... 6
Indenture............................................ 6
Initial Optional Prepayment Date..................... 6
Interest Payment Date................................ 6
Investment Company Event............................. 6
Maturity Date........................................ 7
--------
* THIS TABLE OF CONTENTS SHALL NOT, FOR ANY PURPOSE, BE
DEEMED TO BE A PART OF THE INDENTURE.
i
Mortgage............................................. 7
Non-Book-Entry Capital Securities.................... 7
Offering Memorandum.................................. 7
Officers............................................. 7
Officers' Certificate................................ 7
Opinion of Counsel................................... 7
Optional Prepayment Price............................ 7
Other Debentures..................................... 7
Other Guarantees..................................... 7
outstanding.......................................... 7
Person............................................... 8
Predecessor Security................................. 8
Prepayment Price..................................... 8
Principal Office of the Trustee...................... 8
Property Trustee..................................... 8
Purchase Agreement................................... 8
Quotation Agent...................................... 9
Reference Treasury Dealer............................ 9
Reference Treasury Dealer Quotations................. 9
Registration Rights Agreement........................ 9
Regulatory Capital Event............................. 9
Remaining Life....................................... 9
Responsible Officer.................................. 9
Restricted Security.................................. 10
Rule 144A............................................ 10
Securities........................................... 10
Securities Act....................................... 10
Securityholder....................................... 10
holder of Securities................................. 10
Holder............................................... 10
Security Register.................................... 10
Senior Indebtedness.................................. 10
Series A Securities.................................. 10
Series B Securities.................................. 10
Special Event........................................ 10
Special Event Prepayment Price....................... 11
Subsidiary........................................... 11
Tax Event............................................ 11
Trustee.............................................. 12
Trust Indenture Act of 1939.......................... 12
Trust Securities..................................... 12
U.S. Government Obligations.......................... 12
ARTICLE II
SECURITIES.......................... 13
SECTION 2.01. Forms Generally........................ 13
SECTION 2.02. Execution and Authentication........... 13
SECTION 2.03. Form and Payment....................... 13
SECTION 2.04. Legends................................ 14
SECTION 2.05. Global Security........................ 14
SECTION 2.06. Interest............................... 16
ii
SECTION 2.07. Transfer and Exchange.................. 17
SECTION 2.08. Replacement Securities................. 19
SECTION 2.09. Temporary Securities................... 19
SECTION 2.10. Cancellation........................... 20
SECTION 2.11. Defaulted Interest..................... 20
SECTION 2.12. CUSIP Numbers.......................... 21
ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY............. 22
SECTION 3.01. Payment of Principal, Premium and
Interest............................... 22
SECTION 3.02. Offices for Notices and Payments, etc.. 22
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office....................... 23
SECTION 3.04. Provision as to Paying Agent........... 23
SECTION 3.05. Certificate to Trustee................. 24
SECTION 3.06. Compliance with Consolidation
Provisions............................. 24
SECTION 3.07. Limitation on Dividends................ 25
SECTION 3.08. Covenants as to ALBANK Capital Trust....26
SECTION 3.09. Payment of Expenses.................... 26
SECTION 3.10. Payment Upon Resignation or Removal.... 27
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE................... 27
SECTION 4.01. Securityholders' Lists................. 27
SECTION 4.02. Preservation and Disclosure of Lists... 28
SECTION 4.03. Reports by the Company................. 30
SECTION 4.04. Reports by the Trustee................. 31
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT..................... 31
SECTION 5.01. Events of Default...................... 31
SECTION 5.02. Payment of Securities on Default; Suit
Therefor............................... 34
SECTION 5.03. Application of Moneys Collected by
Trustee................................ 36
SECTION 5.04. Proceedings by Securityholders......... 37
SECTION 5.05. Proceedings by Trustee................. 38
SECTION 5.06. Remedies Cumulative and Continuing..... 38
SECTION 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of
Securityholders ....................... 38
SECTION 5.08. Notice of Defaults..................... 39
SECTION 5.09. Undertaking to Pay Costs............... 40
iii
ARTICLE VI
CONCERNING THE TRUSTEE.................... 40
SECTION 6.01. Duties and Responsibilities of Trustee. 40
SECTION 6.02. Reliance on Documents, Opinions, etc... 42
SECTION 6.03. No Responsibility for Recitals, etc.... 43
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar
May Own Securities..................... 44
SECTION 6.05. Moneys to be Held in Trust............. 44
SECTION 6.06. Compensation and Expenses of Trustee... 44
SECTION 6.07. Officers' Certificate as Evidence...... 45
SECTION 6.08. Conflicting Interest of Trustee........ 45
SECTION 6.09. Eligibility of Trustee................. 46
SECTION 6.10. Resignation or Removal of Trustee...... 46
SECTION 6.11. Acceptance by Successor Trustee........ 48
SECTION 6.12. Succession by Merger, etc.............. 49
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor............................... 49
SECTION 6.14. Authenticating Agents.................. 49
ARTICLE VII
CONCERNING THE SECURITYHOLDERS................ 51
SECTION 7.01. Action by Securityholders.............. 51
SECTION 7.02. Proof of Execution by Securityholders.. 52
SECTION 7.03. Who Are Deemed Absolute Owners......... 52
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding............................ 52
SECTION 7.05. Revocation of Consents; Future Holders
Bound.................................. 53
ARTICLE VIII
SECURITYHOLDERS' MEETINGS.................. 53
SECTION 8.01. Purposes of Meetings................... 53
SECTION 8.02. Call of Meetings by Trustee............ 54
SECTION 8.03. Call of Meetings by Company or
Securityholders........................ 54
SECTION 8.04. Qualifications for Voting.............. 54
SECTION 8.05. Regulations............................ 55
SECTION 8.06. Voting................................. 56
ARTICLE IX
AMENDMENTS.......................... 57
SECTION 9.01. Without Consent of Securityholders..... 57
SECTION 9.02. With Consent of Securityholders........ 59
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures...... 60
SECTION 9.04. Notation on Securities................. 60
iv
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee...... 60
ARTICLE X
CONSOLIDATION, CONVERSION, MERGER, SALE,
CONVEYANCE AND LEASE............................ 61
SECTION 10.01. Company May Consolidate, etc., on
Certain Terms......................... 61
SECTION 10.02. Successor Corporation to be Substituted
for Company........................... 62
SECTION 10.03. Opinion of Counsel to be Given
Trustee .............................. 62
ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE........... 63
SECTION 11.01. Discharge of Indenture................ 63
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee................................ 63
SECTION 11.03. Paying Agent to Repay Moneys Held...... 64
SECTION 11.04. Return of Unclaimed Moneys............. 64
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations............ 64
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.................... 66
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations................. 66
ARTICLE XIII
MISCELLANEOUS PROVISIONS................... 67
SECTION 13.01. Successors............................ 67
SECTION 13.02. Official Acts by Successor
Corporation .......................... 67
SECTION 13.03. Surrender of Company Powers........... 67
SECTION 13.04. Addresses for Notices, etc............ 67
SECTION 13.05. Governing Law......................... 68
SECTION 13.06. Evidence of Compliance with Conditions
Precedent............................. 68
SECTION 13.07. Business Days......................... 68
SECTION 13.08. Trust Indenture Act to Control........ 68
SECTION 13.09. Table of Contents, Headings, etc...... 69
SECTION 13.10. Execution in Counterparts............. 69
SECTION 13.11. Separability.......................... 69
SECTION 13.12. Assignment............................ 69
SECTION 13.13. Acknowledgement of Rights............. 69
v
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND.................... 70
SECTION 14.01. Special Event Prepayment.............. 70
SECTION 14.02. Optional Prepayment by Company........ 70
SECTION 14.03. No Sinking Fund....................... 71
SECTION 14.04. Notice of Prepayment; Selection of
Securities............................ 72
SECTION 14.05. Payment of Securities Called for
Prepayment............................ 73
ARTICLE XV
SUBORDINATION OF SECURITIES................. 73
SECTION 15.01. Agreement to Subordinate.............. 73
SECTION 15.02. Default on Senior Indebtedness........ 74
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.. 74
SECTION 15.04. Subrogation........................... 76
SECTION 15.05. Trustee to Effectuate Subordination... 77
SECTION 15.06. Notice by the Company................. 77
SECTION 15.07. Rights of the Trustee; Holders of
Senior Indebtedness................... 78
SECTION 15.08. Subordination May Not Be Impaired..... 79
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD............. 80
SECTION 16.01. Extension of Interest Payment Period.. 80
SECTION 16.02. Notice of Extension................... 80
EXHIBIT A.......................................................A-1
Testimonium
Signatures
Acknowledgements
vi
THIS INDENTURE, dated as of June 6, 1997, between
ALBANK Financial Corporation, a Delaware corporation (hereinafter
sometimes called the "Company"), and The Chase Manhattan Bank, a
New York banking corporation, as trustee (hereinafter sometimes
called the "Trustee"),
W I T N E S S E T H :
In consideration of the premises, and the purchase of
the Securities by the holders thereof, the Company covenants and
agrees with the Trustee for the equal and proportionate benefit
of the respective holders from time to time of the Securities, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section 1.01 (except as
herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture shall have
the respective meanings specified in this Section 1.01. All other
terms used in this Indenture which are defined in the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), or
which are by reference therein defined in the Securities Act,
shall (except as herein otherwise expressly provided or unless
the context otherwise requires) have the meanings assigned to
such terms in said Trust Indenture Act and in said Securities Act
as in force at the date of this Indenture as originally executed.
The following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Delaware Trustee; (iii)
Property Trustee; (iv) Administrators; (v) Direct Action; (vi)
Purchase Agreement and (vii) Trust. All accounting terms used
herein and not expressly defined shall have the meanings assigned
to such terms in accordance with generally accepted accounting
principles and the term "generally accepted accounting
principles" means such accounting principles as are generally
accepted at the time of any computation. The words "herein",
"hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other subdivision. Headings are used for convenience
of reference only and do not affect interpretation. The singular
includes the plural and vice versa.
"Additional Interest" shall have the meaning set forth
in Section 2.06(c).
"Adjusted Treasury Rate" shall mean, with respect to
any prepayment date, the rate per annum equal to (i) the yield,
under the heading which represents the average for the
immediately prior week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor
publication which is published weekly by the Federal Reserve and
which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the
caption "Treasury Constant Maturities," for the maturity
corresponding to the Remaining Life (if no maturity is within
three months before or after the maturity corresponding to the
Remaining Life, yields for the two published maturities most
closely corresponding to the Remaining Life shall be
interpolated, and the Adjusted Treasury Rate shall be
interpolated or extrapolated from such yields on a straight-line
basis, rounding to the nearest month) or (ii) if such release (or
any successor release) is not published during the week preceding
the calculation date or does not contain such yields, the rate
per annum equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for
the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such
prepayment date, in each case calculated on the third Business
Day preceding the prepayment date, plus in each case (a) 1.50% if
such prepayment date occurs on or prior to June 6, 1998, and (b)
0.50% in all other cases.
"Affiliate" shall mean, with respect to a specified
Person, (a) any Person directly or indirectly owning, controlling
or holding the power to vote 10% or more of the outstanding
voting securities or other ownership interests of the specified
Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or
indirectly owned, controlled or held with power to vote by the
specified Person, (c) any Person directly or indirectly
controlling, controlled by, or under common control with the
specified Person, (d) a partnership in which the specified Person
is a general partner, (e) any officer or director of the
specified Person, and (f) if the specified Person is an
individual, any entity of which the specified Person is an
officer, director or general partner.
"ALBANK Capital Trust" or the "Trust" shall mean
ALBANK Capital Trust I, a Delaware business trust created for the
purpose of issuing its undivided beneficial interests in
connection with the issuance of Securities under this Indenture.
"Authenticating Agent" shall mean any agent or agents
of the Trustee which at the time shall be appointed and acting
pursuant to Section 6.14.
"Bankruptcy Law" shall mean Title 11, U.S. Code, or any
similar federal or state law for the relief of debtors.
2
"Board of Directors" shall mean either the Board of
Directors of the Company or any duly authorized committee of that
board.
"Board Resolution" shall mean a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors and
to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business Day" shall mean, with respect to any series
of Securities, any day other than a Saturday or a Sunday or a day
on which banking institutions in The City of New York or
Wilmington, Delaware are authorized or required by law or
executive order to close.
"Capital Securities" shall mean undivided beneficial
interests in the assets of ALBANK Capital Trust which rank pari
passu with the Common Securities issued by ALBANK Capital Trust;
provided, however, that if an Event of Default has occurred and
is continuing, no payments in respect of Distributions on, or
payments upon liquidation, prepayment or otherwise with respect
to, the Common Securities shall be made until the holders of the
Capital Securities shall be paid in full the Distributions and
the liquidation, prepayment and other payments to which they are
entitled. References to "Capital Securities" shall include
collectively any Series A Capital Securities and Series B Capital
Securities.
"Capital Securities Guarantee" shall mean any
guarantee that the Company may enter into with The Chase
Manhattan Bank or other Persons that operates directly or
indirectly for the benefit of holders of Capital Securities of
ALBANK Capital Trust and shall include a Series A Capital
Securities Guarantee and a Series B Capital Securities Guarantee
with respect to the Series A Capital Securities and the Series B
Capital Securities, respectively.
"Commission" shall mean the Securities and Exchange
Commission, as from time to time constituted, created under the
Exchange Act, or if at any time after the execution of this
Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Securities" shall mean undivided beneficial
interests in the assets of ALBANK Capital Trust which rank pari
passu with Capital Securities issued by ALBANK Capital Trust;
provided, however, that if an Event of Default has occurred and
is continuing, no payments in respect of Distributions on, or
payments upon liquidation, prepayment or otherwise with respect
to, the Common Securities shall be made until the holders of the
3
Capital Securities shall be paid in full the Distributions and
the liquidation, prepayment and other payments to which they are
entitled.
"Common Securities Guarantee" shall mean any guarantee
by the Company that operates directly or indirectly for the
benefit of holders of Common Securities of ALBANK Capital Trust.
"Common Stock" shall mean the Common Stock, par value
$.01 per share, of the Company or any other class of stock
resulting from changes or reclassifications of such Common Stock
consisting solely of changes in par value, or from par value to
no par value, or from no par value to par value.
"Company" shall mean ALBANK Financial Corporation, a
Delaware corporation, and, subject to the provisions of Article
Ten, shall include its successors and assigns.
"Company Request" or "Company Order" shall mean a
written request or order signed in the name of the Company by an
Officer of the Company, and delivered to the Trustee.
"Comparable Treasury Issue" shall mean the United
States Treasury security selected by the Quotation Agent as
having a maturity comparable to the Remaining Life of the
Securities that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the
Remaining Life of the Securities. If no United States Treasury
security has a maturity which is within a period from three
months before to three months after the Initial Optional
Prepayment Date, the two most closely corresponding United States
Treasury securities shall be used as the Comparable Treasury
Issue, and the Adjusted Treasury Rate shall be interpolated or
extrapolated on a straight-line basis, rounding to the nearest
month, using such securities.
"Comparable Treasury Price" shall mean, with respect
to any prepayment date pursuant to Section 14.01, (i) the average
of five Reference Treasury Dealer Quotations for such prepayment
date, after excluding the highest and lowest such Reference
Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer
than five such Reference Treasury Dealer Quotations, the average
of all such Quotations.
"Compounded Interest" shall have the meaning set forth
in Section 16.01.
"Custodian" shall mean any receiver, trustee,
assignee, liquidator, or similar official under any Bankruptcy
Law.
4
"Declaration" shall mean the Amended and Restated
Declaration of Trust of ALBANK Capital Trust, dated as of June 6,
1997.
"Default" shall mean any event, act or condition that
with notice or lapse of time, or both, would constitute an Event
of Default.
"Deferred Interest" shall have the meaning set forth in
Section 16.01.
"Definitive Securities" shall mean those securities
issued in fully registered certificated form not otherwise in
global form.
"Depositary" shall mean, with respect to Securities of
any series, for which the Company shall determine that such
Securities will be issued as a Global Security, The Depository
Trust Company, New York, New York, another clearing agency, or
any successor registered as a clearing agency under the Exchange
Act or other applicable statute or regulation, which, in each
case, shall be designated by the Company pursuant to Section
2.05(d).
"Dissolution Event" shall mean the liquidation of the
Trust pursuant to the Declaration, and the distribution of the
Securities held by the Property Trustee to the holders of the
Trust Securities issued by the Trust pro rata in accordance with
the Declaration.
"Event of Default" shall mean any event specified in
Section 5.01, continued for the period of time, if any, and after
the giving of the notice, if any, therein designated.
"Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
"Exchange Offer" means the offer that may be made
pursuant to the Registration Rights Agreement (i) by the Company
to exchange Series B Securities for Series A Securities and to
exchange a Series B Capital Securities Guarantee for a Series A
Capital Securities Guarantee and (ii) by ALBANK Capital Trust to
exchange Series B Capital Securities for Series A Capital
Securities.
"Extended Interest Payment Period" shall have the
meaning set forth in Section 16.01.
5
"Federal Reserve" shall mean the Board of Governors of
the Federal Reserve System and its successors.
"Global Security" shall mean, with respect to the
Securities, a Security executed by the Company and delivered by
the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture, which shall
be registered in the name of the Depositary or its nominee.
"Indebtedness for Money Borrowed" shall mean any
obligation of, or any obligation guaranteed by, the Company for
the repayment of borrowed money, whether or not evidenced by
bonds, debentures, notes or other written instruments but shall
not include (i) any trade accounts payable in the ordinary course
of business, (ii) any indebtedness that by its terms ranks pari
passu with or junior in right of payment to the Securities, (iii)
all other debt securities, and guarantees in respect of those
debt securities, issued to any other trust, or a trustee of such
trust, partnership or other entity affiliated with the Company
that is a financing vehicle of the Company (a "financing entity")
in connection with the issuance by such financing entity of
equity securities or other securities guaranteed by the Company
pursuant to an instrument that ranks pari passu with or junior in
right of payment to the Capital Securities Guarantee, (iv)
indebtedness to any employee of the Company, (v) any indebtedness
of the Company which when incurred was without recourse to the
Company and (vi) any other indebtedness that would otherwise
qualify as Indebtedness for Money Borrowed to the extent that
such indebtedness by its terms ranks pari passu with or junior in
right of payment to any Indebtedness described in any of (i),
(ii) or (iii).
"Indenture" shall mean this instrument as originally
executed or, if amended as herein provided, as so amended.
"Initial Optional Prepayment Date" shall mean June 6,
2007.
