________ ___, 1997
EXCHANGE AGENT AGREEMENT
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
ALBANK Capital Trust I, a Delaware statutory business trust
(the "Issuer") proposes to make an offer (the "Exchange Offer")
to exchange up to $50,000,000 aggregate liquidation amount of its
9.27% Capital Securities, Series B (liquidation amount $1,000 per
Capital Security) (the "New Capital Securities"), which have been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), for a like liquidation amount of its
outstanding 9.27% Capital Securities, Series A (liquidation amount
$1,000 per Capital Security) (the "Old Capital Securities"), of
which $50,000,000 aggregate liquidation amount is outstanding.
The terms and conditions of the Exchange Offer as currently
contemplated are set forth in a prospectus, dated ________ ___,
1997 (the "Prospectus"), a copy of which is attached to this
Agreement as Attachment A, proposed to be distributed to all
record holders of the Old Capital Securities. Capitalized terms
used herein and not otherwise defined shall have the meanings
assigned to them in the Prospectus.
The Issuer hereby appoints The Chase Manhattan Bank to act
as exchange agent (the "Exchange Agent") in connection with the
Exchange Offer. References hereinafter to "you" shall refer to
The Chase Manhattan Bank.
The Exchange Offer is expected to be commenced by the
Issuer on or about ________ ___, 1997. The Letter of Transmittal
accompanying the Prospectus is to be used by the holders of the
Old Capital Securities to accept the Exchange Offer, and contains
certain instructions with respect to the Exchange Offer.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on ________ ___, 1997 or on such later date or time to
which the Issuer or ALBANK Financial Corporation (the "Company")
may extend the Exchange Offer (the "Expiration Date"). Subject to
the terms and conditions set forth in the Prospectus, the Issuer
and the Company expressly reserve the right to extend the
Exchange Offer from time to time and may extend the Exchange
Offer by giving oral (promptly confirmed in writing) or written
notice to you no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date.
The Issuer and the Company expressly reserve the right to
amend or terminate the Exchange Offer, and not to accept for
exchange any Old Capital Securities not theretofore accepted for
exchange, upon the occurrence of any of the conditions of the
Exchange Offer
specified in the Prospectus under the caption "Conditions to the
Exchange Offer." The Issuer or the Company will give oral
(promptly confirmed in writing) or written notice of any
amendment, termination or nonacceptance to you as promptly as
practicable.
In carrying out your duties as Exchange Agent, you are to
act in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth in the section of the Prospectus captioned
"The Exchange Offer" and as specifically set forth herein and
such duties which are necessarily incidental thereto; provided,
however, that in no way will your general duty to act in good
faith be discharged by the foregoing.
2. You will establish an account with respect to the Old
Capital Securities at The Depository Trust Company (the
"Book-Entry Transfer Facility") for purposes of the Exchange
Offer within two business days after the date of the Prospectus
or, if you already have established an account with the
Book-Entry Transfer Facility suitable for the Exchange Offer, you
will identify such preexisting account to be used in the Exchange
Offer, and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry
delivery of the Old Capital Securities by causing the Book-Entry
Transfer Facility to transfer such Old Capital Securities into
your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal,
certificates for Old Capital Securities and confirmations of
book-entry transfers into your account at the Book- Entry
Transfer Facility and any Agent's Message or other documents
delivered or mailed to you by or for holders of the Old Capital
Securities to ascertain whether: (i) the Letters of Transmittal
and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein, (ii)
the Old Capital Securities have otherwise been properly tendered,
(iii) the Old Capital Securities tendered in part are tendered in
principal amounts of $100,000 (100 Capital Securities) and
integral multiples of $1,000 in excess thereof and if any Old
Capital Securities are tendered for exchange in part, the
untendered principal amount thereof is $100,000 (100 Capital
Securities) or any integral multiple of $1,000 in excess thereof,
and (iv) holders of Old Capital Securities have provided their
Tax Identification Number or required certification. In each case
where the Letter of Transmittal or any other document has been
improperly completed or executed or any of the certificates for
Old Capital Securities are not in proper form for transfer or
some other irregularity in connection with the acceptance of the
Exchange Offer exists, you will endeavor to inform the presenters
of the need for fulfillment of all requirements and to take any
other action as may be necessary or advisable to cause such
irregularity to be corrected.
4. With the approval of the Issuer or the Chairman of the
Board, the Chief Executive Officer, the Chief Financial Officer
or the Secretary of the Company (such approval, if given orally,
to be confirmed in writing) or any other party designated by the
Issuer or such officer of the Company in writing, you are
authorized to waive any
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irregularities in connection with any tender of Old Capital
Securities pursuant to the Exchange Offer.
5. Tenders of Old Capital Securities may be made only as
set forth in the section of the Prospectus captioned "The
Exchange Offer -- Procedures for Tendering Old Capital
Securities" or in the Letter of Transmittal and Old Capital
Securities shall be considered properly tendered to you only when
tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this Section 5, Old
Capital Securities which the Issuer or any other party designated
by the Issuer in writing shall approve as having been properly
tendered shall be considered to be properly tendered (such
approval, if given orally, shall be confirmed in writing).
6. You shall advise the Issuer with respect to any Old
Capital Securities delivered subsequent to the Expiration Date
and accept its instructions with respect to disposition of such
Old Capital Securities.
7. You shall accept tenders:
(a) in cases where the Old Capital Securities are
registered in two or more names only if signed by all named
holders:
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a
representative capacity only when proper evidence of his or her
authority to so act is submitted; and
(c) from persons other than the registered holder of Old
Capital Securities provided that customary transfer requirements,
including any applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Capital Securities
where so indicated and as permitted in the Letter of Transmittal
and deliver certificates for Old Capital Securities to the
transfer agent for split-up and return any untendered Old Capital
Securities to the holder (or to such other person as may be
designated in the Letter of Transmittal) as promptly as
practicable after expiration or termination of the Exchange
Offer.
8. Upon satisfaction or waiver of all of the conditions to
the Exchange Offer, the Issuer will notify you (such notice if
given orally, to be promptly confirmed in writing) of the
Issuer's acceptance, promptly after the Expiration Date, of all
Old Capital Securities properly tendered and you, on behalf of
the Issuer, will exchange such Old Capital Securities for the New
Capital Securities and cause such Old Capital Securities to be
canceled. Delivery of New Capital Securities will be made on
behalf of the Issuer by you at the rate of $1,000 liquidation
amount of New Capital Securities for each $1,000 liquidation
amount of Old Capital Securities tendered promptly after notice
(such notice if given orally, to be promptly confirmed in
writing) of acceptance of said Old Capital Securities by the
Issuer; provided, however, that in
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all cases, Old Capital Securities tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you
of certificates for such Old Capital Securities (or confirmation
of book-entry transfer into your account at the Book-Entry
Transfer Facility), a properly completed and duly executed Letter
of Transmittal (or facsimile thereof) with any required signature
guarantees (or in lieu thereof an Agent's Message) and any other
required document. Unless otherwise instructed by the Company or
the Issuer, you shall issue New Capital Securities only in
denominations of $100,000 (100 Capital Securities) or any
integral multiple of $1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set
forth in the Prospectus and the Letter of Transmittal, Old
Capital Securities tendered pursuant to the Exchange Offer may be
withdrawn at any time on or prior to the Expiration Date in
accordance with the terms of the Exchange Offer.
10. The Company and the Issuer shall not be required to
exchange any Old Capital Securities tendered if any of the
conditions set forth in the Exchange Offer are not met.
Notice of any decision by the Company and the Issuer not to
exchange any Old Capital Securities tendered shall be given (such
notice, if given orally, shall be promptly confirmed in writing)
by the Company or the Issuer to you.
11. If, pursuant to the Exchange Offer, the Issuer does not
accept for exchange all or part of the Old Capital Securities
tendered because of an invalid tender, the occurrence of certain
other events set forth in the Prospectus under the caption "The
Exchange Offer -- Conditions to the Exchange Offer" or otherwise,
you shall as soon as practicable after the expiration or
termination of the Exchange Offer return those certificates for
unaccepted Old Capital Securities (or effect the appropriate
book-entry transfer of the unaccepted Old Capital Securities),
and return any related required documents and the Letters of
Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All certificates for reissued Old Capital Securities,
unaccepted Old Capital Securities or New Capital Securities shall
be forwarded by (a) certified mail, under a blanket surety bond
protecting you, the Issuer and the Company from loss or liability
arising out of the non-receipt or non-delivery of such
certificates or (b) by registered mail insured separately for the
replacement value of such certificates.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker,
dealer, bank or other persons or to engage or utilize any person
to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency,
value or genuineness of Old Capital Securities, and will not be
required to and will make no representation as to the validity,
value or genuineness of the
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Exchange Offer; provided, however, that in no way will your
general duty to act in good faith be discharged by the foregoing;
(b) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any
expense or liability, unless you shall have been furnished with
reasonable indemnity;
(c) shall not be liable to the Company or the Issuer for
any action taken or omitted by you, or any action suffered by you
to be taken or omitted, without negligence, misconduct or bad
faith on your part, by reason of or as a result of the
administration of your duties hereunder in accordance with the
terms and conditions of this Agreement or by reason of your
compliance with the instructions set forth herein or with any
written or oral instructions delivered to you pursuant hereto,
and may reasonably rely on and shall be protected in acting in
good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered
to you and reasonably believed by you to be genuine and to have
been signed by the proper party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, agreement or other instrument whatsoever not only as to
its due execution and validity and the effectiveness of its
provisions, but also as to the truth and accuracy of any
information contained therein, which you shall in good faith
reasonably believe to be genuine or to have been signed or
represented by a proper person or persons;
(e) may rely on and shall be protected in acting upon
written or oral instructions from the Issuer or any officer of
the Company with respect to the Exchange Offer;
(f) shall not advise any person whether to tender or
refrain from tendering Old Capital Securities pursuant to the
Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Capital Securities; and
(g) may consult with your counsel with respect to any
questions relating to your duties and responsibilities and the
written opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by you hereunder in good faith and in
accordance with such written opinion of such counsel.