"Interest Payment Date" shall have the meaning set
forth in Section 2.06.
"Investment Company Event" means the receipt by the
Company and the Trust of an opinion of nationally recognized
independent counsel experienced in practice under the Investment
Company Act of 1940, as amended (the "Investment Company Act"),
that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or
regulatory authority (a "Change in Investment Company Act Law"),
there is more than an insubstantial risk that the Trust is or
will be considered an "investment company" which is required to
be registered under the Investment Company Act, which Change in
6
Investment Company Act Law becomes effective on or after the date
of the Offering Memorandum.
"Maturity Date" shall mean June 6, 2027.
"Mortgage" shall mean and include any mortgage,
pledge, lien, security interest, conditional sale or other title
retention agreement or other similar encumbrance.
"Non-Book-Entry Capital Securities" shall have the
meaning set forth in Section 2.05.
"Offering Memorandum" shall mean the offering
memorandum, dated June 4, 1997, relating to the Capital
Securities.
"Officers" shall mean any of the Chairman, a Vice
Chairman, the Chief Executive Officer, the President, a Vice
President (whether or not designated by a number or a word or
words added before or after such title), the Comptroller or an
Assistant Comptroller, the Secretary or an Assistant Secretary of
the Company.
"Officers' Certificate" shall mean a certificate signed
by two Officers and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be an employee of the Company or may be other
counsel acceptable to the Trustee.
"Optional Prepayment Price" shall have the meaning set
forth in Section 14.02.
"Other Debentures" shall mean all junior subordinated
debentures issued by the Company from time to time and sold to
trusts to be established by the Company (if any), in each case
similar to the Trust.
"Other Guarantees" shall mean all guarantees issued by
the Company with respect to capital securities (if any) and
issued to other trusts established by the Company (if any), in
each case similar to the Trust.
The term "outstanding," when used with reference to
Securities, shall, subject to the provisions of Section 7.04,
mean, as of any particular time, all Securities authenticated and
delivered by the Trustee or the Authenticating Agent under this
Indenture, except
(a) Securities theretofore cancelled by the Trustee or
the Authenticating Agent or delivered to the
Trustee for cancellation;
7
(b) Securities, or portions thereof, for the payment
or prepayment of which moneys in the necessary
amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the
Company) or shall have been set aside and
segregated in trust by the Company (if the Company
shall act as its own paying agent); provided that,
if such Securities, or portions thereof, are to be
prepaid prior to maturity thereof, notice of such
prepayment shall have been given as in Article
Fourteen provided or provision satisfactory to the
Trustee shall have been made for giving such
notice; and
(c) Securities in lieu of or in substitution for
which other Securities shall have been
authenticated and delivered pursuant to the terms
of Section 2.08 unless proof satisfactory to the
Company and the Trustee is presented that any
such Securities are held by bona fide holders in
due course.
"Person" shall mean any individual, corporation,
estate, partnership, joint venture, association, joint-stock
company, limited liability company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Security
shall mean every previous Security evidencing all or a portion of
the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated
and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
"Prepayment Price" shall mean the Special Event
Prepayment Price or the Optional Prepayment Price, as the context
requires.
"Principal Office of the Trustee", or other similar
term, shall mean the office of the Trustee, at which at any
particular time its corporate trust business shall be principally
administered.
"Property Trustee" shall have the same meaning as set
forth in the Declaration.
"Purchase Agreement" shall mean the Purchase Agreement
dated June 4, 1997 among the Company, ALBANK Capital Trust and
the Initial Purchaser named therein.
8
"Quotation Agent" shall mean the Reference Treasury
Dealer appointed by the Company.
"Reference Treasury Dealer" shall mean a primary U.S.
Government securities dealer in New York City (a "Primary
Treasury Dealer").
"Reference Treasury Dealer Quotations" shall mean,
with respect to each Reference Treasury Dealer and any prepayment
date pursuant to Section 14.01, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such prepayment date.
"Registration Rights Agreement" shall mean the
Registration Rights Agreement, dated as of June 6, 1997, by and
among the Company, the Trust and the Initial Purchaser named
therein as such agreement may be amended, modified or
supplemented from time to time.
"Regulatory Capital Event" shall occur at any time
that the Company becomes, or pursuant to law or regulation or any
rules, guidelines or policies of the Board of Governors of the
Federal Reserve System (the "Federal Reserve") or any official
administrative announcement or decision interpreting such laws,
regulations, rules, policies or guidelines, will become within
180 days, subject to capital requirements under which, in the
written opinion of independent bank regulatory counsel
experienced in such matters, the Capital Securities would not
constitute Tier 1 Capital applied as if the Company (or its
successor) were a bank holding company (as that concept is used
in the guidelines or regulations issued by the Federal Reserve as
of the date of the Offering Memorandum) or its then equivalent
("Tier 1 Capital").
"Remaining Life" shall mean, with respect to any
optional prepayment pursuant to Section 14.01, the period from
the date of such prepayment to, and including, the Initial
Optional Prepayment Date.
"Responsible Officer", when used with respect to the
Trustee, shall mean the chairman or any vice chairman of the
board of directors, the chairman or any vice chairman of the
executive committee of the board of directors, the chairman of
the trust committee, the president, any vice president, the
cashier, any assistant cashier, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, any senior
trust officer, any trust officer or assistant trust officer, the
controller or any assistant controller or any other officer or
assistant officer of the Trustee customarily performing functions
9
similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular
subject.
"Restricted Security" shall mean Securities that bear
or are required to bear the legends set forth in Exhibit A
hereto.
"Rule 144A" shall mean Rule 144A under the Securities
Act, as such Rule may be amended from time to time, or under any
similar rule or regulation hereafter adopted by the Commission.
"Securities" shall mean, collectively, the Series A
Securities and the Series B Securities.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Securityholder", "holder of Securities", "Holder", or
other similar terms, shall mean any person in whose name at the
time a particular Security is registered on the register kept by
the Company or the Trustee for that purpose in accordance with
the terms hereof.
"Security Register" shall mean (i) prior to a
Dissolution Event, the list of holders provided to the Trustee
pursuant to Section 4.01, and (ii) following a Dissolution Event,
any security register maintained by a security registrar for the
securities appointed by the Company following the execution of a
supplemental indenture providing for transfer procedures as
provided for in Section 2.07(a).
"Senior Indebtedness" shall mean all Indebtedness for
Money Borrowed, whether outstanding on the date of execution of
this Indenture or thereafter created, assumed or incurred, unless
the terms thereof specifically provide that it is not superior in
right of payment to the Series A Securities or the Series B
Securities, and any deferrals, renewals or extensions of such
Senior Indebtedness.
"Series A Securities" means the Company's 9.27% Series
A Junior Subordinated Deferrable Interest Debentures due June 6,
2027, as authenticated and issued under this Indenture.
"Series B Securities" means the Company's 9.27% Series
B Junior Subordinated Deferrable Interest Debentures due June 6,
2027, as authenticated and issued under this Indenture.
"Special Event" shall mean either a Regulatory Capital
Event, an Investment Company Event or a Tax Event.
10
"Special Event Prepayment Price" shall mean, with
respect to any prepayment of the Securities pursuant to Section
14.01 hereof, an amount in cash equal to the greater of (i) 100%
of the principal amount to be prepaid or (ii) the sum, as
determined by a Quotation Agent, of the present values of 100% of
the principal amount thereof plus scheduled payments of interest
on the Securities during the Remaining Life of the Securities,
discounted to the prepayment date on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
the Adjusted Treasury Rate, plus, in each case, any accrued and
unpaid interest thereon, including Compounded Interest and
Additional Interest, if any, to the date of such prepayment.
"Subsidiary" shall mean with respect to any Person,
(i) any corporation at least a majority of whose outstanding
voting stock of which is owned, directly or indirectly, by such
Person or by one or more of its Subsidiaries, or by such Person
and one or more of its Subsidiaries, (ii) any general
partnership, joint venture or similar entity, at least a majority
of whose outstanding partnership or similar interests shall at
the time be owned by such Person, or by one or more of its
Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such
Person or any of its Subsidiaries is a general partner. For the
purposes of this definition, "voting stock" means shares,
interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary
voting power for the election of a majority of the directors (or
the equivalent) of such Person, other than shares, interests,
participations or other equivalents having such power only by
reason of the occurrence of a contingency.
"Tax Event" means the receipt by the Company and the
Trust of an opinion of a nationally recognized tax counsel
experienced in such matters to the effect that, as a result of
(a) any amendment to, clarification of or change (including any
announced prospective change) in, the laws or any regulations
thereunder of the United States or any political subdivision or
taxing authority thereof or therein, or (b) any judicial decision
or official administrative pronouncement, ruling, regulatory
procedure, notice or announcement, including any notice or
announcement of intent to adopt such procedures or regulations
(an "Administrative Action") or (c) any amendment to,
clarification of or change in the administrative position or
interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in
each case, by any legislative body, court, governmental agency or
regulatory body, irrespective of the manner in which such
amendment, clarification or change is made known, which
amendment, clarification or change is effective or such
Administrative Action or decision is announced, in each case, on
or after the date of the Offering Memorandum, there is more than
11
an insubstantial risk that (i) the Trust is, or will be within 90
days of the date of such opinion, subject to United States
federal income tax with respect to income received or accrued on
the Securities, (ii) the interest payable by the Company on the
Securities is not, or within 90 days of the date of such opinion
will not be, deductible by the Company, in whole or in part, for
United States federal income tax purposes, or (iii) the Trust is,
or will be within 90 days of the date of such opinion, subject to
more than a de minimis amount of other taxes, duties or other
governmental charges.
"Trustee" shall mean the Person identified as
"Trustee" in the first paragraph hereof, and, subject to the
provisions of Article Six hereof, shall also include its
successors and assigns as Trustee hereunder. The term "Trustee"
as used with respect to a particular series of the Securities
shall mean the trustee with respect to that series.
"Trust Indenture Act of 1939" shall mean the Trust
Indenture Act of 1939 as in force at the date of execution of
this Indenture, except as provided in Section 9.03.
"Trust Securities" shall mean the Capital Securities
and the Common Securities, collectively.
"U.S. Government Obligations" shall mean securities
that are (i) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States of America,
which, in either case under clauses (i) or (ii) are not callable
or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as
custodian with respect to any such U.S. Government Obligation or
a specific payment of interest on or principal of any such U.S.
Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
12
ARTICLE II
SECURITIES
SECTION 2.01. Forms Generally.
The Securities and the Trustee's certificate of
authentication shall be substantially in the form of Exhibit A,
the terms of which are incorporated in and made a part of this
Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule, agreements to
which the Company is subject or usage. Each Security shall be
dated the date of its authentication. The Securities shall be
issued in denominations of $100,000 and integral multiples of
$1,000 in excess thereof.
SECTION 2.02. Execution and Authentication.
An Officer shall sign the Securities for the Company
by manual or facsimile signature. If an Officer whose signature
is on a Security no longer holds that office at the time the
Security is authenticated, the Security shall nevertheless be
valid.
A Security shall not be valid until authenticated by
the manual signature of an authorized officer of the Trustee. The
signature of the Trustee shall be conclusive evidence that the
Security has been authenticated under this Indenture. The form of
Trustee's certificate of authentication to be borne by the
Securities shall be substantially as set forth in Exhibit A
hereto.
The Trustee shall, upon a Company Order, authenticate
for original issue up to, and the aggregate principal amount of
Securities outstanding at any time may not exceed $51,547,000
aggregate principal amount of the Securities, except as provided
in Sections 2.07, 2.08, 2.09 and 14.05. The series of Securities
to be initially issued hereunder shall be the Series A
Securities.
SECTION 2.03. Form and Payment.
Except as provided in Section 2.05, the Securities
shall be issued in fully registered certificated form without
interest coupons. Principal of, and premium, if any, and interest
on, the Securities issued in certificated form will be payable,
the transfer of such Securities will be registrable and such
Securities will be exchangeable for Securities bearing identical
terms and provisions at the office or agency of the Company
maintained for such purpose under Section 3.02; provided,
however, that payment of interest with respect to Securities
(other than a Global Security) may be made at the option of the
13
Company (i) by check mailed to the holder entitled thereto at
such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto
as specified in the Security Register, provided that proper
transfer instructions have been received in writing by the paying
agent by the relevant record date. Notwithstanding the foregoing,
so long as the holder of any Securities is the Property Trustee,
the payment of the principal of, and premium, if any, and
interest (including Compounded Interest and Additional Interest,
if any) on such Securities held by the Property Trustee will be
made at such place and to such account as may be designated by
the Property Trustee.
SECTION 2.04. Legends.
(a) Except as permitted by subsection (b) of this
Section 2.04 or as otherwise determined by the Company in
accordance with applicable law, each Security shall bear the
applicable legends relating to restrictions on transfer pursuant
to the securities laws in substantially the form set forth on
Exhibit A hereto.
(b) The Company may issue and the Trustee shall
authenticate Series B Securities in exchange for Series A
Securities accepted for exchange in the Exchange Offer, which
Series B Securities shall not bear the legends required by
subsection (a) above, in each case unless the holder of such
Series A Securities is either (A) a broker-dealer who purchased
such Series A Securities directly from the Company for resale
pursuant to Rule 144A or any other available exemption under the
Securities Act, (B) a Person participating in the distribution of
the Series A Securities or (C) a Person who is an affiliate (as
defined in Rule 144 under the Securities Act) of the Company.
SECTION 2.05. Global Security.
(a) In connection with a Dissolution Event,
(i) if any Capital Securities are held in
book-entry form, the related Definitive Securities shall be
presented to the Trustee (if an arrangement with the
Depositary has been maintained) by the Property Trustee in
exchange for one or more Global Securities (as may be
required pursuant to Section 2.07) in an aggregate
principal amount equal to the aggregate principal amount of
all outstanding Securities, to be registered in the name of
the Depositary, or its nominee, and delivered by the
Trustee to the Depositary for crediting to the accounts of
its participants pursuant to the instructions of the
Administrators; the Company upon any such presentation
shall execute one or more Global Securities in such
aggregate principal amount and deliver the same to the
Trustee for
14
authentication and delivery in accordance with this
Indenture; and payments on the Securities issued as a
Global Security will be made to the Depositary; and
(ii) if any Capital Securities are held in
certificated form, the related Definitive Securities may be
presented to the Trustee by the Property Trustee and any
Capital Security certificate which represents Capital
Securities other than Capital Securities in book-entry form
("Non Book-Entry Capital Securities") will be deemed to
represent beneficial interests in Securities presented to
the Trustee by the Property Trustee having an aggregate
principal amount equal to the aggregate liquidation amount
of the Non Book-Entry Capital Securities until such Capital
Security certificates are presented to the Security
Registrar for transfer or reissuance, at which time such
Capital Security certificates will be cancelled and a
Security, registered in the name of the holder of the
Capital Security certificate or the transferee of the
holder of such Capital Security certificate, as the case
may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Capital Security
certificate cancelled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with this Indenture. Upon the issuance of such
Securities, Securities with an equivalent aggregate
principal amount that were presented by the Property
Trustee to the Trustee will be deemed to have been
cancelled.
(b) The Global Securities shall represent the
aggregate amount of outstanding Securities from time to time
endorsed thereon; provided, that the aggregate amount of
outstanding Securities represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges and
prepayments. Any endorsement of a Global Security to reflect the
amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee, in
accordance with instructions given by the Company as required by
this Section 2.05.
(c) The Global Securities may be transferred, in whole
but not in part, only to the Depositary, another nominee of the
Depositary, or to a successor Depositary selected or approved by
the Company or to a nominee of such successor Depositary.
(d) If at any time the Depositary notifies the Company
that it is unwilling or unable to continue as Depositary or the
Depositary has ceased to be a clearing agency registered under
the Exchange Act, and a successor Depositary is not appointed by
the Company within 90 days after the Company receives such notice
or becomes aware of such condition, as the case may be, the
Company will execute, and the Trustee, upon written notice from
15
the Company, will authenticate and make available for delivery
the Definitive Securities, in authorized denominations, and in an
aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security. If there is
an Event of Default, the Depositary shall have the right to
exchange the Global Securities for Definitive Securities. In
addition, the Company may at any time determine that the
Securities shall no longer be represented by a Global Security.
In the event of such an Event of Default or such a determination,
the Company shall execute, and subject to Section 2.07, the
Trustee, upon receipt of an Officers' Certificate evidencing such
determination by the Company, will authenticate and make
available for delivery the Definitive Securities, in authorized
denominations, and in an aggregate principal amount equal to the
principal amount of the Global Security in exchange for such
Global Security. Upon the exchange of the Global Security for
such Definitive Securities, in authorized denominations, the
Global Security shall be cancelled by the Trustee. Such
Definitive Securities issued in exchange for the Global Security
shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct
the Trustee. The Trustee shall deliver such Definitive Securities
to the Depositary for delivery to the Persons in whose names such
Definitive Securities are so registered.
SECTION 2.06. Interest.
(a) Each Security will bear interest at the rate of
9.27% per annum (the "Coupon Rate") from the most recent date to
which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from June 6, 1997
until the principal thereof becomes due and payable and at the
Coupon Rate on any overdue principal (and premium, if any) and
(to the extent that payment of such interest is enforceable under
applicable law) on any overdue installment of interest,
compounded semi-annually, payable (subject to the provisions of
Article Sixteen) semi-annually in arrears on June 6 and December
6 of each year (each, an "Interest Payment Date") commencing on
December 6, 1997, to the Person in whose name such Security or
any predecessor Security is registered, at the close of business
on the regular record date for such interest installment, which
shall be the fifteenth day prior to the relevant Interest Payment
Date.
(b) Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months and, for any
period of less than a full calendar month, the number of days
elapsed in such month. In the event that any Interest Payment
Date falls on a day that is not a Business Day, then payment of
interest payable on such date will be made on the next succeeding
day which is a Business Day (and without any interest or other
16
payment in respect of any such delay), with the same force and
effect as if made on such date.
(c) During such time as the Property Trustee is the
holder of any Securities, the Company shall pay any additional
amounts on the Securities as may be necessary in order that the
amount of Distributions then due and payable by the Trust on the
outstanding Securities shall not be reduced as a result of any
additional taxes, duties and other governmental charges to which
the Trust has become subject as a result of a Tax Event
("Additional Interest").
SECTION 2.07. Transfer and Exchange.