15. You shall take such action as may from time to time be
requested by the Company, the Issuer or their counsel (and such
other action as you may reasonably deem appropriate) to furnish
copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery, or such other forms as may be approved from
time to time by the Company or the Issuer, to all persons
requesting such documents and to accept and comply with telephone
requests for information relating to the Exchange Offer, provided
that such information shall relate only to the procedures for
accepting (or withdrawing from) the Exchange Offer. The Company
or the Issuer will furnish you with copies of such documents at
your request. All other requests for information relating to the
Exchange Offer shall be directed to the Company, Attention:
Xxxxxxx X. Xxxxx.
5
16. You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to the Issuer, the
Company and Cleary, Gottlieb, Xxxxx & Xxxxxxxx, 0000 Xxxxxxxxxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000-0000, Attn: Xxxxxxx X.
Xxxxxxx, Esq., counsel for the Company and the Issuer, and such
other person or persons as they may request, daily, and more
frequently, if reasonably requested, up to and including the
Expiration Date, as to the principal amount of the Old Capital
Securities which have been tendered pursuant to the Exchange
Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals to the items
properly received and items improperly received and items covered
by Notices of Guaranteed Delivery. In addition, you will also
inform, and cooperate in making available to, the Company and the
Issuer or any such other person or persons as the Company or the
Issuer request from time to time prior to the Expiration Date of
such other information as they or he reasonably requests. Such
cooperation shall include, without limitation, the granting by
you to the Company, the Issuer and such person as the Company or
the Issuer may request of access to those persons on your staff
who are responsible for receiving tenders, in order to ensure
that immediately prior to the Expiration Date, the Company and
the Issuer shall have received information in sufficient detail
to enable them to decide whether to extend the Exchange Offer.
You shall prepare a list of persons who failed to tender or whose
tenders were not accepted and the aggregate principal amount of
Old Capital Securities not tendered or Old Capital Securities not
accepted and deliver said list to the Company and the Issuer at
least seven days prior to the Expiration Date. You shall also
prepare a final list of all persons whose tenders were accepted,
the aggregate principal amount of Old Capital Securities tendered
and the aggregate principal amount of Old Capital Securities
accepted and deliver said list to the Company.
17. Letters of Transmittal and Notices of Guaranteed
Delivery shall be stamped by you as to the date and the time of
receipt thereof and shall be preserved by you for a period of
time at least equal to the period of time you preserve other
records pertaining to the transfer of securities. You shall
dispose of unused Letters of Transmittal and other surplus
materials by returning them to the Company.
18. At the written request of the Company and the Issuer or
their counsel, you shall notify tendering holders of Old Capital
Securities in the event of any extension, termination or
amendment of the Exchange Offer. In the event of any such
termination, you will return all tendered Old Capital Securities
to the persons entitled thereto, at the request and expense of
the Company.
19. If any holder of Old Capital Securities shall report to
you that his or her failure to surrender Old Capital Securities
registered in his or her name is due to the loss or destruction
of a certificate or certificates, you shall request such holder
(i) to furnish to you an affidavit of loss and, if required by
the Company and the Issuer, a bond of indemnity in an amount and
evidenced by such certificate or certificates of a surety as may
be satisfactory to you, the Company and the Issuer, and (ii) to
execute and deliver an agreement to indemnify the Company, the
Issuer and you, in such form as is acceptable to you, the Company
and the Issuer. The obligees to be named in each such indemnity
bond shall include you, the Company and the Issuer. You shall
report to the Company the names of all holders of Old
6
Capital Securities who claim that their Old Capital Securities
have been lost or destroyed and the principal amount of such Old
Capital Securities.
20. As soon as practicable after the Expiration Date, you
shall arrange for cancellation of the Old Capital Securities
submitted to you and accepted for exchange by the Issuer. Such
Old Capital Securities shall be canceled and retired by you in
your capacity as Trustee under the Indenture dated June 6, 1997,
governing the Capital Securities, as you are instructed by the
Company and the Issuer (or a representative designated by the
Company or the Issuer) in writing.