(a) Transfer Restrictions. (i) The Series A
Securities, and those Series B Securities with respect to which
any Person described in Section 2.04(b)(A), (B) or (C) is the
beneficial owner, may not be transferred except in compliance
with the legend contained in Exhibit A unless otherwise
determined by the Company in accordance with applicable law. Upon
any distribution of the Securities following a Dissolution Event,
the Company and the Trustee shall enter into a supplemental
indenture pursuant to Section 9.01 to provide for the transfer
restrictions and procedures with respect to the Securities
substantially similar to those contained in the Declaration to
the extent applicable in the circumstances existing at such time.
(ii) Except as provided in a Company Order
delivered to the Trustee, the Securities will be issued and may
be transferred only in blocks having an aggregate principal
amount of not less than $100,000. Any such transfer of the
Securities in a block having an aggregate principal amount of
less than $100,000 shall be deemed to be voided and of no legal
effect whatsoever. Any such transferee shall be deemed not to be
a holder of such Securities for any purpose, including, but not
limited to the receipt of payments on such Securities, and such
transferee shall be deemed to have no interest whatsoever in such
Securities.
(b) General Provisions Relating to Transfers and
Exchanges. Upon surrender for registration of transfer of any
Security of any series at the office or agency of the Company
maintained for the purpose pursuant to Section 3.02, the Company
shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized
denominations and of a like aggregate principal amount.
At the option of the holder, Securities of any series
may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal
17
amount, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the holder making
the exchange is entitled to receive.
Every Security presented or surrendered for
registration of transfer or exchange shall (if so required by the
Company or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the
Company and the Security registrar duly executed, by the holder
thereof or his attorney duly authorized in writing. All
Definitive Securities and Global Securities issued upon any
registration of transfer or exchange of Definitive Securities or
Global Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Definitive Securities or Global Securities
surrendered upon such registration of transfer or exchange.
No service charge shall be made to a holder for any
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith.
The Company shall not be required to (i) issue,
register the transfer of or exchange Securities during a period
beginning at the opening of business 15 days before the day of
mailing of a notice of prepayment or any notice of selection of
Securities for prepayment under Article Fifteen hereof and ending
at the close of business on the day of such mailing; or (ii)
register the transfer of or exchange any Security so selected for
prepayment in whole or in part, except the unprepaid portion of
any Security being prepaid in part.
(c) Exchange of Series A Securities for Series B
Securities. The Series A Securities may be exchanged for Series
B Securities pursuant to the terms of the Exchange Offer. The
Trustee shall make the exchange as follows:
The Trustee, upon receipt of (i) an Opinion of Counsel
(x) to the effect that the Series B Securities have been
registered under Section 5 of the Securities Act and the
Indenture has been qualified under the Trust Indenture Act and
(y) with respect to the matters set forth in Section 3(p) of the
Registration Rights Agreement and (ii) a Company Order, shall
authenticate (A) a Global Security for Series B Securities in
aggregate principal amount equal to the aggregate principal
amount of Series A Securities represented by a Global Security
indicated in such order as having been properly tendered and (B)
Definitive Securities representing Series B Securities registered
in the names of, and in the principal amounts indicated in, such
Order.
18
If the principal amount of the Global Security for the
Series B Securities is less than the principal amount of the
Global Security for the Series A Securities, the Trustee shall
make an endorsement on such Global Security for Series A
Securities indicating a reduction in the principal amount
represented thereby.
The Trustee shall deliver such Definitive Securities
for Series B Securities to the holders thereof as indicated in
such Company Order.
SECTION 2.08. Replacement Securities.
If any mutilated Security is surrendered to the
Trustee, or the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security,
the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements for
replacements of Securities are met. An indemnity bond must be
supplied by the holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any
Authenticating Agent or any agent thereof from any loss that any
of them may suffer if a Security is replaced. The Company or the
Trustee may charge for its expenses in replacing a Security.
Every replacement Security is an obligation of the
Company and shall be entitled to all of the benefits of this
Indenture equally and proportionately with all other Securities
duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies
with respect to the replacement of mutilated, destroyed, lost or
stolen Securities.
SECTION 2.09. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and make available for delivery, temporary
Securities that are printed, lithographed, typewritten,
mimeographed or otherwise reproduced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such
Securities.
If temporary Securities are issued, the Company shall
cause definitive Securities to be prepared without unreasonable
delay. The definitive Securities shall be printed, lithographed
19
or engraved, or provided by any combination thereof, or in any
other manner permitted by the rules and regulations of any
applicable securities exchange, all as determined by the officers
executing such definitive Securities. After the preparation of
definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the
temporary Securities at the office or agency maintained by the
Company for such purpose pursuant to Section 3.02 hereof, without
charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities, the Company shall execute, and the
Trustee shall authenticate and make available for delivery, in
exchange therefor the same aggregate principal amount of
definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 2.10. Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Trustee and no one else shall
cancel all Securities surrendered for registration of transfer,
exchange, payment, replacement or cancellation and shall retain
or dispose of cancelled Securities in accordance with its normal
practices (subject to the record retention requirement of the
Exchange Act) unless the Company directs them to be returned to
it. The Company may not issue new Securities to replace
Securities that have been paid or prepaid or that have been
delivered to the Trustee for cancellation.
SECTION 2.11. Defaulted Interest.
Any interest on any Security that is payable, but is
not punctually paid or duly provided for, on any Interest Payment
Date (herein called "Defaulted Interest") shall forthwith cease
to be payable to the holder on the relevant regular record date
by virtue of having been such holder; and such Defaulted Interest
shall be paid by the Company, at its election, as provided in
clause (a) or clause (b) below:
(a) The Company may make payment of any Defaulted
Interest on Securities to the Persons in whose names such
Securities (or their respective Predecessor Securities) are
registered at the close of business on a special record
date for the payment of such Defaulted Interest, which
shall be fixed in the following manner: the Company shall
notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each such Security and the
date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make
arrangements satisfactory
20
to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date for the payment
of such Defaulted Interest which shall not be more than 15
nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such special record
date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to
be mailed, first class postage prepaid, to each
Securityholder at his or her address as it appears in the
Security Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor
having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered
on such special record date and shall be no longer payable
pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted
Interest on any Securities in any other lawful manner not
inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon
such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
SECTION 2.12. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of prepayment as a convenience to
Securityholders; provided that any such notice may state that no
representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice
of a prepayment and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such
prepayment shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
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ARTICLE III
PARTICULAR COVENANTS OF THE COMPANY
SECTION 3.01. Payment of Principal, Premium and
Interest.
The Company covenants and agrees for the benefit of
the holders of the Securities that it will duly and punctually
pay or cause to be paid the principal of and premium, if any, and
interest on the Securities at the place, at the respective times
and in the manner provided herein. Except as provided in Section
2.03, each installment of interest on the Securities may be paid
by mailing checks for such interest payable to the order of the
holder of Security entitled thereto as they appear in the
Security Register. The Company further covenants to pay
Additional Interest, if any, on the dates and in the manner
required under the Registration Rights Agreement.
SECTION 3.02. Offices for Notices and Payments, etc.
So long as any of the Securities remain outstanding,
the Company will maintain in the Borough of Manhattan, The City
of New York, an office or agency where the Securities may be
presented for payment, an office or agency where the Securities
may be presented for registration of transfer and for exchange as
in this Indenture provided and an office or agency where notices
and demands to or upon the Company in respect of the Securities
or of this Indenture may be served. The Company will give to the
Trustee written notice of the location of any such office or
agency and of any change of location thereof. Until otherwise
designated from time to time by the Company in a notice to the
Trustee, any such office or agency for all of the above purposes
shall be the Principal Office of the Trustee. In case the Company
shall fail to maintain any such office or agency in the Borough
of Manhattan, The City of New York, or shall fail to give such
notice of the location or of any change in the location thereof,
presentations and demands may be made and notices may be served
at the Principal Office of the Trustee.
In addition to any such office or agency, the Company
may from time to time designate one or more offices or agencies
outside the Borough of Manhattan, The City of New York, where the
Securities may be presented for payment, registration of transfer
and for exchange in the manner provided in this Indenture, and
the Company may from time to time rescind such designation, as
the Company may deem desirable or expedient; provided, however,
that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain any such office
or agency in the Borough of Manhattan, The City of New York, for
the purposes above mentioned. The Company will give to the
22
Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.03. Appointments to Fill Vacancies in
Trustee's Office.
The Company, whenever necessary to avoid or fill a
vacancy in the office of Trustee, will appoint, in the manner
provided in Section 6.10, a Trustee, so that there shall at all
times be a Trustee hereunder.
SECTION 3.04. Provision as to Paying Agent.
(a) If the Company shall appoint a paying agent other
than the Trustee with respect to the Securities,
it will cause such paying agent to execute and
deliver to the Trustee an instrument in which
such agent shall agree with the Trustee, subject
to the provision of this Section 3.04,
(1) that it will hold all sums held by it as
such agent for the payment of the principal
of and premium, if any, or interest on the
Securities (whether such sums have been paid
to it by the Company or by any other obligor
on the Securities) in trust for the benefit
of the holders of the Securities;
(2) that it will give the Trustee notice of any
failure by the Company (or by any other
obligor on the Securities) to make any
payment of the principal of and premium or
interest on the Securities when the same
shall be due and payable; and
(3) that it will at any time during the
continuance of any such failure, upon the
written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust
by it as such paying agent.
(b) If the Company shall act as its own paying agent,
it will, on or before each due date of the
principal of and premium, if any, or interest on
the Securities, set aside, segregate and hold in
trust for the benefit of the holders of the
Securities a sum sufficient to pay such principal,
premium or interest so becoming due and will
notify the Trustee of its action or any failure to
take such action and of any failure by the Company
(or by any other obligor under the Securities) to
make any payment of the principal of and premium,
23
if any, or interest on the Securities when the
same shall become due and payable.
Whenever the Company shall have one or more
paying agents, it will, on or prior to each due
date of the principal of (and premium, if any),
or interest on any Securities, deposit with a
paying agent a sum sufficient to pay the
principal of and premium, if any, or interest so
becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and
(unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of its
action or failure to act.
(c) Anything in this Section 3.04 to the contrary
notwithstanding, the Company may, at any time, for
the purpose of obtaining a satisfaction and
discharge with respect to the Securities
hereunder, or for any other reason, pay or cause
to be paid to the Trustee all sums held in trust
for any Securities by the Trustee or any paying
agent hereunder, as required by this Section 3.04,
such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.04 to the contrary
notwithstanding, the agreement to hold sums in
trust as provided in this Section 3.04 is subject
to Sections 11.03 and 11.04.
SECTION 3.05. Certificate to Trustee.
The Company will deliver to the Trustee on or before
120 days after the end of each fiscal year in each year,
commencing with the first fiscal year ending after the date
hereof, so long as Securities are outstanding hereunder, an
Officers' Certificate, one of the signers of which shall be the
principal executive, principal financial or principal accounting
officer of the Company stating that in the course of the
performance by the signers of their duties as officers of the
Company they would normally have knowledge of any default by the
Company in the performance of any covenants contained herein,
stating whether or not they have knowledge of any such default
and, if so, specifying each such default of which the signers
have knowledge and the nature thereof.
SECTION 3.06. Compliance with Consolidation Provisions.
The Company will not, while any of the Securities
remain outstanding, consolidate with, or merge or convert into,
24
or merge or convert into itself, or sell or convey all or
substantially all of its property to, any other Person unless the
provisions of Article Ten hereof are complied with.
SECTION 3.07. Limitation on Dividends.
The Company will not (i) declare or pay any dividends
or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital
stock (which includes common and preferred stock), (ii) make any
payment of principal, interest or premium, if any, with respect
to or repay, repurchase or redeem any debt securities of the
Company (including any Other Debentures) that rank pari passu
with or junior in right of payment to the Securities or (iii)
make any guarantee payments with respect to any guarantee by the
Company of the debt securities of any Subsidiary of the Company
(including any Other Guarantees) if such guarantee ranks pari
passu or junior in right of payment to the Securities (other than
(a) dividends or distributions in shares of, or options, warrants
or rights to subscribe for or purchase shares of, Common Stock of
the Company; (b) any declaration of a dividend in connection with
the implementation of a stockholders' rights plan, or the
issuance of stock under any such plan in the future, or the
redemption or repurchase of any such rights pursuant thereto; (c)
payments under the Capital Securities Guarantee; (d) as a result
of a reclassification of the Company's capital stock or the
exchange or the conversion of one class or series of the
Company's capital stock for another class or series of the
Company's capital stock; (e) the purchase of fractional interests
in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the
security being converted or exchanged; and (f) purchases of
Common Stock related to the issuance of Common Stock or rights
under any of the Company's benefit plans for its directors,
officers or employees or any of the Company's dividend
reinvestment plans) if at such time (i) there shall have occurred
any event of which the Company has actual knowledge that (a) is,
or with the giving of notice or the lapse of time, or both, would
constitute an Event of Default and (b) in respect of which the
Company shall not have taken reasonable steps to cure, (ii) if
such Securities are held by the Property Trustee, the Company
shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the
Company shall have given notice of its election of the exercise
of its right to extend the interest payment period pursuant to
Section 16.01 and any such extension shall have commenced and
shall be continuing.
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SECTION 3.08. Covenants as to ALBANK Capital Trust.
In the event Securities are issued to ALBANK Capital
Trust or a trustee of such trust in connection with the issuance
of Trust Securities by ALBANK Capital Trust, for so long as such
Trust Securities remain outstanding, the Company will (i)
maintain 100% direct ownership of the Common Securities of ALBANK
Capital Trust; provided, however, that any successor of the
Company, permitted pursuant to Article Ten, may succeed to the
Company's ownership of such Common Securities, (ii) use its
reasonable efforts to cause ALBANK Capital Trust (a) to remain a
business trust, except in connection with a distribution of
Securities, the prepayment of all of the Trust Securities of
ALBANK Capital Trust or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration of ALBANK
Capital Trust, and (b) to otherwise continue to be treated as a
grantor trust and not an association taxable as a corporation for
United States federal income tax purposes and (iii) to use its
reasonable efforts to cause each holder of Trust Securities to be
treated as owning an undivided beneficial interest in the
Securities.
SECTION 3.09. Payment of Expenses.
In connection with the offering, sale and issuance of
the Securities to the Trust and in connection with the sale of
the Trust Securities by the Trust, the Company, in its capacity
as borrower with respect to the Securities, shall:
(a) pay all costs and expenses relating to the
offering, sale and issuance of the Securities, including
commissions to the initial purchaser payable pursuant to the
Purchase Agreement, fees and expenses in connection with any
exchange offer or other action to be taken pursuant to the
Registration Rights Agreement and compensation of the Trustee in
accordance with the provisions of Section 6.06;
(b) pay all costs and expenses of the Trust
(including, but not limited to, costs and expenses relating to
the organization of the Trust, the offering, sale and issuance of
the Trust Securities (including commissions to the initial
purchaser in connection therewith), the fees and expenses of the
Property Trustee and the Delaware Trustee, the costs and expenses
relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and
engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and
telephone and other telecommunications expenses and costs and
expenses incurred in connection with the acquisition, financing,
and disposition of Trust assets;
26
(c) be primarily and fully liable for any
indemnification obligations arising with respect to the
Declaration;
(d) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and
all liabilities, costs and expenses with respect to such taxes of
the Trust; and
(e) pay all other fees, expenses, debts and
obligations (other than payments of principal of, premium, if
any, or interest on the Trust Securities) related to ALBANK
Capital Trust.
SECTION 3.10. Payment Upon Resignation or Removal.
Upon termination of this Indenture or the removal or
resignation of the Trustee, unless otherwise stated, the Company
shall pay to the Trustee all amounts accrued and owing to the
date of such termination, removal or resignation. Upon
termination of the Declaration or the removal or resignation of
the Delaware Trustee or the Property Trustee, as the case may be,
pursuant to Section 5.7 of the Declaration, the Company shall pay
to the Delaware Trustee or the Property Trustee, as the case may
be, all amounts accrued and owing to the date of such
termination, removal or resignation.
ARTICLE IV
SECURITYHOLDERS' LISTS AND REPORTS BY THE
COMPANY AND THE TRUSTEE
SECTION 4.01. Securityholders' Lists.
The Company covenants and agrees that it will furnish
or cause to be furnished to the Trustee:
(a) on a semi-annual basis within 14 days of each
regular record date for the Securities, a list,
in such form as the Trustee may reasonably
require, of the names and addresses of the
Securityholders as of such record date; and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the
Company, of any such request, a list of similar
form and content as of a date not more than 15
days prior to the time such list is furnished,
27
except that, no such lists need be furnished so long
as the Trustee is in possession thereof by reason of
its acting as Security registrar.
SECTION 4.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form
as is reasonably practicable, all information as
to the names and addresses of the holders of the
Securities (1) contained in the most recent list
furnished to it as provided in Section 4.01 or (2)
received by it in the capacity of Securities
registrar (if so acting) hereunder. The Trustee
may destroy any list furnished to it as provided
in Section 4.01 upon receipt of a new list so
furnished.
(b) In case three or more holders of Securities
(hereinafter referred to as "applicants") apply in
writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has
owned a Security for a period of at least six
months preceding the date of such application, and
such application states that the applicants desire
to communicate with other holders of Securities or
with holders of all Securities with respect to
their rights under this Indenture and is
accompanied by a copy of the form of proxy or
other communication which such applicants propose
to transmit, then the Trustee shall within 5
Business Days after the receipt of such
application, at its election, either:
(1) afford such applicants access to the information
preserved at the time by the Trustee in
accordance with the provisions of subsection (a)
of this Section 4.02; or
(2) inform such applicants as to the approximate
number of holders of all Securities, whose names
and addresses appear in the information preserved
at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section
4.02, and as to the approximate cost of mailing
to such Securityholders the form of proxy or
other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such
applicants access to such information, the
Trustee shall, upon the written request of such
applicants, mail to each Securityholder whose
name and
28
address appear in the information preserved at
the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 4.02
a copy of the form of proxy or other
communication which is specified in such request
with reasonable promptness after a tender to the
Trustee of the material to be mailed and of
payment, or provision for the payment, of the
reasonable expenses of mailing, unless within
five days after such tender, the Trustee shall
mail to such applicants and file with the
Commission, together with a copy of the material
to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing
would be contrary to the best interests of the
holders of Securities of such series or all
Securities, as the case may be, or would be in
violation of applicable law. Such written
statement shall specify the basis of such
opinion. If the Commission, after opportunity for
a hearing upon the objections specified in the
written statement so filed, shall enter an order
refusing to sustain any of such objections or if,
after the entry of an order sustaining one or
more of such objections, the Commission shall
find, after notice and opportunity for hearing,
that all the objections so sustained have been
met and shall enter an order so declaring, the
Trustee shall mail copies of such material to all
such Securityholders with reasonable promptness
after the entry of such order and the renewal of
such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such
applicants respecting their application.
(c) Each and every holder of Securities, by receiving
and holding the same, agrees with the Company and
the Trustee that neither the Company nor the
Trustee nor any paying agent shall be held
accountable by reason of the disclosure of any
such information as to the names and addresses of
the holders of Securities in accordance with the
provisions of subsection (b) of this Section 4.02,
regardless of the source from which such
information was derived, and that the Trustee
shall not be held accountable by reason of mailing
any material pursuant to a request made under said
subsection (b).
29
SECTION 4.03. Reports by the Company.
(a) The Company covenants and agrees to file with the
Trustee, within 15 days after the date on which
the Company is required to file the same with the
Commission, copies of the annual reports and of
the information, documents and other reports (or
copies of such portions of any of the foregoing as
the Commission may from time to time by rules and
regulations prescribe) which the Company may be
required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act;
or, if the Company is not required to file
information, documents or reports pursuant to
either of such sections, then to file with the
Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time
by the Commission, such of the supplementary and
periodic information, documents and reports which
may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and
registered on a national securities exchange as
may be prescribed from time to time in such rules
and regulations.
(b) The Company covenants and agrees to file with the
Trustee and the Commission, in accordance with the
rules and regulations prescribed from time to time
by the Commission, such additional information,
documents and reports with respect to compliance
by the Company with the conditions and covenants
provided for in this Indenture as may be required
from time to time by such rules and regulations.
(c) The Company covenants and agrees to transmit by
mail to all holders of Securities, as the names
and addresses of such holders appear upon the
Security Register, within 30 days after the filing
thereof with the Trustee, such summaries of any
information, documents and reports required to be
filed by the Company pursuant to subsections (a)
and (b) of this Section 4.03 as may be required by
rules and regulations prescribed from time to time
by the Commission.
(d) Delivery of such reports, information and
documents to the Trustee is for informational
purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any
information contained therein or determinable
from information contained therein, including the
Company's compliance with any of its covenants
30
hereunder (as to which the Trustee is entitled to
rely exclusively on Officers' Certificates).
(e) So long as is required for an offer or sale of the
Securities to qualify for an exemption under Rule
144A under the Securities Act, the Company shall,
upon request, provide the information required by
clause (d)(4) thereunder to each Holder and to
each beneficial owner and prospective purchaser of
Securities identified by each Holder of Restricted
Securities, unless such information is furnished
to the Commission pursuant to Section 13 or 15(d)
of the Exchange Act.
SECTION 4.04. Reports by the Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner
provided pursuant thereto. If required by Section
313(a) of the Trust Indenture Act, the Trustee
shall, within sixty days after each May 15
following the date of this Indenture, commencing
May 15, 1998, deliver to Holders a brief report,
dated as of such May 15, which complies with the
provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of
such transmission to Securityholders, be filed by
the Trustee with each stock exchange, if any,
upon which the Securities are listed, with the
Commission and with the Company. The Company will
promptly notify the Trustee when the Securities
are listed on any stock exchange.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
SECTION 5.01. Events of Default.
One or more of the following events of default shall
constitute an Event of Default hereunder (whatever the reason for
such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any
judgement, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
31
(a) default in the payment of any interest upon any
Security or, if such default results in
acceleration, any Other Debentures when it becomes
due and payable, and continuance of such default
for a period of 30 days; provided, however, that a
valid extension of an interest payment period by
the Company in accordance with the terms hereof
or, in the case of any Other Debentures, the
indenture related thereto, shall not constitute a
default in the payment of interest for this
purpose; or
(b) default in the payment of all or any part of the
principal of (or premium, if any, on) any
Security or, if such default results in
acceleration, any Other Debentures as and when
the same shall become due and payable either at
maturity, upon prepayment, by declaration of
acceleration or otherwise; or
(c) default in any material respect in the
performance, or breach, of any covenant or
warranty of the Company in this Indenture (other
than a covenant or warranty a default in whose
performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance
of such default or breach for a period of 90 days
after there has been given, by registered or
certified mail, to the Company by the Trustee or
to the Company and the Trustee by the holders of
at least 25% in aggregate principal amount of the
outstanding Securities a written notice specifying
such default or breach and requiring it to be
remedied and stating that such notice is a "Notice
of Default" hereunder; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of
the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a
receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the
Company or for any substantial part of its
property, or ordering the winding-up or
liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a
period of 90 consecutive days; or
(e) the Company shall commence a voluntary case under
any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, shall
32
consent to the entry of an order for relief in an
involuntary case under any such law, or shall
consent to the appointment of or taking
possession by a receiver, liquidator, assignee,
trustee, custodian, sequestrator (or other
similar official) of the Company or of any
substantial part of its property, or shall make
any general assignment for the benefit of
creditors, or shall fail generally to pay its
debts as they become due.
If an Event of Default with respect to Securities at
the time outstanding occurs and is continuing, then in every such
case the Trustee or the holders of not less than 25% in aggregate
principal amount of the Securities then outstanding may declare
the principal amount of all Securities to be due and payable
immediately, by a notice in writing to the Company (and to the
Trustee if given by the holders of the outstanding Securities),
and upon any such declaration the same shall become immediately
due and payable.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal of the
Securities shall have been so declared due and payable, and
before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i)
the Company shall pay or shall deposit with the Trustee a sum
sufficient to pay (A) all matured installments of interest upon
all the Securities and the principal of and premium, if any, on
any and all Securities which shall have become due otherwise than
by acceleration (with interest upon such principal and premium,
if any, and, to the extent that payment of such interest is
enforceable under applicable law, on overdue installments of
interest, at the same rate as the rate of interest specified in
the Securities to the date of such payment or deposit) and (B)
such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their
respective agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee
and each predecessor Trustee except as a result of negligence or
bad faith, and (ii) if any and all Events of Default under the
Indenture, other than the non-payment of the principal of the
Securities which shall have become due solely by such declaration
of acceleration, shall have been cured, waived or otherwise
remedied as provided herein, then, in every such case, the
holders of a majority in aggregate principal amount of the
Securities then outstanding, by written notice to the Company and
to the Trustee, may rescind and annul such declaration and its
consequences, but no such waiver or rescission and annulment
shall extend to or shall affect any subsequent default or shall
impair any right consequent thereon.
33
In case the Trustee shall have proceeded to enforce
any right under this Indenture and such proceedings shall have
been discontinued or abandoned because of such rescission or
annulment or for any other reason or shall have been determined
adversely to the Trustee, then and in every such case the
Company, the Trustee and the holders of the Securities shall be
restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the Company,
the Trustee and the holders of the Securities shall continue as
though no such proceeding had been taken.
SECTION 5.02. Payment of Securities on Default; Suit
Therefor.
The Company covenants that (a) in case default shall
be made in the payment of any installment of interest upon any of
the Securities as and when the same shall become due and payable,
and such default shall have continued for a period of 30 days, or
(b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Securities as and when the
same shall have become due and payable, whether at maturity of
the Securities or upon prepayment or by declaration of
acceleration or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders
of the Securities, the whole amount that then shall have become
due and payable on all such Securities for principal and premium,
if any, or interest, or both, as the case may be, with interest
upon the overdue principal and premium, if any, and (to the
extent that payment of such interest is enforceable under
applicable law and, if the Securities are held by ALBANK Capital
Trust or a trustee of such trust, without duplication of any
other amounts paid by ALBANK Capital Trust or trustee in respect
thereof) upon the overdue installments of interest at the rate
borne by the Securities; and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of
collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or
liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
In case the Company shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to
institute any actions or proceedings at law or in equity for the
collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or
any other obligor on the Securities and collect in the manner
provided by law out of the property of the Company or any other
obligor on the Securities wherever situated the moneys adjudged
or decreed to be payable.
34
In case there shall be pending proceedings for the
bankruptcy or for the reorganization of the Company or any other
obligor on the Securities under Xxxxx 00, Xxxxxx Xxxxxx Code, or
any other applicable law, or in case a receiver or trustee shall
have been appointed for the property of the Company or such other
obligor, or in the case of any other similar judicial proceedings
relative to the Company or other obligor upon the Securities, or
to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of
the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand pursuant to the provisions of
this Section 5.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove
a claim or claims for the whole amount of principal and interest
owing and unpaid in respect of the Securities and, in case of any
judicial proceedings, to file such proofs of claim and other
papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and
all advances made, by the Trustee and each predecessor Trustee,
except as a result of negligence or bad faith) and of the
Securityholders allowed in such judicial proceedings relative to
the Company or any other obligor on the Securities, or to the
creditors or property of the Company or such other obligor,
unless prohibited by applicable law and regulations, to vote on
behalf of the holders of the Securities in any election of a
trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or
person performing similar functions in comparable proceedings,
and to collect and receive any moneys or other property payable
or deliverable on any such claims, and to distribute the same
after the deduction of its charges and expenses; and any
receiver, assignee or trustee in bankruptcy or reorganization is
hereby authorized by each of the Securityholders to make such
payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the
Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each
predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except
as a result of negligence or bad faith.
Nothing herein contained shall be construed to
authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities
or the rights of any holder thereof or to authorize the Trustee
35
to vote in respect of the claim of any Securityholder in any such
proceeding.
All rights of action and of asserting claims under
this Indenture, or under any of the Securities, may be enforced
by the Trustee without the possession of any of the Securities,
or the production thereof in any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by
the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall be for the
ratable benefit of the holders of the Securities.
In any proceedings brought by the Trustee (and also
any proceedings involving the interpretation of any provision of
this Indenture to which the Trustee shall be a party) the Trustee
shall be held to represent all the holders of the Securities, and
it shall not be necessary to make any holders of the Securities
parties to any such proceedings.
SECTION 5.03. Application of Moneys Collected by
Trustee.
Any moneys collected by the Trustee shall be applied
in the order following, at the date or dates fixed by the Trustee
for the distribution of such moneys, upon presentation of the
Securities in respect of which moneys have been collected, and
stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses of
collection applicable to the Securities and reasonable
compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its
negligence or bad faith;
Second: To the payment of all Senior Indebtedness of
the Company if and to the extent required by Article Fifteen;
Third: To the payment of the amounts then due and
unpaid upon Securities for principal of (and premium, if any) and
interest on the Securities, in respect of which or for the
benefit of which money has been collected, ratably, without
preference of priority of any kind, according to the amounts due
on such Securities for principal (and premium, if any) and
interest, respectively; and
Fourth: To the Company.
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SECTION 5.04. Proceedings by Securityholders.
No holder of any Security shall have any right by
virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon
or under or with respect to this Indenture or for the appointment
of a receiver or trustee, or for any other remedy hereunder,
unless such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance
thereof with respect to the Securities specifying such Event of
Default, as hereinbefore provided, and unless also the holders of
not less than 25% in aggregate principal amount of the Securities
then outstanding shall have made written request upon the Trustee
to institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs,
expenses and liabilities to be incurred therein or thereby, and
the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such
action, suit or proceeding, it being understood and intended, and
being expressly covenanted by the taker and holder of every
Security with every other taker and holder and the Trustee, that
no one or more holders of Securities shall have any right in any
manner whatever by virtue of or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of any
other holder of Securities, or to obtain or seek to obtain
priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of
all holders of Securities.
Notwithstanding any other provisions in this
Indenture, however, the right of any holder of any Security to
receive payment of the principal of (premium, if any) and
interest on such Security, on or after the same shall have become
due and payable, or to institute suit for the enforcement of any
such payment, shall not be impaired or affected without the
consent of such holder and by accepting a Security hereunder it
is expressly understood, intended and covenanted by the taker and
holder of every Security with every other such taker and holder
and the Trustee, that no one or more holders of Securities shall
have any right in any manner whatsoever by virtue or by availing
of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other Securities, or
to obtain or seek to obtain priority over or preference to any
other such holder, or to enforce any right under this Indenture,
except in the manner herein provided and for the equal, ratable
and common benefit of all holders of Securities. For the
protection and enforcement of the provisions of this Section,
each and every Securityholder and the Trustee shall be entitled
to such relief as can be given either at law or in equity.
37
The Company and the Trustee acknowledge that pursuant
to the Declaration, the holders of Capital Securities are
entitled, in the circumstances and subject to the limitations set
forth therein, to commence a Direct Action with respect to any
Event of Default under this Indenture and the Securities.
SECTION 5.05. Proceedings by Trustee.
In case an Event of Default occurs with respect to
Securities and is continuing, the Trustee may in its discretion
proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by
proceeding in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this
Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.06. Remedies Cumulative and Continuing.
Except as provided in the last paragraph of Section
2.08, all powers and remedies given by this Article Five to the
Trustee or to the Securityholders shall, to the extent permitted
by law, be deemed cumulative and not exclusive of any other
powers and remedies available to the Trustee or the holders of
the Securities, by judicial proceedings or otherwise, to enforce
the performance or observance of the covenants and agreements
contained in this Indenture or otherwise established with respect
to the Securities, and no delay or omission of the Trustee or of
any holder of any of the Securities to exercise any right or
power accruing upon any Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or shall be
construed to be a waiver of any such default or an acquiescence
therein; and, subject to the provisions of Section 5.04, every
power and remedy given by this Article V or by law to the Trustee
or to the Securityholders may be exercised from time to time, and
as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.07. Direction of Proceedings and Waiver of
Defaults by Majority of Securityholders.
The holders of a majority in aggregate principal
amount of the Securities at the time outstanding shall have the
right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however,
that (subject to the provisions of Section 6.01) the Trustee
shall have the right to decline to follow any such direction if
the Trustee shall determine that the action so directed would be
38
unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines
that the action or proceeding so directed may not lawfully be
taken or if the Trustee in good faith by its board of directors
or trustees, executive committee, or a trust committee of
directors or trustees and/or Responsible Officers shall determine
that the action or proceedings so directed would involve the
Trustee in personal liability. Prior to any declaration
accelerating the maturity of the Securities, the holders of a
majority in aggregate principal amount of the Securities at the
time outstanding may on behalf of the holders of all of the
Securities waive any past default or Event of Default and its
consequences except a default (a) in the payment of principal of
or premium, if any, or interest on any of the Securities or (b)
in respect of covenants or provisions hereof which cannot be
modified or amended without the consent of the holder of each
Security affected; provided, however, that if the Securities are
held by Property Trustee, such waiver or modification to such
waiver shall not be effective until the holders of a majority in
aggregate liquidation amount of Trust Securities shall have
consented to such waiver or modification to such waiver; provided
further, that if the consent of the holder of each outstanding
Security is required, such waiver shall not be effective until
each holder of the Trust Securities shall have consented to such
waiver. Upon any such waiver, the default covered thereby shall
be deemed to be cured for all purposes of this Indenture and the
Company, the Trustee and the holders of the Securities shall be
restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived
as permitted by this Section 5.07, said default or Event of
Default shall for all purposes of the Securities and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.08. Notice of Defaults.
The Trustee shall, within 90 days after the occurrence
of a default with respect to the Securities, mail to all
Securityholders, as the names and addresses of such holders
appear upon the Security register, notice of all defaults known
to the Trustee, unless such defaults shall have been cured before
the giving of such notice (the term "defaults" for the purpose of
this Section 5.08 being hereby defined to be the events specified
in clauses (a), (b), (c), (d) and (e) of Section 5.01, not
including periods of grace, if any, provided for therein, and
irrespective of the giving of written notice specified in clause
(c) of Section 5.01); and provided that, except in the case of
default in the payment of the principal of or premium, if any, or
interest on any of the Securities, the Trustee shall be protected
in withholding such notice if and so long as the board of
39
directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the
interests of the Securityholders; and provided further, that in
the case of any default of the character specified in Section
5.01(c) no such notice to Securityholders shall be given until at
least 60 days after the occurrence thereof but shall be given
within 90 days after such occurrence.
SECTION 5.09. Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder
of any Security by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture,
or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 5.09 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in aggregate principal amount of the
Securities outstanding, or to any suit instituted by any
Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security
against the Company on or after the same shall have become due
and payable.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.01. Duties and Responsibilities of Trustee.
With respect to the holders of the Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of
Default and after the curing or waiving of all Events of Default
which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture.
In case an Event of Default has occurred (which has not been
cured or waived), the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man
would exercise or use under the circumstances in the conduct of
his own affairs.
40
No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action,
its own negligent failure to act or its own willful misconduct,
except that
(a) prior to the occurrence of an Event of Default and
after the curing or waiving of all Events of
Default which may have occurred
(1) the duties and obligations of the Trustee
shall be determined solely by the express
provisions of this Indenture, and the
Trustee shall not be liable except for the
performance of such duties and obligations
as are specifically set forth in this
Indenture, and no implied covenants or
obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on the part of
the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and
the correctness of the opinions expressed
therein, upon any certificates or opinions
furnished to the Trustee and conforming to
the requirements of this Indenture; but, in
the case of any such certificates or
opinions which by any provision hereof are
specifically required to be furnished to the
Trustee, the Trustee shall be under a duty
to examine the same to determine whether or
not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible
Officer or Responsible Officers, unless it shall
be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in
good faith, in accordance with the direction of
the Securityholders pursuant to Section 5.07,
relating to the time, method and place of
conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture;
and
(d) none of the provisions contained in this Indenture
shall require the Trustee to expend or risk its
41
own funds or otherwise incur personal financial
liability in the performance of any of its duties
or in the exercise of any of its rights or
powers, if there is reasonable ground for
believing that the repayment of such funds or
liability is not reasonably assured to it under
the terms of this Indenture or adequate indemnity
against such risk is not reasonably assured to
it.
SECTION 6.02. Reliance on Documents, Opinions, etc.
Except as otherwise provided in Section 6.01:
(a) the Trustee may rely and shall be protected in
acting or refraining from acting upon any
resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order,
bond, note, debenture or other paper or document
believed by it to be genuine and to have been
signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the
Company mentioned herein may be sufficiently
evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein
specifically prescribed); and any Board Resolution
may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant
Secretary of the Company;
(c) the Trustee may consult with counsel of its
selection and any advice or Opinion of Counsel
shall be full and complete authorization and
protection in respect of any action taken or
suffered omitted by it hereunder in good faith
and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it
by this Indenture at the request, order or
direction of any of the Securityholders, pursuant
to the provisions of this Indenture, unless such
Securityholders shall have offered to the Trustee
security or indemnity reasonably satisfactory to
it against the costs, expenses and liabilities
which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action
taken or omitted by it in good faith and believed
by it to be authorized or within the discretion or
42
rights or powers conferred upon it by this
Indenture; nothing contained herein shall,
however, relieve the Trustee of the obligation,
upon the occurrence of an Event of Default (that
has not been cured or waived), to exercise such
of the rights and powers vested in it by this
Indenture, and to use the same degree of care and
skill in their exercise, as a prudent man would
exercise or use under the circumstances in the
conduct of his own affairs;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in
any resolution, certificate, statement,
instrument, opinion, report, notice, request,
consent, order, approval, bond, debenture, coupon
or other paper or document, unless requested in
writing to do so by the holders of a majority in
aggregate principal amount of the outstanding
Securities; provided, however, that if the payment
within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be
incurred by it in the making of such investigation
is, in the opinion of the Trustee, not reasonably
assured to the Trustee by the security afforded to
it by the terms of this Indenture, the Trustee may
require reasonable indemnity against such expense
or liability as a condition to so proceeding; and
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder
either directly or by or through agents
(including any Authenticating Agent) or
attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on
the part of any such agent or attorney appointed
by it with due care.
SECTION 6.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities
(except in the certificate of authentication of the Trustee or
the Authenticating Agent) shall be taken as the statements of the
Company and the Trustee and the Authenticating Agent assume no
responsibility for the correctness of the same. The Trustee and
the Authenticating Agent make no representations as to the
validity or sufficiency of this Indenture or of the Securities.
The Trustee and the Authenticating Agent shall not be accountable
for the use or application by the Company of any Securities or
the proceeds of any Securities authenticated and delivered by the
Trustee or the Authenticating Agent in conformity with the
provisions of this Indenture. The Trustee shall not be charged
with knowledge of any default or Event of Default under Section
43
5.01(a) or (b) relating to Other Debentures unless (i) a
Responsible Officer of the Trustee assigned to its Principal
Office shall have actual knowledge thereof or (ii) the Company,
any Securityholder or the holder of any Other Debenture shall
have given the Trustee written notice thereof in accordance with
Section 13.04.
SECTION 6.04. Trustee, Authenticating Agent, Paying
Agents, Transfer Agents or Registrar May
Own Securities.
The Trustee or any Authenticating Agent or any paying
agent or any transfer agent or any Security registrar, in its
individual or any other capacity, may become the owner or pledgee
of Securities with the same rights it would have if it were not
Trustee, Authenticating Agent, paying agent, transfer agent or
Security registrar.
SECTION 6.05. Moneys to be Held in Trust.
Subject to the provisions of Section 11.04, all moneys
received by the Trustee or any paying agent shall, until used or
applied as herein provided, be held in trust for the purpose for
which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee and any
paying agent shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed in
writing with the Company. So long as no Event of Default shall
have occurred and be continuing, all interest allowed on any such
moneys shall be paid from time to time upon the written order of
the Company, signed by the Chairman of the Board of Directors,
the President or a Vice President or the Treasurer or an
Assistant Treasurer of the Company.
SECTION 6.06. Compensation and Expenses of Trustee.
The Company, as issuer of the Securities, covenants
and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to, such compensation as shall be
agreed to in writing between the Company and the Trustee (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Company
will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all Persons not regularly
in its employ) except any such expense, disbursement or advance
as may arise from its negligence or bad faith. The Company also
covenants to indemnify each of the Trustee and any predecessor
Trustee (and its officers, agents, directors and employees) for,
and to hold them harmless against, any and all loss, damage,
44
claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence
or bad faith on the part of the Trustee and arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim of liability in the premises. The obligations of the
Company under this Section 6.06 to compensate and indemnify the
Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional
indebtedness hereunder. Such additional indebtedness shall be
secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such,
except funds held in trust for the benefit of the holders of
particular Securities.
Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses or
renders services in connection with an Event of Default specified
in Section 5.01(d) or Section 5.01(e), the expenses (including
the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses
of administration under any applicable federal or state
bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the
termination of this Indenture.
SECTION 6.07. Officers' Certificate as Evidence.
Except as otherwise provided in Sections 6.01 and
6.02, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a
matter be proved or established prior to taking or omitting any
action hereunder, such matter (unless other evidence in respect
thereof is herein specifically prescribed) may, in the absence of
negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such certificate, in
the absence of negligence or bad faith on the part of the
Trustee, shall be full warrant to the Trustee for any action
taken or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 6.08. Conflicting Interest of Trustee.
If the Trustee has or shall acquire any "conflicting
interest" within the meaning of Section 310(b) of the Trust
Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust
Indenture Act, subject to the penultimate paragraph thereof.
45
SECTION 6.09. Eligibility of Trustee.
The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the
United States of America or any state or territory thereof or of
the District of Columbia or a corporation or other Person
permitted to act as trustee by the Commission authorized under
such laws to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000) and subject to supervision or examination by
federal, state, territorial, or District of Columbia authority.
If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this
Section 6.09 the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control
with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09,
the Trustee shall resign immediately in the manner and with the
effect specified in Section 6.10.
SECTION 6.10. Resignation or Removal of Trustee.
(a) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign by giving
written notice of such resignation to the Company
and by mailing notice thereof to the holders of
the Securities at their addresses as they shall
appear on the Security register. Upon receiving
such notice of resignation, the Company shall
promptly appoint a successor trustee or trustees
by written instrument, in duplicate, one copy of
which instrument shall be delivered to the
resigning Trustee and one copy to the successor
trustee. If no successor trustee shall have been
so appointed and have accepted appointment within
60 days after the mailing of such notice of
resignation to the affected Securityholders, the
resigning Trustee may petition any court of
competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has
been a bona fide holder of a Security for at least
six months may, subject to the provisions of
Section 5.09, on behalf of himself and all others
similarly situated, petition any such court for
the appointment of a successor trustee. Such
46
court may thereupon, after such notice, if any,
as it may deem proper and prescribe, appoint a
successor trustee.
(b) In case at any time any of the following shall
occur:
(1) the Trustee shall fail to comply with the
provisions of Section 6.08 after written
request therefor by the Company or by any
Securityholder who has been a bona fide
holder of a Security or Securities for at
least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section
6.09 and shall fail to resign after written
request therefor by the Company or by any
such Securityholder, or
(3) the Trustee shall become incapable of
acting, or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or
of its property shall be appointed, or any
public officer shall take charge or control
of the Trustee or of its property or affairs
for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may remove
the Trustee and appoint a successor trustee by
written instrument, in duplicate, one copy of
which instrument shall be delivered to the
Trustee so removed and one copy to the successor
trustee, or, subject to the provisions of Section
5.09, any Securityholder who has been a bona fide
holder of a Security for at least six months may,
on behalf of himself and all others similarly
situated, petition any court of competent
jurisdiction for the removal of the Trustee and
the appointment of a successor trustee. Such
court may thereupon, after such notice, if any,
as it may deem proper and prescribe, remove the
Trustee and appoint a successor trustee.
(c) Upon prior written notice to the Company and the
Trustee, the holders of a majority in aggregate
principal amount of the Securities at the time
outstanding may at any time remove the Trustee
and nominate a successor trustee, which shall be
deemed appointed as successor trustee unless
within 10 days after such nomination the Company
47
objects thereto or if no successor trustee shall
have been so appointed and shall have accepted
appointment within 30 days after such removal, in
which case the Trustee so removed or any
Securityholder, upon the terms and conditions and
otherwise as in subsection (a) of this Section
6.10 provided, may petition any court of
competent jurisdiction for an appointment of a
successor trustee.
(d) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to
any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment
by the successor trustee as provided in Section
6.11.
SECTION 6.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided in Section
6.10 shall execute, acknowledge and deliver to the Company and to
its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the
retiring trustee shall become effective and such successor
trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations
of its predecessor hereunder, with like effect as if originally
named as trustee herein; but, nevertheless, on the written
request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of Section 6.06, execute and deliver
an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act and shall duly
assign, transfer and deliver to such successor trustee all
property and money held by such retiring trustee thereunder. Upon
request of any such successor trustee, the Company shall execute
any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or
collected by such trustee to secure any amounts then due it
pursuant to the provisions of Section 6.06.
No successor trustee shall accept appointment as
provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the
provisions of Section 6.08 and eligible under the provisions of
Section 6.09.
Upon acceptance of appointment by a successor trustee
as provided in this Section 6.11, the Company shall mail notice
of the succession of such trustee hereunder to the holders of
Securities at their addresses as they shall appear on the
48
Security register. If the Company fails to mail such notice
within 10 days after the acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice
to be mailed at the expense of the Company.
SECTION 6.12. Succession by Merger, etc.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor
of the Trustee hereunder without the execution or filing of any
paper or any further act on the part of any of the parties
hereto.
In case at the time such successor to the Trustee
shall succeed to the trusts created by this Indenture any
Securities shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such
Securities so authenticated; and in case at that time any of the
Securities shall not have been authenticated, any successor to
the Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor
trustee; and in all such cases such certificates shall have the
full force which the Securities or this Indenture elsewhere
provides that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate
Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or
consolidation.
SECTION 6.13. Limitation on Rights of Trustee as a
Creditor.
The Trustee shall comply with Section 311(a) of the
Trust Indenture Act, excluding any creditor relationship
described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent included therein.
SECTION 6.14. Authenticating Agents.
There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Company with
power to act on its behalf and subject to its direction in the
authentication and delivery of Securities issued upon exchange or
transfer thereof as fully to all intents and purposes as though
49
any such Authenticating Agent had been expressly authorized to
authenticate and deliver Securities; provided, that the Trustee
shall have no liability to the Company for any acts or omissions
of the Authenticating Agent with respect to the authentication
and delivery of Securities. Any such Authenticating Agent shall
at all times be a corporation organized and doing business under
the laws of the United States or of any state or territory
thereof or of the District of Columbia authorized under such laws
to act as Authenticating Agent, having a combined capital and
surplus of at least $50,000,000 and being subject to supervision
or examination by federal, state, territorial or District of
Columbia authority. If such corporation publishes reports of
condition at least annually pursuant to law or the requirements
of such authority, then for the purposes of this Section 6.14 the
combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately
in the manner and with the effect herein specified in this
Section.
Any corporation into which any Authenticating Agent
may be merged or converted or with which it may be consolidated,
or any corporation resulting from any merger, consolidation or
conversion to which any Authenticating Agent shall be a party, or
any corporation succeeding to the corporate trust business of any
Authenticating Agent, shall be the successor of such
Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.14 without the execution
or filing of any paper or any further act on the part of the
parties hereto or such Authenticating Agent.
Any Authenticating Agent may at any time resign by
giving written notice of resignation to the Trustee and to the
Company. The Trustee may at any time terminate the agency of any
Authenticating Agent by giving written notice of termination to
such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at
any time any Authenticating Agent shall cease to be eligible
under this Section 6.14, the Trustee may, and upon the request of
the Company shall, promptly appoint a successor Authenticating
Agent eligible under this Section 6.14, shall give written notice
of such appointment to the Company and shall mail notice of such
appointment to all Securityholders as the names and addresses of
such holders appear on the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and
responsibilities of its predecessor hereunder, with like effect
as if originally named as Authenticating Agent herein.
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The Company, as borrower, agrees to pay to any
Authenticating Agent from time to time reasonable compensation
for its services. Any Authenticating Agent shall have no
responsibility or liability for any action taken by it as such in
accordance with the directions of the Trustee.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
SECTION 7.01. Action by Securityholders.
Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount
of the Securities may take any action (including the making of
any demand or request, the giving of any notice, consent or
waiver or the taking of any other action) the fact that at the
time of taking any such action the holders of such specified
percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed
by such Securityholders in person or by agent or proxy appointed
in writing, or (b) by the record of such holders of Securities
voting in favor thereof at any meeting of such Securityholders
duly called and held in accordance with the provisions of Article
Eight, or (c) by a combination of such instrument or instruments
and any such record of such a meeting of such Securityholders.
If the Company shall solicit from the Securityholders
any request, demand, authorization, direction, notice, consent,
waiver or other action, the Company may, at its option, as
evidenced by an Officers' Certificate, fix in advance a record
date for the determination of Securityholders entitled to give
such request, demand, authorization, direction, notice, consent,
waiver or other action or to revoke any such action, but the
Company shall have no obligation to do so. If such a record date
is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation may be given before
or after the record date, but only the Securityholders of record
at the close of business on the record date shall be deemed to be
Securityholders for the purposes of determining whether
Securityholders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent,
waiver or other action, and for that purpose the Outstanding
Securities shall be computed as of the record date; provided,
however, that no such authorization, agreement or consent by such
Securityholders on the record date shall be deemed effective
unless it shall become effective pursuant to the provisions of
this Indenture not later than six months after the record date.
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SECTION 7.02. Proof of Execution by Securityholders.
Subject to the provisions of Sections 6.01, 6.02 and
8.05, proof of the execution of any instrument by a
Securityholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may
be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee. The ownership of Securities shall be
proved by the Security Register or by a certificate of the
Security registrar. The Trustee may require such additional proof
of any matter referred to in this Section as it shall deem
necessary.
The record of any Securityholders' meeting shall be
proved in the manner provided in Section 8.06.
SECTION 7.03. Who Are Deemed Absolute Owners.
Prior to due presentment for registration of transfer
of any Security, the Company, the Trustee, any Authenticating
Agent, any paying agent, any transfer agent and any Security
registrar may deem the Person in whose name such Security shall
be registered upon the Security Register to be, and may treat him
as, the owner of such Security (whether or not such Security
shall be overdue) for the purpose of receiving payment of or on
account of the principal of and premium, if any, and (subject to
Section 2.06) interest on such Security and for all other
purposes; and neither the Company nor the Trustee nor any
Authenticating Agent nor any paying agent nor any transfer agent
nor any Security registrar shall be affected by any notice to the
contrary. All such payments so made to any holder for the time
being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Security.
SECTION 7.04. Securities Owned by Company Deemed Not
Outstanding.
In determining whether the holders of the requisite
aggregate principal amount of Securities have concurred in any
direction, consent or waiver under this Indenture, Securities
which are owned by the Company or any other obligor on the
Securities or by any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company, except Securities held by the Trust, or any other
obligor on the Securities shall be disregarded and deemed not to
be outstanding for the purpose of any such determination;
provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent or
waiver, only Securities which the Trustee actually knows are so
owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as outstanding for the
52
purposes of this Section 7.04 if the pledgee shall establish to
the satisfaction of the Trustee the pledgee's right to vote such
Securities and that the pledgee is not the Company or any such
other obligor or Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Company or any such other obligor. In the case of a dispute as to
such right, any decision by the Trustee taken upon the advice of
counsel shall be full protection to the Trustee.
SECTION 7.05. Revocation of Consents; Future Holders
Bound.
At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 7.01, of the taking of any
action by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in
connection with such action, any holder of a Security (or any
Security issued in whole or in part in exchange or substitution
therefor) the serial number of which is shown by the evidence to
be included in the Securities the holders of which have consented
to such action may, by filing written notice with the Trustee at
its Principal Office and upon proof of holding as provided in
Section 7.02, revoke such action so far as concerns such Security
(or so far as concerns the principal amount represented by any
exchanged or substituted Security). Except as aforesaid any such
action taken by the holder of any Security shall be conclusive
and binding upon such holder and upon all future holders and
owners of such Security, and of any Security issued in exchange
or substitution therefor, irrespective of whether or not any
notation in regard thereto is made upon such Security or any
Security issued in exchange or substitution therefor.
ARTICLE VIII
SECURITYHOLDERS' MEETINGS
SECTION 8.01. Purposes of Meetings.
A meeting of Securityholders may be called at any time
and from time to time pursuant to the provisions of this Article
Eight for any of the following purposes:
(a) to give any notice to the Company or to the
Trustee, or to give any directions to the
Trustee, or to consent to the waiving of any
Default hereunder and its consequences, or to
take any other action authorized to be taken by
Securityholders pursuant to any of the provisions
of Article Five;
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(b) to remove the Trustee and nominate a successor
trustee pursuant to the provisions of Article Six;
(c) to consent to the execution of an indenture or
indentures supplemental hereto pursuant to the
provisions of Section 9.02; or
(d) to take any other action authorized to be taken
by or on behalf of the holders of any specified
aggregate principal amount of such Securities
under any other provision of this Indenture or
under applicable law.
SECTION 8.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section 8.01, to
be held at such time and at such place in the Borough of
Manhattan, The City of New York, as the Trustee shall determine.
Notice of every meeting of the Securityholders, setting forth the
time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be mailed to
holders of Securities at their addresses as they shall appear on
the Securities Register. Such notice shall be mailed not less
than 20 nor more than 180 days prior to the date fixed for the
meeting.
SECTION 8.03. Call of Meetings by Company or
Securityholders.
In case at any time the Company pursuant to a
resolution of the Board of Directors, or the holders of at least
10% in aggregate principal amount of the Securities then
outstanding, shall have requested the Trustee to call a meeting
of Securityholders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have mailed the notice of such meeting
within 20 days after receipt of such request, then the Company or
such Securityholders may determine the time and the place in the
Borough of Manhattan, The City of New York for such meeting and
may call such meeting to take any action authorized in Section
8.01, by mailing notice thereof as provided in Section 8.02.
SECTION 8.04. Qualifications for Voting.
To be entitled to vote at any meeting of
Securityholders a Person shall be (a) a holder of one or more
Securities or (b) a Person appointed by an instrument in writing
as proxy by a holder of one or more Securities. The only Persons
who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee
54
and its counsel and any representatives of the Company and its
counsel.
SECTION 8.05. Regulations.
Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it
may deem advisable for any meeting of Securityholders, in regard
to proof of the holding of Securities and of the appointment of
proxies, and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall
think fit.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting
shall have been called by the Company or by Securityholders as
provided in Section 8.03, in which case the Company or the
Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by
majority vote of the meeting.
Subject to the provisions of Section 8.04, at any
meeting each holder of Securities or proxy therefor shall be
entitled to one vote for each $1,000 principal amount of
Securities held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any
Security challenged as not outstanding and ruled by the chairman
of the meeting to be not outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Securities
held by him or instruments in writing as aforesaid duly
designating him as the person to vote on behalf of other
Securityholders. Any meeting of Securityholders duly called
pursuant to the provisions of Section 8.02 or 8.03 may be
adjourned from time to time by a majority of those present,
whether or not constituting a quorum, and the meeting may be held
as so adjourned without further notice.
The Persons entitled to vote a majority in principal
amount of the outstanding Securities shall constitute a quorum
for a meeting of Holders; provided, however, that if any action
is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action
which may be given by the Holders of not less than a specified
percentage in principal amount of the outstanding Securities, the
Persons holding or representing such specified percentage in
principal amount of the outstanding Securities will constitute a
quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at
the request of Holders, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as
55
determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such
adjourned meeting. Notice of the reconvening of any adjourned
meeting shall be given as provided in Section 8.02, except that
such notice need be given only once not less than five days prior
to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal
amount of the outstanding Securities which shall constitute a
quorum.
Except as limited by the first proviso to the first
paragraph of Section 9.02, any resolution presented to a meeting
or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the
holders of a majority in principal amount of the outstanding
Securities; provided, however, that, except as limited by the
first proviso to the first paragraph of Section 9.02, any
resolution with respect to any consent, waiver, request, demand,
notice, authorization, direction or other action which this
Indenture expressly provides may be given by the Holders of not
less than a specified percentage in principal amount of the
outstanding Securities may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is
present as aforesaid only by the affirmative vote of the Holders
of not less than such specified percentage in principal amount of
the outstanding Securities.
Any resolution passed or decision taken at any meeting
of Holders duly held in accordance with this Section shall be
binding on all the Holders whether or not present or represented
at the meeting.
SECTION 8.06. Voting.
The vote upon any resolution submitted to any meeting
of holders of Securities shall be by written ballots on which
shall be subscribed the signatures of such holders or of their
representatives by proxy and the serial number or numbers of the
Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and
who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting
of Securityholders shall be prepared by the secretary of the
meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having
56
knowledge of the facts setting forth a copy of the notice of the
meeting and showing that said notice was mailed as provided in
Section 8.02. The record shall show the serial numbers of the
Securities voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the
duplicates shall be delivered to the Company and the other to the
Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. The holders of
the Series A Capital Securities and the Series B Capital
Securities shall vote or consent for all purposes as a single
class.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without Consent of Securityholders.
The Company and the Trustee may from time to time and
at any time amend the Indenture, without the consent of the
Securityholders, for one or more of the following purposes:
(a) to evidence the succession of another corporation
to the Company, or successive successions, and
the assumption by the successor corporation of
the covenants, agreements and obligations of the
Company pursuant to Article Ten hereof;
(b) to add to the covenants of the Company such
further covenants, restrictions or conditions for
the protection of the Securityholders as the Board
of Directors and the Trustee shall consider to be
for the protection of the Securityholders, and to
make the occurrence, or the occurrence and
continuance, of a default in any of such
additional covenants, restrictions or conditions a
Default or an Event of Default permitting the
enforcement of all or any of the remedies provided
in this Indenture as herein set forth; provided,
however, that in respect of any such additional
covenant, restriction or condition such amendment
may provide for a particular period of grace after
default (which period may be shorter or longer
than that allowed in the case of other Defaults)
or may provide for an immediate enforcement upon
such default or may limit the remedies available
to the Trustee upon such default;
57
(c) to provide for the issuance under this Indenture
of Securities in coupon form (including
Securities registrable as to principal only) and
to provide for exchangeability of such Securities
with the Securities issued hereunder in fully
registered form and to make all appropriate
changes for such purpose;
(d) to cure any ambiguity or to correct or supplement
any provision contained herein or in any
supplemental indenture which may be defective or
inconsistent with any other provision contained
herein or in any supplemental indenture, or to
make such other provisions in regard to matters or
questions arising under this Indenture; provided
that any such action shall not materially
adversely affect the interests of the holders of
the Securities;
(e) to evidence and provide for the acceptance of
appointment hereunder by a successor trustee with
respect to the Securities;
(f) to make provision for transfer procedures,
certification, book-entry provisions, the form of
restricted securities legends, if any, to be
placed on Securities, and all other matters
required pursuant to Section 2.07 or otherwise
necessary, desirable or appropriate in connection
with the issuance of Securities to holders of
Capital Securities in the event of a distribution
of Securities by ALBANK Capital Trust following a
Dissolution Event;
(g) to qualify or maintain qualification of this
Indenture under the Trust Indenture Act; or
(h) to make any change that does not adversely affect
the rights of any Securityholder in any material
respect.
The Trustee is hereby authorized to join with the
Company in the execution of any supplemental indenture to effect
such amendment, to make any further appropriate agreements and
stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder,
but the Trustee shall not be obligated to, but may in its
discretion, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
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Any amendment to this Indenture authorized by the
provisions of this Section 9.01 may be executed by the Company
and the Trustee without the consent of the holders of any of the
Securities at the time outstanding, notwithstanding any of the
provisions of Section 9.02.
SECTION 9.02. With Consent of Securityholders.
With the consent (evidenced as provided in Section
7.01) of the holders of a majority in aggregate principal amount
of the Securities at the time outstanding, the Company, when
authorized by a Board Resolution, and the Trustee may from time
to time and at any time amend this Indenture for the purpose of
adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any
manner the rights of the holders of the Securities; provided,
however, that no such amendment shall without the consent of the
holders of each Security then outstanding and affected thereby
(i) change the Maturity Date of any Security, or reduce the rate
or extend the time of payment of interest thereon (except as
contemplated by Article Sixteen), or reduce the principal amount
thereof, or reduce any amount payable on prepayment thereof, or
make the principal thereof or any interest or premium thereon
payable in any coin or currency other than that provided in the
Securities, or impair or affect the right of any Securityholder
to institute suit for payment thereof, or (ii) reduce the
aforesaid percentage of Securities the holders of which are
required to consent to any such amendment to this Indenture,
provided, however, that if the Securities are held by ALBANK
Capital Trust, such amendment shall not be effective until the
holders of a majority in liquidation amount of Trust Securities
shall have consented to such amendment; provided, further, that
if the consent of the holder of each outstanding Security is
required, such amendment shall not be effective until each holder
of the Trust Securities shall have consented to such amendment.
Upon the request of the Company accompanied by a copy
of a resolution of the Board of Directors certified by its
Secretary or Assistant Secretary authorizing the execution of any
supplemental indenture affecting such amendment, and upon the
filing with the Trustee of evidence of the consent of
Securityholders as aforesaid, the Trustee shall join with the
Company in the execution of such supplemental indenture unless
such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
Promptly after the execution by the Company and the
Trustee of any supplemental indenture pursuant to the provisions
of this Section, the Trustee shall transmit by mail, first class
postage prepaid, a notice, prepared by the Company, setting forth
59
in general terms the substance of such supplemental indenture, to
the Securityholders as their names and addresses appear upon the
Security Register. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
It shall not be necessary for the consent of the
Securityholders under this Section 9.02 to approve the particular
form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
SECTION 9.03. Compliance with Trust Indenture Act;
Effect of Supplemental Indentures.
Any supplemental indenture executed pursuant to the
provisions of this Article Nine shall comply with the Trust
Indenture Act. Upon the execution of any supplemental indenture
pursuant to the provisions of this Article Nine, this Indenture
shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights,
obligations, duties and immunities under this Indenture of the
Trustee, the Company and the holders of Securities shall
thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and
all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
SECTION 9.04. Notation on Securities.
Securities authenticated and delivered after the
execution of any supplemental indenture affecting such series
pursuant to the provisions of this Article Nine may bear a
notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or
the Trustee shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared and executed by the
Company, authenticated by the Trustee or the Authenticating Agent
and delivered in exchange for the Securities then outstanding.
SECTION 9.05. Evidence of Compliance of Supplemental
Indenture to be Furnished Trustee.
The Trustee, subject to the provisions of Sections
6.01 and 6.02, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant hereto complies with the requirements
of this Article Nine. The Trustee may receive an Opinion of
Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article is authorized or permitted by,
and
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conforms to, the terms of this Article and that it is proper for
the Trustee under the provisions of this Article to join in the
execution thereof.
ARTICLE X
CONSOLIDATION, CONVERSION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 10.01. Company May Consolidate, etc., on Certain
Terms.
Nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation, conversion or merger
of the Company with or into any other Person (whether or not
affiliated with the Company, as the case may be), or successive
consolidations, conversions or mergers in which the Company or
its successor or successors, as the case may be, shall be a party
or parties, or shall prevent any sale, conveyance, transfer or
lease of the property of the Company or its successor or
successors, as the case may be, as an entirety, or substantially
as an entirety, to any other Person (whether or not affiliated
with the Company or its successor or successors, as the case may
be) authorized to acquire and operate the same; provided, that
(a) the Company is the surviving Person, or the Person formed by
or surviving any such consolidation, conversion or merger (if
other than the Company) or to which such sale, conveyance,
transfer or lease of property is made is a Person organized and
existing under the laws of the United States or any State thereof
or the District of Columbia, and (b) upon any such consolidation,
conversion, merger, sale, conveyance, transfer or lease, the due
and punctual payment of the principal of (and premium, if any)
and interest on the Securities according to their tenor and the
due and punctual performance and observance of all the covenants
and conditions of this Indenture to be kept or performed by the
Company shall be expressly assumed, by supplemental indenture
(which shall conform to the provisions of the Trust Indenture
Act, as then in effect) satisfactory in form to the Trustee, and
executed and delivered to the Trustee by the Person formed by
such consolidation or conversion, or into which the Company shall
have been converted or merged, or by the Person which shall have
acquired such property, as the case may be, (c) after giving
effect to such consolidation, conversion, merger, sale,
conveyance, transfer or lease, no Default or Event of Default
shall have occurred and be continuing and (d) such consolidation,
conversion, merger, sale, conveyance, transfer or lease does not
cause the Securities to be downgraded by a nationally recognized
statistical rating organization.
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SECTION 10.02. Successor Corporation to be Substituted
for Company.
In case of any such consolidation, conversion, merger,
conveyance or transfer and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and premium, if any, and
interest on all of the Securities and the due and punctual
performance and observance of all of the covenants and conditions
of this Indenture to be performed or observed by the Company,
such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as
the party of the first part, and the Company thereupon shall be
relieved of any further liability or obligation hereunder or upon
the Securities. Such successor Person thereupon may cause to be
signed, and may issue either in its own name or in the name of
ALBANK Financial Corporation, any or all of the Securities
issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee or the Authenticating
Agent; and, upon the order of such successor Person instead of
the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee or the
Authenticating Agent shall authenticate and deliver any
Securities which previously shall have been signed and delivered
by the officers of the Company to the Trustee or the
Authenticating Agent for authentication, and any Securities which
such successor Person thereafter shall cause to be signed and
delivered to the Trustee or the Authenticating Agent for that
purpose. All the Securities so issued shall in all respects have
the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with
the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
SECTION 10.03. Opinion of Counsel to be Given Trustee.
The Trustee, subject to the provisions of Sections
6.01 and 6.02, may receive an Opinion of Counsel as conclusive
evidence that any consolidation, merger, sale, conveyance,
transfer or lease, and any assumption, permitted or required by
the terms of this Article Ten complies with the provisions of
this Article Ten.
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ARTICLE XI
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 11.01. Discharge of Indenture.
When (a) the Company shall deliver to the Trustee for
cancellation all Securities theretofore authenticated (other than
any Securities which shall have been destroyed, lost or stolen
and which shall have been replaced (as provided in Section 2.08))
and not theretofore cancelled, or (b) all the Securities not
theretofore cancelled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their
terms to become due and payable within one year or are to be
called for prepayment within one year under arrangements
satisfactory to the Trustee for the giving of notice of
prepayment, and the Company shall deposit or cause to be
deposited with the Trustee, in trust, funds sufficient to pay on
the Maturity Date or upon prepayment all of the Securities (other
than any Securities which shall have been destroyed, lost or
stolen and which shall have been replaced (as provided in Section
2.08)) not theretofore cancelled or delivered to the Trustee for
cancellation, including principal and premium, if any, and
interest due or to become due to the Maturity Date or prepayment
date, as the case may be, but excluding, however, the amount of
any moneys for the payment of principal of or premium, if any, or
interest on the Securities (1) theretofore repaid to the Company
in accordance with the provisions of Section 11.04, or (2) paid
to any State or to the District of Columbia pursuant to its
unclaimed property or similar laws, and if in either case the
Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be
of further effect except for the provisions of Sections 2.02,
2.07, 2.08, 3.01, 3.02, 3.04, 6.06, 6.10 and 11.04 hereof, which
shall survive until such Securities shall mature and be paid.
Thereafter, Sections 6.06, 6.10 and 11.04 shall survive, and the
Trustee, on demand of the Company accompanied by any Officers'
Certificate and an Opinion of Counsel and at the cost and expense
of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture, the Company,
however, hereby agreeing to reimburse the Trustee for any costs
or expenses thereafter reasonably and properly incurred by the
Trustee in connection with this Indenture or the Securities.
SECTION 11.02. Deposited Moneys and U.S. Government
Obligations to be Held in Trust by
Trustee.
Subject to the provisions of Section 11.04, all moneys
and U.S. Government Obligations deposited with the Trustee
pursuant to Sections 11.01 or 11.05 shall be held in trust and
applied by it to the payment, either directly or through any
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paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Securities for the
payment of which such moneys or U.S. Government Obligations have
been deposited with the Trustee, of all sums due and to become
due thereon for principal, premium, if any, and interest.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed
against the U.S. Government Obligations deposited pursuant to
Section 11.05 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law
is for the account of the holders of outstanding Securities.
SECTION 11.03. Paying Agent to Repay Moneys Held.
Upon the satisfaction and discharge of this Indenture
all moneys then held by any paying agent of the Securities (other
than the Trustee) shall, upon written demand of the Company, be
repaid to it or paid to the Trustee, and thereupon such paying
agent shall be released from all further liability with respect
to such moneys.
SECTION 11.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the Trustee or
any paying agent for payment of the principal of or premium, if
any, or interest on Securities and not applied but remaining
unclaimed by the holders of Securities for two years after the
date upon which the principal of or premium, if any, or interest
on such Securities, as the case may be, shall have become due and
payable, shall be repaid to the Company by the Trustee or such
paying agent on written demand; and the holder of any of the
Securities shall thereafter look only to the Company for any
payment which such holder may be entitled to collect and all
liability of the Trustee or such paying agent with respect to
such moneys shall thereupon cease.
SECTION 11.05. Defeasance Upon Deposit of Moneys or
U.S. Government Obligations.
The Company shall be deemed to have been Discharged
(as defined below) from its obligations with respect to the
Securities on the 91st day after the applicable conditions set
forth below have been satisfied:
(1) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee or the
Defeasance Agent (as defined below) as trust
funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the
holders of the Securities (i) money in an amount,
or (ii) U.S. Government Obligations which through
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the payment of interest and principal in respect
thereof in accordance with their terms will
provide, not later than one day before the due
date of any payment, money in an amount, or (iii)
a combination of (i) and (ii), sufficient, in the
opinion (with respect to (ii) and (iii)) of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee and the
Defeasance Agent, if any, to pay and discharge
each installment of principal of and interest and
premium, if any, on the outstanding Securities on
the dates such installments of principal,
interest or premium are due;
(2) if the Securities are then listed on any national
securities exchange, the Company shall have
delivered to the Trustee and the Defeasance
Agent, if any, an Opinion of Counsel to the
effect that the exercise of the option under this
Section 11.05 would not cause such Securities to
be delisted from such exchange;
(3) no Default or Event of Default with respect to
the Securities shall have occurred and be
continuing on the date of such deposit; and
(4) the Company shall have delivered to the Trustee
and the Defeasance Agent, if any, an Opinion of
Counsel to the effect that holders of the
Securities will not recognize income, gain or
loss for United States federal income tax
purposes as a result of the exercise of the
option under this Section 11.05 and will be
subject to United States federal income tax on
the same amount and in the same manner and at the
same times as would have been the case if such
option had not been exercised, and such opinion
shall be based on a statute so providing or be
accompanied by a private letter ruling to that
effect received from the United States Internal
Revenue Service or a revenue ruling pertaining to
a comparable form of transaction to that effect
published by the United States Internal Revenue
Service.
"Discharged" means that the Company shall be deemed to
have paid and discharged the entire indebtedness represented by,
and obligations under, the Securities and to have satisfied all
the obligations under this Indenture relating to the Securities
(and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging the same), except (A) the rights
of holders of Securities to receive, from the trust fund
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described in clause (1) above, payment of the principal of and
the interest and premium, if any, on the Securities when such
payments are due; (B) the Company's obligations with respect to
the Securities under Sections 2.02, 2.07, 2.08, 3.02, 5.02, 6.10
and 11.04; and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder.
"Defeasance Agent" means another financial institution
which is eligible to act as Trustee hereunder and which assumes
all of the obligations of the Trustee necessary to enable the
Trustee to act hereunder. In the event such a Defeasance Agent is
appointed pursuant to this Section, the following conditions
shall apply:
(1) the Trustee shall have approval rights over the
document appointing such Defeasance Agent and the
document setting forth such Defeasance Agent's
rights and responsibilities; and
(2) the Defeasance Agent shall provide verification to
the Trustee acknowledging receipt of sufficient
money and/or U. S. Government Obligations to meet
the applicable conditions set forth in this
Section 11.05.
ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
SECTION 12.01. Indenture and Securities Solely
Corporate Obligations.
No recourse for the payment of the principal of or
premium, if any, or interest on any Security, or for any claim
based thereon or otherwise in respect thereof, and no recourse
under or upon any obligation, covenant or agreement of the
Company in this Indenture, or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as
such, past, present or future, of the Company or of any successor
Person to the Company, either directly or through the Company or
any successor Person to the Company, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of
any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the
execution of this Indenture and the issue of the Securities.
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01. Successors.
All the covenants, stipulations, promises and
agreements in this Indenture contained by the Company shall bind
its successors and assigns whether so expressed or not.
SECTION 13.02. Official Acts by Successor Corporation.
Any act or proceeding by any provision of this
Indenture authorized or required to be done or performed by any
board, committee or officer of the Company shall and may be done
and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 13.03. Surrender of Company Powers.
The Company by instrument in writing executed by
authority of 2/3 (two-thirds) of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved
to the Company, and thereupon such power so surrendered shall
terminate both as to the Company, as the case may be, and as to
any successor Person.
SECTION 13.04. Addresses for Notices, etc.
Any notice or demand which by any provision of this
Indenture is required or permitted to be given or served by the
Trustee or by the holders of Securities on the Company may be
given or served by being deposited postage prepaid by registered
or certified mail in a post office letter box addressed (until
another address is filed by the Company with the Trustee for the
purpose) to the Company, 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxx
00000, Attention: General Counsel. Any notice, direction, request
or demand by any Securityholder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes,
if given or made in writing at the office of the Trustee,
addressed to the Trustee, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trustee Administration
Department (unless another address is provided by the Trustee to
the Company for the purpose).
Any notice or communication to a Holder shall be
mailed by first class mail to his or her address shown on the
register kept by the Registrar. Failure to mail a notice or
communication to a Holder or any defect in it shall not affect
its sufficiency with respect to other Holders.
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SECTION 13.05. Governing Law.
This Indenture and each Security shall be deemed to be
a contract made under the laws of the State of New York, and for
all purposes shall be governed by and construed in accordance
with the laws of said State, without regard to conflicts of laws
principles thereof.
SECTION 13.06. Evidence of Compliance with Conditions
Precedent.
Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this
Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that in the opinion of the signers all
conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Each certificate or opinion provided for in this
Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant provided for in this Indenture
(except certificates delivered pursuant to Section 3.05) shall
include (1) a statement that the person making such certificate
or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in
such certificate or opinion are based; (3) a statement that, in
the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition
has been complied with; and (4) a statement as to whether or not,
in the opinion of such person, such condition or covenant has
been complied with.
SECTION 13.07. Business Days.
In any case where the date of payment of principal of
or premium, if any, or interest on the Securities will not be a
Business Day, the payment of such principal of or premium, if
any, or interest on the Securities need not be made on such date
but may be made on the next succeeding Business Day, with the
same force and effect as if made on the date of payment and no
interest shall accrue for the period from and after such date.
SECTION 13.08. Trust Indenture Act to Control.
If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed
by Sections 310 to 317, inclusive, of the Trust Indenture Act of
1939, such imposed duties shall control.
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SECTION 13.09. Table of Contents, Headings, etc.
The table of contents and the titles and headings of
the articles and sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a
part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 13.10. Execution in Counterparts.
This Indenture may be executed in any number of
counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same
instrument.
SECTION 13.11. Separability.
In case any one or more of the provisions contained in
this Indenture or in the Securities shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any
other provisions of this Indenture or of the Securities, but this
Indenture and the Securities shall be construed as if such
invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 13.12. Assignment.
The Company will have the right at all times to assign
any of its respective rights or obligations under this Indenture
to a direct or indirect wholly owned Subsidiary of the Company,
provided that, in the event of any such assignment, the Company,
as the case may be, will remain liable for all such obligations.
Subject to the foregoing, the Indenture is binding upon and
inures to the benefit of the parties thereto and their respective
successors and assigns. This Indenture may not otherwise be
assigned by the parties hereto.
SECTION 13.13. Acknowledgement of Rights.
The Company acknowledges that, with respect to any
Securities held by ALBANK Capital Trust or a trustee of such
trust, if the Property Trustee of such Trust fails to enforce its
rights under this Indenture as the holder of the Securities held
as the assets of ALBANK Capital Trust any holder of Capital
Securities may institute legal proceedings directly against the
Company to enforce such Property Trustee's rights under this
Indenture without first instituting any legal proceedings against
such Property Trustee or any other Person or entity.
Notwithstanding the foregoing, if an Event of Default has
occurred and is continuing and such event is attributable to the
failure of the Company to pay principal of or premium, if any, or
69
interest on the Securities when due, the Company acknowledges
that a holder of Capital Securities may directly institute a
proceeding for enforcement of payment to such holder of the
principal of or premium, if any, or interest on the Securities
having a principal amount equal to the aggregate liquidation
amount of the Capital Securities of such holder on or after the
respective due date specified in the Securities.
ARTICLE XIV
PREPAYMENT OF SECURITIES -- MANDATORY AND
OPTIONAL SINKING FUND
SECTION 14.01. Special Event Prepayment.
If a Special Event has occurred and is continuing
then, notwithstanding Section 14.02(a) but subject to Section
14.02(c), the Company shall have the right at any time prior to
the Initial Optional Prepayment Date, upon not (i) less than 45
days' written notice to the Trustee, which notice shall be
accompanied by an Officers' Certificate certifying that a Special
Event entitling the Company to redeem the Securities pursuant to
this Section, has occurred and (ii) less than 30 days' nor more
than 60 days' written notice to the Securityholders, to prepay
the Securities, in whole (but not in part), within 90 days
following the occurrence of such Special Event at the Special
Event Prepayment Price. Following a Special Event, the Company
shall take such action as is necessary to promptly determine the
Special Event Prepayment Price, including without limitation the
appointment by the Company of a Quotation Agent. The Special
Event Prepayment Price shall be paid prior to 12:00 noon, New
York time, on the date of such prepayment or such earlier time as
the Company determines, provided that the Company shall deposit
with the Trustee an amount sufficient to pay the Special Event
Prepayment Price by 10:00 a.m., New York time, on the date such
Special Event Prepayment Price is to be paid. The Company shall
provide the Trustee with written notice of the Special Event
Prepayment Price promptly after the calculation thereof, which
notice shall include any calculation made by the Quotation Agent
in connection with the determination of the Special Event
Prepayment Price.
SECTION 14.02. Optional Prepayment by Company.
(a) Subject to the provisions of this Article
Fourteen, the Company shall have the right to prepay the
Securities, in whole or in part, from time to time, on or after
the Initial Optional Prepayment Date at the optional prepayment
prices set forth below (expressed as percentages of principal)
plus, in each case, accrued and unpaid interest thereon
(including Additional Interest and Compounded Interest, if any)
to the applicable date of prepayment (the "Optional Prepayment
70
Price") if prepaid during the 12-month period beginning June 6 of
the years indicated below.
Year Percentage
2007.......................... 104.635%
2008.......................... 104.172%
2009.......................... 103.708%
2010.......................... 103.245%
2011.......................... 102.781%
2012.......................... 102.318%
2013.......................... 101.854%
2014.......................... 101.391%
2015.......................... 100.927%
2016.......................... 100.464%
2017 and thereafter........... 100.000%
If the Securities are only partially prepaid pursuant
to this Section 14.02, the Securities will be prepaid pro rata or
by lot or by any other method utilized by the Trustee; provided,
that if at the time of prepayment the Securities are registered
as a Global Security, the Depositary shall determine, in
accordance with its procedures, the principal amount of
Securities held by each holder of a Security to be prepaid. The
Optional Prepayment Price shall be paid prior to 12:00 noon, New
York time, on the date of such prepayment or at such earlier time
as the Company determines, provided that the Company shall
deposit with the Trustee an amount sufficient to pay the Optional
Prepayment Price by 10:00 a.m., New York time, on the date such
Optional Prepayment Price is to be paid.
(b) Notwithstanding the first sentence of Section
14.02(a), upon the entry of an order for dissolution of the
ALBANK Capital Trust by a court of competent jurisdiction, the
Securities thereafter will be subject to optional prepayment, in
whole only, but not in part, on or after June 6, 2007, at the
optional prepayment prices set forth in Section 14.02 and
otherwise in accordance with this Article Fourteen.
(c) Any prepayment of Securities pursuant to Section
14.01 or Section 14.02 shall be subject to the receipt by the
Company of any required regulatory approval.
SECTION 14.03. No Sinking Fund.
The Securities are not entitled to the benefit of any
sinking fund.
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SECTION 14.04. Notice of Prepayment; Selection of
Securities.
In case the Company shall desire to exercise the right
to prepay all, or, as the case may be, any part of the Securities
in accordance with their terms, it shall fix a date for
prepayment and shall mail a notice of such prepayment at least 30
and not more than 60 days prior to the date fixed for prepayment
to the holders of Securities so to be prepaid as a whole or in
part at their last addresses as the same appear on the Security
Register. Such mailing shall be by first class mail. The notice
if mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Security
designated for prepayment as a whole or in part shall not affect
the validity of the proceedings for the prepayment of any other
Security.
Each such notice of prepayment shall specify the CUSIP
number of the Securities to be prepaid, the date fixed for
prepayment, the prepayment price at which the Securities are to
be prepaid (or the method by which such prepayment price is to be
calculated), the place or places of payment, that payment will be
made upon presentation and surrender of the Securities, that
interest accrued to the date fixed for prepayment will be paid as
specified in said notice, and that on and after said date
interest thereon or on the portions thereof to be prepaid will
cease to accrue. If less than all the Securities are to be
prepaid the notice of prepayment shall specify the numbers of the
Securities to be prepaid. In case any Security is to be prepaid
in part only, the notice of prepayment shall state the portion of
the principal amount thereof to be prepaid and shall state that
on and after the date fixed for prepayment, upon surrender of
such Security, a new Security or Securities in principal amount
equal to the unprepaid portion thereof will be issued.
By 10:00 a.m., New York time, on the prepayment date
specified in the notice of prepayment given as provided in this
Section, the Company will deposit with the Trustee or with one or
more paying agents an amount of money sufficient to prepay on the
prepayment date all the Securities so called for prepayment at
the appropriate Prepayment Price, together with accrued interest
to the date fixed for prepayment.
The Company will give the Trustee notice not less than
45 days prior to the prepayment date as to the aggregate
principal amount of Securities to be prepaid and the Trustee
shall select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Securities or portions thereof (in
integral multiples of $1,000, except as otherwise set forth in
the applicable form of Security) to be prepaid.
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SECTION 14.05. Payment of Securities Called for
Prepayment.
If notice of prepayment has been given as provided in
Section 14.04, the Securities or portions of Securities with
respect to which such notice has been given shall become due and
payable on the date and at the place or places stated in such
notice at the applicable Prepayment Price, together with interest
accrued to the date fixed for prepayment (subject to the rights
of holders of Securities on the close of business on a regular
record date in respect of an Interest Payment Date occurring on
or prior to the prepayment date), and on and after said date
(unless the Company shall default in the payment of such
Securities at the Prepayment Price, together with interest
accrued to said date) interest on the Securities or portions of
Securities so called for prepayment shall cease to accrue. On
presentation and surrender of such Securities at a place of
payment specified in said notice, the said Securities or the
specified portions thereof shall be prepaid by the Company at the
applicable Prepayment Price, together with interest accrued
thereon to the date fixed for prepayment (subject to the rights
of holders of Securities on the close of business on a regular
record date in respect of an Interest Payment Date occurring on
or prior to the prepayment date).
Upon presentation of any Security prepaid in part
only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder
thereof, at the expense of the Company, a new Security or
Securities of authorized denominations, in principal amount equal
to the unprepaid portion of the Security so presented.
ARTICLE XV
SUBORDINATION OF SECURITIES
SECTION 15.01. Agreement to Subordinate.
The Company covenants and agrees, and each holder of
Securities issued hereunder likewise covenants and agrees, that
the Securities shall be issued subject to the provisions of this
Article Fifteen; and each holder of a Security, whether upon
original issue or upon transfer or assignment thereof, accepts
and agrees to be bound by such provisions.
The payment by the Company of the principal of,
premium, if any, and interest on all Securities issued hereunder
shall, to the extent and in the manner hereinafter set forth, be
subordinated and junior in right of payment to all Senior
Indebtedness, whether outstanding at the date of this Indenture
or thereafter incurred.
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No provision of this Article Fifteen shall prevent the
occurrence of any Default or Event of Default hereunder.
SECTION 15.02. Default on Senior Indebtedness.
No payment of principal (including prepayment) of,
premium, if any, or interest on the Securities may be made at any
time when (i) any Senior Indebtedness is not paid when due, and
any applicable grace period with respect to such default has
ended and such default has not been cured or waived or ceased to
exist, or (ii) the maturity of any Senior Indebtedness has been
accelerated because of a default.
In the event of the acceleration of the maturity of
the Securities due to an Event of Default, then no payment shall
be made by the Company with respect to the principal (including
prepayments) of or premium, if any, or interest on the Securities
until the holders of all Senior Indebtedness outstanding at the
time of such acceleration shall receive payment in full of all
amounts due in respect of such Senior Indebtedness (including any
amounts due upon acceleration).
In the event that, notwithstanding the foregoing, any
payment shall be received by the Trustee when such payment is
prohibited by the preceding paragraphs of this Section 15.02,
such payment shall be held in trust for the benefit of, and shall
be paid over or delivered to, the holders of Senior Indebtedness
or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests
may appear, but only to the extent that the holders of the Senior
Indebtedness (or their representative or representatives or a
trustee) notify the Trustee in writing, within 90 days of such
payment of the amounts then due and owing on such Senior
Indebtedness and only the amounts specified in such notice to the
Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 15.03. Liquidation; Dissolution; Bankruptcy.
Upon any payment by the Company or distribution of
assets of the Company of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or
winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all
Senior Indebtedness of the Company shall first be paid in full,
or payment thereof provided for in money in accordance with its
terms, before any payment is made by the Company on account of
the principal (and premium, if any) or interest with respect to
the Securities; and upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character,
74
whether in cash, property or securities, to which the
Securityholders or the Trustee would be entitled to receive from
the Company, except for the provisions of this Article Fifteen,
shall be paid by the Company or by any receiver, trustee in
bankruptcy, liquidating trustee, agent or other Person making
such payment or distribution, or by the Securityholders or by the
Trustee under this Indenture if received by them or it, directly
to the holders of Senior Indebtedness of the Company (pro rata to
such holders on the basis of the respective amounts of Senior
Indebtedness held by such holders, as calculated by the Company)
or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as
their respective interests may appear, to the extent necessary to
pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to
or for the holders of such Senior Indebtedness, before any
payment or distribution is made to the Securityholders or to the
Trustee.
In the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, prohibited by
the foregoing, shall be received by the Trustee before all Senior
Indebtedness is paid in full, or provision is made for such
payment in money in accordance with its terms, such payment or
distribution shall be held in trust for the benefit of and shall
be paid over or delivered to the holders of such Senior
Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any
instruments evidencing such Senior Indebtedness may have been
issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay such
Senior Indebtedness in full in money in accordance with its
terms, after giving effect to any concurrent payment or
distribution to or for the benefit of the holders of such Senior
Indebtedness.
For purposes of this Article Fifteen, the words "cash,
property or securities" shall not be deemed to include shares of
stock of the Company as reorganized or readjusted, or securities
of the Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article
Fifteen with respect to the Securities to the payment of Senior
Indebtedness that may at the time be outstanding, provided that
(i) such Senior Indebtedness is assumed by the new corporation,
if any, resulting from any such reorganization or readjustment,
and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company
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with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the sale,
conveyance, transfer or lease of its property as an entirety, or
substantially as an entirety, to another Person upon the terms
and conditions provided for in Article Ten of this Indenture
shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 15.03 if such
other Person shall, as a part of such consolidation, merger,
sale, conveyance, transfer or lease, comply with the conditions
stated in Article Ten of this Indenture.
SECTION 15.04. Subrogation.
Subject to the payment in full of all Senior
Indebtedness, the rights of the Securityholders shall be
subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash,
property or securities of the Company, as the case may be,
applicable to such Senior Indebtedness until the principal of
(and premium, if any) and interest on the Securities shall be
paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Senior
Indebtedness of any cash, property or securities to which the
Securityholders or the Trustee would be entitled except for the
provisions of this Article Fifteen, and no payment over pursuant
to the provisions of this Article Fifteen to or for the benefit
of the holders of such Senior Indebtedness by Securityholders or
the Trustee, shall, as between the Company, its creditors other
than holders of Senior Indebtedness of the Company, and the
holders of the Securities, be deemed to be a payment by the
Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article Fifteen are and
are intended solely for the purposes of defining the relative
rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness on the other hand.
Nothing contained in this Article Fifteen or elsewhere
in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the
holders of Senior Indebtedness of the Company, and the holders of
the Securities, the obligation of the Company, which is absolute
and unconditional, to pay to the holders of the Securities the
principal of (and premium, if any) and interest on the Securities
as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative
rights of the holders of the Securities and creditors of the
Company, as the case may be, other than the holders of Senior
Indebtedness of the Company, as the case may be, nor shall
anything herein or therein prevent the Trustee or the holder of
any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article Fifteen of the holders of such
76
Senior Indebtedness in respect of cash, property or securities of
the Company, as the case may be, received upon the exercise of
any such remedy.
SECTION 15.05. Trustee to Effectuate Subordination.
Each Securityholder by such Securityholder's
acceptance thereof authorizes and directs the Trustee on such
Securityholder's behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this
Article Fifteen and appoints the Trustee such Securityholder's
attorney-in-fact for any and all such purposes.
SECTION 15.06. Notice by the Company.
The Company shall give prompt written notice to a
Responsible Officer of any fact known to the Company that would
prohibit the making of any payment of monies to or by the Trustee
in respect of the Securities pursuant to the provisions of this
Article Fifteen. Notwithstanding the provisions of this Article
Fifteen or any other provision of this Indenture, the Trustee
shall not be charged with knowledge of the existence of any facts
that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Securities pursuant to the
provisions of this Article Fifteen, unless and until a
Responsible Officer of the Trustee assigned to its Principal
Office shall have received written notice thereof from the
Company or a holder or holders of Senior Indebtedness or from any
trustee therefor or representative thereof; and before the
receipt of any such written notice, the Trustee, subject to the
provisions of Article Six of this Indenture, shall be entitled in
all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received the notice
provided for in this Section 15.06 at least two Business Days
prior to the date (i) upon which by the terms hereof any money
may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any)
or interest on any Security), or (ii) moneys and/or U.S.
Government Obligations are deposited in trust pursuant to Article
Eleven then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purposes for
which they were received, and shall not be affected by any notice
to the contrary that may be received by it within two Business
Days prior to such date.
The Trustee, subject to the provisions of Article Six
of this Indenture, shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness of the Company (or
a trustee or representative on behalf of such holder), to
establish that such notice has been given by a holder of such
77
Senior Indebtedness or a trustee or representative on behalf of
any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with
respect to the right of any Person as a holder of such Senior
Indebtedness to participate in any payment or distribution
pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the
Trustee as to the amount of such Senior Indebtedness held by such
Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article
Fifteen, and, if such evidence is not furnished, the Trustee may
defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Upon any payment or distribution of assets of the
Company referred to in this Article Fifteen, the Trustee and the
Securityholders shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee
for the benefit of creditors, agent or other Person making such
payment or distribution, delivered to the Trustee or to the
Securityholders, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fifteen.
SECTION 15.07. Rights of the Trustee; Holders of Senior
Indebtedness.
The Trustee in its individual capacity shall be
entitled to all the rights set forth in this Article Fifteen in
respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and
nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
With respect to the holders of Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only
such of its covenants and obligations as are specifically set
forth in this Article Fifteen, and no implied covenants or
obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary
duty to the holders of such Senior Indebtedness and, subject to
the provisions of Article Six of this Indenture, the Trustee
78
shall not be liable to any holder of such Senior Indebtedness if
it shall pay over or deliver to Securityholders, the Company or
any other Person money or assets to which any holder of such
Senior Indebtedness shall be entitled by virtue of this Article
Fifteen or otherwise.
Nothing in this Article Fifteen shall apply to claims
of, or payments to, the Trustee under or pursuant to Section
6.06.
SECTION 15.08. Subordination May Not Be Impaired.
No right of any present or future holder of any Senior
Indebtedness of the Company to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired
by any act or failure to act on the part of the Company, as the
case may be, or by any act or failure to act, in good faith, by
any such holder, or by any noncompliance by the Company, as the
case may be, with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof that any such
holder may have or otherwise be charged with.
Without in any way limiting the generality of the
foregoing paragraph, the holders of Senior Indebtedness of the
Company may, at any time and from time to time, without the
consent of or notice to the Trustee or the Securityholders,
without incurring responsibility to the Securityholders and
without impairing or releasing the subordination provided in this
Article Fifteen or the obligations hereunder of the holders of
the Securities to the holders of such Senior Indebtedness, do any
one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or
alter, such Senior Indebtedness, or otherwise amend or supplement
in any manner such Senior Indebtedness or any instrument
evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise
securing such Senior Indebtedness; (iii) release any Person
liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any
rights against the Company, as the case may be, and any other
Person.
79
ARTICLE XVI
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 16.01. Extension of Interest Payment Period.
So long as no Event of Default has occurred and is
continuing, the Company shall have the right, at any time and
from time to time during the term of the Securities, to defer
payments of interest by extending the interest payment period of
such Securities for a period not exceeding 10 consecutive
semi-annual periods, including the first such semi-annual period
during such extension period (the "Extended Interest Payment
Period"), during which Extended Interest Payment Period no
interest shall be due and payable; provided that no Extended
Interest Payment Period shall end on a date other than an
Interest Payment Date or may extend beyond the Maturity Date. To
the extent permitted by applicable law, interest, the payment of
which has been deferred because of the extension of the interest
payment period pursuant to this Section 16.01, will bear interest
thereon at the Coupon Rate compounded semi-annually for each
semi-annual period of the Extended Interest Payment Period
("Compounded Interest"). At the end of the Extended Interest
Payment Period, the Company shall pay all interest accrued and
unpaid on the Securities, including any Additional Interest and
Compounded Interest (together, "Deferred Interest") that shall be
payable to the holders of the Securities in whose names the
Securities are registered in the Security Register on the first
record date preceding the end of such Extended Interest Payment
Period. During any Extended Interest Payment Period, the Company
may further defer payments of interest by extending such period,
provided that such period, together with all such previous and
further extensions of such Extended Interest Payment Period,
shall not exceed 10 consecutive semi-annual periods, including
the first such semi-annual period during such Extended Interest
Payment Period, or extend beyond the Maturity Date. Upon the
termination of any Extended Interest Payment Period and the
payment of all Deferred Interest then due, the Company may elect
to commence a new Extended Interest Payment Period, subject to
the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end
thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest
Payment Period.
SECTION 16.02. Notice of Extension.
(a) If the Property Trustee is the only registered
holder of the Securities at the time the Company selects an
Extended Interest Payment Period, the Company shall give written
notice to the Administrators and the Property Trustee of its
selection of such Extended Interest Payment Period five Business
80
Days before the earlier of (i) the next succeeding date on which
Distributions on the Trust Securities issued by ALBANK Capital
Trust are payable, or (ii) the date the Trust is required to give
notice of the record date, or the date such Distributions are
payable, to any national securities exchange or to holders of the
Capital Securities issued by the Trust, but in any event at least
five Business Days before such record date.
(b) If the Property Trustee is not the only holder of
the Securities at the time the Company selects an Extended
Interest Payment Period, the Company shall give the holders of
the Securities and the Trustee written notice of its selection of
such Extended Interest Payment Period at least 10 Business Days
before the earlier of (i) the next succeeding Interest Payment
Date, or (ii) the date the Company is required to give notice of
the record or payment date of such interest payment to any
national securities exchange.
The Chase Manhattan Bank hereby accepts the trusts in
this Indenture declared and provided, upon the terms and
conditions hereinabove set forth.
81
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed by their respective officers
thereunto duly authorized, as of the day and year first above
written.
ALBANK FINANCIAL CORPORATION
By /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
The Chase Manhattan Bank,
as Trustee
By /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Senior Trust Officer
EXHIBIT A
(FORM OF FACE OF SECURITY)
[IF THE SECURITY IS A GLOBAL SECURITY, INSERT: - THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY
THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC") TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DTC (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
[IF THIS SECURITY IS A RESTRICTED SECURITY, INSERT:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES
LAWS OR ANY OTHER APPLICABLE SECURITIES LAW. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE
REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY, PRIOR
TO THE DATE (THE "RESALE RESTRICTION TERMINATION DATE") WHICH IS
TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE DATE HEREOF
AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
THIS SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A) THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE
A-1
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR"
WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN
VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
SECURITIES ACT, SUBJECT TO THE RIGHT OF THE COMPANY PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E) OR
(F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY, AND (ii) PURSUANT TO CLAUSE (E), TO REQUIRE THAT THE
TRANSFEROR DELIVER TO THE COMPANY A LETTER FROM THE TRANSFEREE
SUBSTANTIALLY IN THE FORM OF ANNEX A TO THE OFFERING MEMORANDUM
DATED JUNE 4, 1997 RELATING TO THIS SECURITY. SUCH HOLDER FURTHER
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY
IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND.]
[IF THE SECURITY IS A SERIES A CAPITAL SECURITY,
INSERT: THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF IS
DEEMED TO HAVE AGREED TO BE BOUND BY THE PROVISIONS OF A
REGISTRATION RIGHTS AGREEMENT AMONG ALBANK CAPITAL TRUST I (THE
"TRUST"), ALBANK FINANCIAL CORPORATION (THE "COMPANY") AND
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED DATED JUNE 6,
1997 (THE "REGISTRATION RIGHTS AGREEMENT"). THE COMPANY WILL
PROVIDE A COPY OF THE REGISTRATION RIGHTS AGREEMENT TO A HOLDER
WITHOUT CHARGE UPON WRITTEN REQUEST TO THE TRUST AT ITS PRINCIPAL
PLACE OF BUSINESS.]
A-2
No. Cusip No.
ALBANK FINANCIAL CORPORATION
9.27% SERIES __ JUNIOR SUBORDINATED DEFERRABLE INTEREST
DEBENTURE, DUE JUNE 6, 2027
ALBANK Financial Corporation, a Delaware corporation
(the "Company", which term includes any successor Person under
the Indenture hereinafter referred to), for value received,
hereby promises to pay to ____________________________________ or
registered assigns, the principal sum of ______________________
________________________________________ on _____ __, 2027 (the
"Maturity Date"), unless previously prepaid, and to pay interest
on the outstanding principal amount hereof from June 6, 1997 or
from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly
provided for, semi-annually (subject to deferral as set forth
herein) in arrears on June 6 and December 6 of each year,
commencing December 6, 1997 at the rate of 9.27% per annum until
the principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without
duplication and to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of
interest at the same rate per annum compounded semi-annually. The
amount of interest payable on any Interest Payment Date shall be
computed on the basis of a 360-day year of twelve 30-day months
and, for any period less than a full calendar month, the number
of days elapsed in such month. In the event that any date on
which the principal of (or premium, if any) or interest on this
Security is payable is not a Business Day, then payment payable
on such date will be made on the next succeeding day that is a
Business Day (and without any interest or other payment in
respect of any such delay), with the same force and effect as if
made on such date.
The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities, as defined
in said Indenture) is registered at the close of business on the
regular record date for such interest installment, which shall be
the fifteenth day prior to the relevant Interest Payment Date.
Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the holders
on such regular record date and may be paid to the Person in
whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a special record date
to be fixed by the Trustee for the payment of such defaulted
interest, notice whereof shall be given to the holders of
Securities not less than 10 days prior to such special record
date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on
which the Securities may be listed, and
A-3
upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
The principal of (and premium, if any) and interest on
this Security shall be payable at the office or agency of the
Trustee maintained for that purpose in any coin or currency of
the United States of America that at the time of payment is legal
tender for payment of public and private debts; provided,
however, that, payment of interest may be made at the option of
the Company by (i) check mailed to the holder entitled thereto at
such address as shall appear in the Security Register or (ii) by
transfer to an account maintained by the Person entitled thereto,
provided that proper written transfer instructions have been
received by the paying agent by the relevant record date.
Notwithstanding the foregoing, so long as the Holder of this
Security is the Property Trustee, the payment of the principal of
(and premium, if any) and interest on this Security will be made
at such place and to such account as may be designated by the
Property Trustee.
The indebtedness evidenced by this Security is, to the
extent provided in the Indenture, subordinate and junior in right
of payment to the prior payment in full of Senior Indebtedness,
and this Security is issued subject to the provisions of the
Indenture with respect thereto. Each holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her
behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c)
appoints the Trustee his or her attorney-in-fact for any and all
such purposes. Each holder hereof, by his or her acceptance
hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by
each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Security shall not be entitled to any benefit
under the Indenture hereinafter referred to, or be valid or
become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of
the Trustee.
A-4
The provisions of this Security are continued on the
reverse side hereof and such provisions shall for all purposes
have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this
instrument to be executed.
ALBANK FINANCIAL CORPORATION
By: ____________________________
Name:
Title:
(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
Dated: ______________
The Chase Manhattan Bank,
as Trustee
By: ____________________
Authorized Officer
A-5
(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the Company
(herein sometimes referred to as the "Securities"), specified in
the Indenture, all issued or to be issued under and pursuant to
an Indenture, dated as of June 6, 1997 (the "Indenture"), duly
executed and delivered between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), to which Indenture
reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the
Securities.
Upon the occurrence and continuation of a Special
Event, the Company shall have the right at any time prior to June
6, 2007 (the "Initial Optional Prepayment Date"), within 90 days
following the occurrence of such Special Event to prepay this
Security in whole (but not in part) at the Special Event
Prepayment Price. "Special Event Prepayment Price" shall mean,
with respect to any prepayment of the Securities following a
Special Event, an amount in cash equal to the greater of (i) 100%
of the principal amount to be prepaid or (ii) the sum, as
determined by a Quotation Agent, of the present value of 100% of
the principal amount thereof plus the scheduled payments of
interest thereon on the Securities from the prepayment date to
and including the Initial Optional Prepayment Date, discounted to
the prepayment date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury
Rate, plus any accrued and unpaid interest thereon, including
Compounded Interest and Additional Interest, if any, to the date
of such prepayment.
In addition, the Company shall have the right to
prepay this Security, in whole or in part, at any time on or
after the Initial Optional Prepayment Date (an "Optional
Prepayment"), at the prepayment prices as set forth below
(expressed as percentages of principal to be prepaid) plus, in
each case, accrued and unpaid interest thereon (including
Additional Interest and Compounded Interest, if any) to the
applicable date of prepayment (the "Optional Prepayment Price"),
if prepaid during the 12-month period beginning June 6 of the
years indicated below.
Year Percentage
2007......................104.635%
2008......................104.172%
2009......................103.708%
2010......................103.245%
2011......................102.781%
2012......................102.318%
2013......................101.854%
2014......................101.391%
2015......................100.927%
2016......................100.464%
2017 and thereafter.......100.000%
A-6
The Optional Prepayment Price or the Special Event
Prepayment Price, as the case requires, shall be paid prior to
12:00 noon, New York time, on the date of such prepayment or at
such earlier time as the Company determines, provided, that the
Company shall deposit with the Trustee an amount sufficient to
pay the applicable Prepayment Price by 10:00 a.m., New York City
time, on the date such Prepayment Price is to be paid. Any
prepayment pursuant to this paragraph will be made upon not less
than 30 days nor more than 60 days notice. If the Securities are
only partially prepaid by the Company pursuant to an Optional
Prepayment, the Securities will be prepaid pro rata or by lot or
by any other method utilized by the Trustee; provided that if, at
the time of prepayment, the Securities are registered as a Global
Security, the Depositary shall determine in accordance with its
procedures the principal amount of such Securities held for the
account of its participants to be prepaid.
In the event of prepayment of this Security in part
only, a new Security or Securities for the unprepaid portion
hereof will be issued in the name of the holder hereof upon the
cancellation hereof.
Notwithstanding the foregoing, any prepayment of
Securities by the Company shall be subject to the receipt by the
Company of the approval of any required regulatory approval.
In case an Event of Default, as defined in the
Indenture, shall have occurred and be continuing, the principal
of all of the Securities may be declared, and upon such
declaration shall become, due and payable, in the manner, with
the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the
Company and the Trustee, with the consent of the holders of a
majority in aggregate principal amount of the Securities at the
time outstanding, as defined in the Indenture, to execute
supplemental indentures for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions
of the Indenture or of modifying in any manner the rights of the
holders of the Securities; provided, however, that no such
supplemental indenture shall, without the consent of each holder
of Securities then outstanding and affected thereby, (i) extend
the Maturity Date of any Securities, or reduce the principal
amount thereof, or reduce any amount payable on prepayment
thereof, or reduce the rate or extend the time of payment of
interest thereon (subject to Article Sixteen of the Indenture),
or make the principal of, or interest or premium on, the
Securities payable in any coin or currency other than U.S.
dollars, or impair or affect the right of any holder of
Securities to institute suit for the payment thereof, or (ii)
reduce the aforesaid percentage of Securities, the holders of which
are required to consent to any such supplemental indenture. The
Indenture also contains provisions permitting the holders of a
A-7
majority in aggregate principal amount of the Securities at the
time outstanding, on behalf of all of the holders of the
Securities, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established
pursuant to the Indenture, and its consequences, except a default
in the payment of the principal of or premium, if any, or
interest on any of the Securities or a default in respect of any
covenant or provision which under the Indenture cannot be
modified or amended without the consent of each holder of
Securities then outstanding. Any such consent or waiver by the
holder of this Security (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and
upon all future holders and owners of this Security and of any
Security issued in exchange herefor or in place hereof (whether
by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made
upon this Security.
No reference herein to the Indenture and no provision
of this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay the principal of and premium, if any, and interest on this
Security at the time and place and at the rate and in the money
herein prescribed.
The Company shall have the right, at any time and from
time to time during the term of the Securities, to defer payments
of interest by extending the interest payment period of such
Securities for a period not exceeding 10 consecutive semi-annual
periods, including the first such semi-annual period during such
extension period, and not to extend beyond the Maturity Date of
the Securities (an "Extended Interest Payment Period"), at the
end of which period the Company shall pay all interest then
accrued and unpaid (together with interest thereon at the rate
specified for the Securities to the extent that payment of such
interest is enforceable under applicable law). Before the
termination of any such Extended Interest Payment Period, the
Company may further defer payments of interest by further
extending such Extended Interest Payment Period, provided that
such Extended Interest Payment Period, together with all such
previous and further extensions within such Extended Interest
Payment Period, (i) shall not exceed 10 consecutive semi-annual
periods, including the first semi-annual period during such
Extended Interest Payment Period, (ii) shall not end on any date
other than an Interest Payment Date and (iii) shall not extend
beyond the Maturity Date of the Securities. Upon the termination
of any such Extended Interest Payment Period and the payment of
all accrued and unpaid interest and any additional amounts then
due, the Company may commence a new Extended Interest Payment
Period, subject to the foregoing requirements.
The Company has agreed that it will not (i) declare or
pay any dividends or distributions on, or redeem, purchase,
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acquire, or make a liquidation payment with respect to, any of
the Company's capital stock (which includes common and preferred
stock), (ii) make any payment of principal, interest or premium,
if any, with respect to or repay, repurchase or redeem any debt
securities of the Company that rank pari passu with or junior in
right of payment to the Securities or (iii) make any guarantee
payments with respect to any guarantee by the Company of the debt
securities or any Subsidiary of the Company (including any Other
Guarantees) if such guarantee ranks pari passu or junior in right
of payment to the Securities (other than (a) dividends or
distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, Common Stock of the Company;
(b) any declaration of a dividend in connection with the
implementation of a stockholders' rights plan, or the issuance of
stock under any such plan in the future, or the redemption or
repurchase of any such rights pursuant thereto; (c) payments
under the Capital Securities Guarantee; (d) as a result of a
reclassification of the Company's capital stock or the exchange
or the conversion of one class or series of the Company's capital
stock for another class or series of the Company's capital stock;
(e) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the exchange or conversion of
such capital stock or the security being exchanged or converted;
and (f) purchases of Common Stock related to the issuance of
Common Stock or rights under any of the Company's benefit plans
for its directors, officers or employees or any of the Company's
dividend reinvestment plans) if at such time (i) there shall have
occurred any event of which the Company has actual knowledge that
(a) is, or with the giving of notice or the lapse of time, or
both, would be, an Event of Default and (b) in respect of which
the Company shall not have taken reasonable steps to cure, (ii)
if the Securities are held by ALBANK Capital Trust, the Company
shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee or (iii) the
Company shall have given notice of its election of the exercise
of its right to extend the interest payment period and any such
extension shall be continuing.
The Securities are issuable only in registered form
without coupons in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof. As provided in the
Indenture and subject to the transfer restrictions limitations as
may be contained herein and therein from time to time, this
Security is transferable by the holder hereof on the Security
Register of the Company, upon surrender of this Security for
registration of transfer at the office or agency of the Company
in the City and State of New York accompanied by a written
instrument or instruments of transfer in form satisfactory to the
Company or the Security registrar duly executed by the holder
hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities of authorized denominations and for
the same aggregate principal amount and series will be issued to
the designated transferee or transferees. No service charge will
be made for any
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such transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in relation thereto.
Prior to due presentment for registration of transfer
of this Security, the Company, the Trustee, any authenticating
agent, any paying agent, any transfer agent and the registrar may
deem and treat the registered holder hereof as the owner hereof
(whether or not this Security shall be overdue and
notwithstanding any notice of ownership or writing hereon made by
anyone other than the Security Registrar) for the purpose of
receiving payment of or on account of the principal hereof and
premium, if any, and (subject to the Indenture) interest due
hereon and for all other purposes, and neither the Company nor
the Trustee nor any authenticating agent nor any paying agent nor
any transfer agent nor any registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest on this Security, or
for any claim based hereon, or otherwise in respect hereof, or
based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or
future, as such, of the Company or of any predecessor or
successor Person, whether by virtue of any constitution, statute
or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof,
expressly waived and released.
All terms used in this Security that are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
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