21. For services rendered as Exchange Agent hereunder you
shall be entitled to a fee of $4,000 (which fee the Exchange
Agent hereby agrees and acknowledges has already been paid by the
Company) and you shall be entitled to reimbursement of your
reasonable and duly documented out-of-pocket expenses (including
reasonable and duly documented fees and expenses of your counsel,
which fees are expected under normal circumstances to be not in
excess of $5,000) incurred in connection with the Exchange Offer.
For purposes of the preceding sentence, fees and expenses for
which an appropriate invoice has been delivered by you shall be
deemed duly documented fees and expenses. The obligations under
this Section 21 shall constitute joint and several obligations of
the Issuer and the Company.
22. You hereby acknowledge receipt of the Prospectus and
the Letter of Transmittal attached hereto and further acknowledge
that you have examined each of them to the extent necessary to
perform your obligations hereunder. Any inconsistency between
this Agreement, on the one hand, and the Prospectus and the
Letter of Transmittal (as they may be amended from time to time),
on the other hand, shall be resolved in favor of the latter two
documents, except with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be
controlled by this Agreement.
23. The Company and the Issuer jointly and severally
agree to indemnify and hold you harmless in your capacity as
Exchange Agent hereunder against any liability, cost or expense,
including reasonable attorney's fees, arising out of or in
connection with the acceptance or administration of your duties
hereunder, including, without limitation, in connection with any
act, omission, delay or refusal made by you in reasonable
reliance upon any signature, endorsement, assignment,
certificate, order, request, notice, instruction or other
instrument or document reasonably believed by you to be valid,
genuine and sufficient and in accepting any tender or effecting
any transfer of Old Capital Securities reasonably believed by you
in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfer of Old
Capital Securities; provided, however, that the Company and the
Issuer shall not be liable for indemnification or otherwise for
any loss, liability, cost or expense to the extent arising out of
your negligence, willful breach of this Agreement, willful
misconduct or bad faith. In no case shall the Company and the
Issuer be liable under this indemnity with respect to any claim
against you unless the Company and the Issuer shall be notified
by you, by letter or cable or by facsimile confirmed by letter,
of the written assertion of a claim against you or of any other
action commenced against you, promptly after you shall have
received any such written assertion or commencement of action.
The Company and the
7
Issuer shall be entitled to participate at their own expense in
the defense of any such claim or other action, and, if the
Company and the Issuer so elect, the Company and the Issuer shall
assume the defense of any suit brought to enforce any such claim.
In the event that the Company and the Issuer shall assume the
defense of any such suit, the Company and the Issuer shall not be
liable for the fees and expenses of any additional counsel
thereafter retained by you or any other fees and expenses
incurred by you in defense of such suit so long as the Company
and the Issuer shall retain counsel reasonably satisfactory to
you to defend such suit. You shall not compromise or settle any
such pending or threatened action or claim without the prior,
written consent of the Company and the Issuer.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the
laws of the State of New York applicable to agreements made and
to be performed entirely within such state, and without regard to
conflicts of law principles, and shall inure to the benefit of,
and the obligations created hereby shall be binding upon, the
successors and assigns of each of the parties hereto. No other
person shall acquire or have any rights under or by virtue of
this Agreement.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and
all of which taken together constitute one and the same
agreement.
26. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, canceled or waived, in whole or in
part, except by a written instrument signed by a duly authorized
representative of the party to be charged. This Agreement may not
be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in
writing (including facsimile) and shall be given to such party,
addressed to it, at its address or telecopy number set forth
below:
If to the Company: ALBANK Financial Corporation
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
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If to the Issuer: ALBANK Capital Trust I
c/o ALBANK Financial Corporation
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
If to the Exchange Agent: The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000/60
Attention: Xxxxxxx X. Xxxx
or such other address or telecopy number as any of the above may
have furnished to the other parties in writing for such purpose.
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date.
Notwithstanding the foregoing, Sections 21 and 23 shall survive
the termination of this Agreement. Except as provided in Sections
17 and 20, upon any termination of this Agreement, you shall
promptly deliver to the Company any funds or property (including,
without limitation, Letters of Transmittal, certificates for
Capital Securities and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this
Agreement.
30. This Agreement shall be binding and effective as of
the date hereof.
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Please acknowledge receipt of this Agreement and confirm the
arrangements herein provided by signing and returning the
enclosed copy.
ALBANK FINANCIAL CORPORATION
By: ________________________
Name:
Title:
ALBANK CAPITAL TRUST I
By: ________________________
Name:
Title:
Accepted as of the date first above written:
THE CHASE MANHATTAN BANK
By: ___________________________
Name:
Title:
