====================================
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
ALBANK FINANCIAL CORPORATION
Dated as of _________ __, 1997
====================================
SERIES B CAPITAL SECURITIES GUARANTEE AGREEMENT
This GUARANTEE AGREEMENT (the "Series B Capital
Securities Guarantee"), dated as of ______ __, 1997, is executed
and delivered by ALBANK Financial Corporation, a Delaware
corporation (the "Guarantor"), and The Chase Manhattan Bank, a
New York banking corporation, as indenture trustee (the "Capital
Securities Guarantee Trustee"), for the benefit of the Holders
(as defined herein) from time to time of the Series B Capital
Securities (as defined herein) of ALBANK Capital Trust I, a
Delaware statutory business trust (the "Issuer").
WHEREAS, pursuant to an Amended and Restated
Declaration of Trust (the "Declaration," which expression
includes Annex I and Exhibits X-0, X-0, B and C thereto), dated
as of June 6, 1997 among the trustees of the Issuer, the
Administrators, the Guarantor, as sponsor, and the holders from
time to time of undivided beneficial interests in the assets of
the Issuer, the Issuer issued on June 6, 1997, 50,000 capital
securities, having an aggregate liquidation amount of
$50,000,000, such capital securities being designated the 9.27%
Series A Capital Securities (collectively the "Series A Capital
Securities").
WHEREAS, as incentive for the holders of the Series A
Capital Securities to purchase the Series A Capital Securities,
the Guarantor irrevocably and unconditionally agreed, to the
extent set forth in the Series A Capital Securities Guarantee,
dated as of June 6, 1997 (the "Series A Capital Securities
Guarantee"), to pay to the holders of the Series A Capital
Securities the Guarantee Payments (as defined in the Series A
Capital Securities Guarantee) and to make certain other payments
on the terms and conditions set forth therein.
WHEREAS, the Guarantor also executed and delivered a
guarantee agreement (the "Common Securities Guarantee"), with
substantially identical terms to the Series A Capital Securities
Guarantee, for the benefit of the holders of the Common
Securities (as defined herein), except that if an Event of
Default (as defined in the Declaration) has occurred and is
continuing, the rights of holders of the Common Securities to
receive Guarantee Payments under the Common Securities Guarantee
are subordinated, to the extent and in the manner set forth in
the Common Securities Guarantee, to the rights of holders of
Series A Capital Securities to receive Guarantee Payments (as
defined in the Series A Capital Securities Guarantee) and the
rights of holders of Series B Capital Securities to receive
Guarantee Payments under this Series B Capital Securities
Guarantee.
WHEREAS, pursuant to the Registration Rights Agreement
(as defined in the Declaration), the Trust has offered to
exchange up to $50,000,000 aggregate liquidation amount of its
9.27% Series B Capital Securities (the "Series B Capital
Securities" and, together with the Series A Capital Securities,
the "Capital Securities"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act") for a
like liquidation amount of its outstanding Series A Capital
Securities (the "Exchange Offer").
WHEREAS, pursuant to the Exchange Offer, the Guarantor
and the Capital Securities Guarantee Trustee wish to exchange the
Series A Capital Securities Guarantee with respect to any and all
Series A Capital Securities validly tendered to the Issuer
pursuant to the Exchange Offer for this Series B Capital
Securities Guarantee, which is substantially the same as the
Series A Capital Securities Guarantee, except that it has been
registered under the Securities Act and qualified under the Trust
Indenture Act, and which is for the benefit of the Holders of the
Series B Capital Securities.
WHEREAS, as incentive for the holders of Series A
Capital Securities to participate in the Exchange Offer (which
exchange the Guarantor acknowledges shall benefit the Guarantor),
the Guarantor desires irrevocably and unconditionally to agree,
to the extent set forth in this Series B Capital Securities
Guarantee, to pay to the holders of the Series B Capital
Securities the Guarantee Payments (as defined below) and to make
certain other payments on the terms and conditions set forth
therein.
NOW, THEREFORE, in consideration of the premises, the
Guarantor executes and delivers this Series B Capital Securities
Guarantee for the benefit of the Holders.
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation
In this Series B Capital Securities Guarantee, unless
the context otherwise requires:
(a) capitalized terms used in this Series B Capital
Securities Guarantee but not defined in the preamble above have
the respective meanings assigned to them in this Section 1.1;
(b) terms defined in the Declaration as at the date of
execution of this Series B Capital Securities Guarantee have the
same meaning when used in this Series B Capital Securities
Guarantee unless otherwise defined in this Series B Capital
Securities Guarantee;
(c) a term defined anywhere in this Series B Capital
Securities Guarantee has the same meaning throughout;
(d) all references to "the Series B Capital Securities
Guarantee" or "this Series B Capital Securities Guarantee" are to
this Series B Capital Securities Guarantee as modified,
supplemented or amended from time to time;
(e) all references in this Series B Capital Securities
Guarantee to Articles and Sections are to Articles and Sections
of this Series B Capital Securities Guarantee, unless otherwise
specified;
3
(f) a term defined in the Trust Indenture Act has the
same meaning when used in this Series B Capital Securities
Guarantee, unless otherwise defined in this Series B Capital
Securities Guarantee or unless the context otherwise requires;
and
(g) a reference to the singular includes the plural
and vice versa.
"Affiliate" has the same meaning as given to that term
in Rule 405 under the Securities Act of 1933, as amended, or any
successor rule thereunder.
"Business Day" means any day other than a Saturday or
a Sunday, or a day on which banking institutions in The City of
New York or Wilmington, Delaware are authorized or required by
law or executive order to close.
"Capital Securities Guarantee Trustee" means The Chase
Manhattan Bank, a New York banking corporation, until a Successor
Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment pursuant to the terms of this Series B
Capital Securities Guarantee and thereafter means each such
Successor Capital Securities Guarantee Trustee.
"Common Securities" means the securities representing
common undivided beneficial interests in the assets of the
Issuer.
"Corporate Trust Office" means the office of the
Capital Securities Guarantee Trustee at which the corporate trust
business of the Capital Securities Guarantee Trustee shall, at
any particular time, be principally administered, which office at
the date of execution of this Agreement is located at 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covered Person" means any Holder of Series B Capital
Securities.
"Debentures" means the series of subordinated debt
securities of the Guarantor designated the 9.27% Series B Junior
Subordinated Deferrable Interest Debentures due June 6, 2027 held
by the Property Trustee.
"Event of Default" means a default by the Guarantor on
any of its payment or other obligations under this Series B
Capital Securities Guarantee.
"Guarantee Payments" means the following payments or
distributions, without duplication, with respect to the Series B
Capital Securities, to the extent not paid or made by the Issuer:
(i) any accumulated and unpaid Distributions required to be paid
on such Series B Capital Securities, to the extent that the
Issuer has funds on hand legally available therefor, (ii) the
applicable redemption price, including all accumulated and unpaid
Distributions to the date of redemption (the "Redemption Price")
with respect to any Series B Capital Securities called for
redemption by the Issuer, to the extent that the Issuer has funds
on hand legally available therefor, and (iii) upon a voluntary or
involuntary termination and liquidation of the Issuer
4
(other than in connection with the distribution of
Debentures to the Holders in exchange for Series B Capital
Securities as provided in the Declaration), the lesser of (a) the
aggregate of the Liquidation Amount and all accumulated and
unpaid Distributions on the Series B Capital Securities to the
date of payment, to the extent the Issuer has funds on hand
legally available therefor, and (b) the amount of assets of the
Issuer remaining available for distribution to Holders in
liquidation of the Issuer (in either case, the "Liquidation
Distribution"). If an Event of Default has occurred and is
continuing, no Guarantee Payments under the Common Securities
Guarantee with respect to the Common Securities or any guarantee
payment under any Other Common Securities Guarantees shall be
made until the Holders shall be paid in full the Guarantee
Payments to which they are entitled under this Series B Capital
Securities Guarantee.
"Holder" shall mean any holder, as registered on the
books and records of the Issuer, of any Series B Capital
Securities; provided, however, that, in determining whether the
holders of the requisite percentage of Series B Capital
Securities have given any request, notice, consent or waiver
hereunder, "Holder" shall not include the Guarantor or any
Affiliate of the Guarantor.
"Indemnified Person" means the Capital Securities
Guarantee Trustee, any Affiliate of the Capital Securities
Guarantee Trustee, or any officers, directors, shareholders,
members, partners, employees, representatives, nominees,
custodians or agents of the Capital Securities Guarantee Trustee.
"Indenture" means the Indenture dated as of June 6,
1997, among the Guarantor (the "Debenture Issuer") and The Chase
Manhattan Bank, as trustee, pursuant to which the Debentures are
to be issued to the Property Trustee of the Issuer.
"Majority in Liquidation Amount of the Series B
Capital Securities" means, except as provided by the Trust
Indenture Act, a vote by Holder(s) of Series B Capital
Securities, voting separately as a class, of more than 50% of the
aggregate Liquidation Amount (including the stated amount that
would be paid on redemption, liquidation or otherwise, plus
accumulated and unpaid Distributions to the date upon which the
voting percentages are determined) of all Series B Capital
Securities.
"Officers' Certificate" means, with respect to any
person, a certificate signed by two of the following: the
Chairman, a Vice Chairman, the Chief Executive Officer, the
President, a Vice President (whether or not designated by a
number or a word or words added before or after such title), the
Comptroller, the Secretary or an Assistant Secretary of the
Guarantor. Any Officers' Certificate delivered with respect to
compliance with a condition or covenant provided for in this
Series B Capital Securities Guarantee (other than pursuant to
Section 314(a)(4) of the Trust Indenture Act) shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto;
5
(b) a statement that each such officer has made such
examination or investigation as, in such officer's opinion, is
necessary to enable such officer to express an informed opinion
as to whether or not such covenant or condition has been complied
with; and
(c) a statement as to whether, in the opinion of each
such officer, such condition or covenant has been complied with.
"Other Common Securities Guarantees" shall have the
same meaning as "Other Guarantees" in the Common Securities
Guarantee.
"Other Debentures" means all junior subordinated
debentures issued by the Guarantor from time to time and sold to
trusts to be established by the Guarantor (if any), in each case
similar to the Issuer.
"Other Guarantees" means all guarantees issued by the
Guarantor with respect to capital securities (if any) similar to
the Series B Capital Securities issued by other trusts to be
established by the Guarantor (if any), in each case similar to
the Issuer.
"Person" means a legal person, including any
individual, corporation, estate, partnership, joint venture,
association, joint stock company, limited liability company,
trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever
nature.
"Registration Rights Agreement" means the Registration
Rights Agreement, dated as of June 6, 1997, by and among the
Guarantor, the Issuer and the Initial Purchaser named therein as
such agreement may be amended, modified or supplemented from time
to time.
"Responsible Officer" means, with respect to the
Capital Securities Guarantee Trustee, any officer within the
Corporate Trust Office of the Capital Securities Guarantee
Trustee, including any vice president, any assistant vice
president, any secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer, any senior trust
officer or other officer in the Corporate Trust Office of the
Capital Securities Guarantee Trustee customarily performing
functions similar to those performed by any of the above
designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity
with the particular subject.
"Successor Capital Securities Guarantee Trustee" means
a successor Capital Securities Guarantee Trustee possessing the
qualifications to act as Capital Securities Guarantee Trustee
under Section 4.1.
"Trust Indenture Act" means the Trust Indenture Act of
1939, as amended.
6
"Trust Securities" means the Common Securities and the
Capital Securities, collectively.
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application
(a) This Series B Capital Securities Guarantee is
subject to the provisions of the Trust Indenture Act that are
required to be part of this Series B Capital Securities Guarantee
in order for this Series B Capital Securities Guarantee to be a
qualified indenture under the Trust Indenture Act and shall, to
the extent applicable, be governed by such provisions;
(b) this Series B Capital Securities Guarantee has
been qualified under the Trust Indenture Act; and
(c) if and to the extent that any provision of this
Series B Capital Securities Guarantee limits, qualifies or
conflicts with the duties imposed by Section 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall
control.
SECTION 2.2 Lists of Holders of Securities
(a) The Guarantor shall provide the Capital Securities
Guarantee Trustee (unless the Capital Securities Guarantee
Trustee is otherwise the registrar of the Capital Securities) (i)
on a semi-annual basis within 14 days of each regular record date
for the Capital Securities, a list, in such form as the Capital
Securities Guarantee Trustee may reasonably require, of the names
and addresses of the Holders of the Series B Capital Securities
as of such record date; and (ii) at such other times as the
Capital Securities Guarantee Trustee may request in writing,
within 30 days after the receipt by the Guarantor of any such
request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished, provided,
that the Guarantor shall not be obligated to provide such List of
Holders at any time the List of Holders does not differ from the
most recent List of Holders given to the Capital Securities
Guarantee Trustee by the Guarantor. The Capital Securities
Guarantee Trustee may destroy any List of Holders previously
given to it on receipt of a new List of Holders.
(b) The Capital Securities Guarantee Trustee shall
comply with its obligations under Sections 311(a), 311(b) and
312(b) of the Trust Indenture Act.
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee
Within 60 days after May 15 of each year, commencing
May 15, 1998, the Capital Securities Guarantee Trustee shall
provide to the Holders such reports as are required
7
by Section 313 of the Trust Indenture Act, if any, in the form and in
the manner provided by Section 313 of the Trust Indenture Act. The
Capital Securities Guarantee Trustee shall also comply with the
other requirements of Section 313 of the Trust Indenture Act.
SECTION 2.4 Periodic Reports to Capital Securities Guarantee
Trustee
The Guarantor shall provide to the Capital Securities
Guarantee Trustee such documents, reports and information as
required by Section 314 of the Trust Indenture Act (if any) and
the compliance certificate required by Section 314 of the Trust
Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act, provided that
such compliance certificate shall be delivered on or before 120
days after the end of each fiscal year of the Guarantor. Delivery
of such reports, information and documents to the Capital
Securities Guarantee Trustee is for informational purposes only
and the Capital Securities Guarantee Trustee's receipt of such
shall not constitute constructive notice of any information
contained therein or determinable from information contained
therein, including the Guarantor's compliance with any of its
covenants hereunder (as to which the Capital Securities Guarantee
Trustee is entitled to rely exclusively on Officers'
Certificates).
SECTION 2.5 Evidence of Compliance with Conditions Precedent
The Guarantor shall provide to the Capital Securities
Guarantee Trustee such evidence of compliance with any conditions
precedent, if any, provided for in this Series B Capital
Securities Guarantee that relate to any of the matters set forth
in Section 314(c) of the Trust Indenture Act. Any certificate or
opinion required to be given by an officer pursuant to Section
314(c)(1) of the Trust Indenture Act may be given in the form of
an Officers' Certificate.
SECTION 2.6 Events of Default; Waiver
The Holders of a Majority in Liquidation Amount of
Series B Capital Securities may, by vote, on behalf of all of the
Holders, waive any past Event of Default and its consequences.
Upon such waiver, any such Event of Default shall cease to exist,
and any Event of Default arising therefrom shall be deemed to
have been cured, for every purpose of this Series B Capital
Securities Guarantee, but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 2.7 Event of Default; Notice
(a) The Capital Securities Guarantee Trustee shall,
within 90 days after the occurrence of a default with respect to
this Capital Securities Guarantee, mail by first class postage
prepaid, to all Holders, notices of all defaults actually known
to a Responsible Officer of the Capital Securities Guarantee
Trustee, unless such defaults have been cured before the giving
of such notice, provided, that, except in the case of default in
the payment of any Guarantee Payment, the Capital Securities
Guarantee Trustee shall be protected in withholding such notice
if and so long as the board of directors, the executive
committee, or a trust
8
committee of directors and/or Responsible Officer in good faith
determines that the withholding of such notice is in the interests
of the Holders.
(b) The Capital Securities Guarantee Trustee shall not
be deemed to have knowledge of any Event of Default unless the
Capital Securities Guarantee Trustee shall have received written
notice from the Guarantor or a Holder, or a Responsible Officer
charged with the administration of the Declaration shall have
obtained actual knowledge, of such Event of Default.
SECTION 2.8 Conflicting Interests
The Declaration shall be deemed to be specifically
described in this Series B Capital Securities Guarantee for the
purposes of clause (i) of the first proviso contained in Section
310(b) of the Trust Indenture Act.
ARTICLE III
POWERS, DUTIES AND RIGHTS OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities Guarantee
Trustee
(a) This Series B Capital Securities Guarantee shall
be held by the Capital Securities Guarantee Trustee for the
benefit of the Holders, and the Capital Securities Guarantee
Trustee shall not transfer this Series B Capital Securities
Guarantee to any Person except a Holder exercising his or her
rights pursuant to Section 5.4(b) or to a Successor Capital
Securities Guarantee Trustee on acceptance by such Successor
Capital Securities Guarantee Trustee of its appointment to act as
Successor Capital Securities Guarantee Trustee. The right, title
and interest of the Capital Securities Guarantee Trustee shall
automatically vest in any Successor Capital Securities Guarantee
Trustee, and such vesting and succession of title shall be
effective whether or not conveyancing documents have been
executed and delivered pursuant to the appointment of such
Successor Capital Securities Guarantee Trustee.
(b) If an Event of Default actually known to a
Responsible Officer of the Capital Securities Guarantee Trustee
has occurred and is continuing, the Capital Securities Guarantee
Trustee shall enforce this Series B Capital Securities Guarantee
for the benefit of the Holders.
(c) The Capital Securities Guarantee Trustee, before
the occurrence of any Event of Default and after the curing of
all Events of Default that may have occurred, shall undertake to
perform only such duties as are specifically set forth in this
Series B Capital Securities Guarantee, and no implied covenants
shall be read into this Series B Capital Securities Guarantee
against the Capital Securities Guarantee Trustee. In case an
Event of Default has occurred (that has not been cured or waived
pursuant to Section 2.6) and is actually known to a Responsible
Officer of the Capital Securities Guarantee Trustee, the
9
Capital Securities Guarantee Trustee shall exercise such of the rights
and powers vested in it by this Series B Capital Securities
Guarantee, and use the same degree of care and skill in its
exercise thereof, as a prudent person would exercise or use under
the circumstances in the conduct of his or her own affairs.
(d) No provision of this Series B Capital Securities
Guarantee shall be construed to relieve the Capital Securities
Guarantee Trustee from liability for its own negligent action,
its own negligent failure to act, or its own willful misconduct,
except that:
(i) prior to the occurrence of any Event of Default
and after the curing or waiving of all such Events of
Default that may have occurred:
(A) the duties and obligations of the Capital
Securities Guarantee Trustee shall be determined
solely by the express provisions of this Series B
Capital Securities Guarantee, and the Capital
Securities Guarantee Trustee shall not be liable
except for the performance of such duties and
obligations as are specifically set forth in this
Series B Capital Securities Guarantee, and no implied
covenants or obligations shall be read into this
Series B Capital Securities Guarantee against the
Capital Securities Guarantee Trustee; and
(B) in the absence of bad faith on the part of
the Capital Securities Guarantee Trustee, the Capital
Securities Guarantee Trustee may conclusively rely, as
to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates
or opinions furnished to the Capital Securities
Guarantee Trustee and conforming to the requirements
of this Series B Capital Securities Guarantee; but in
the case of any such certificates or opinions that by
any provision hereof are specifically required to be
furnished to the Capital Securities Guarantee Trustee,
the Capital Securities Guarantee Trustee shall be under
a duty to examine the same to determine whether or not
they conform to the requirements of this Series B Capital
Securities Guarantee;
(ii) the Capital Securities Guarantee Trustee shall
not be liable for any error of judgment made in good faith
by a Responsible Officer thereof, unless it shall be proved
that the Capital Securities Guarantee Trustee was negligent
in ascertaining the pertinent facts upon which such
judgment was made;
(iii) the Capital Securities Guarantee Trustee shall
not be liable with respect to any action taken or omitted
to be taken by it in good faith in accordance with the
direction of the Holders of a Majority in Liquidation
Amount of the Series B Capital Securities relating to the
time, method and place of conducting any proceeding for any
remedy available to the Capital Securities Guarantee
Trustee, or exercising any trust or power conferred upon
the Capital Securities Guarantee Trustee under this Series
B Capital Securities Guarantee; and
10
(iv) no provision of this Series B Capital Securities
Guarantee shall require the Capital Securities Guarantee
Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of
its duties or in the exercise of any of its rights or
powers, if the Capital Securities Guarantee Trustee shall
have reasonable grounds for believing that the repayment of
such funds or liability is not reasonably assured to it
under the terms of this Series B Capital Securities
Guarantee or indemnity, reasonably satisfactory to the
Capital Securities Guarantee Trustee, against such risk or
liability is not reasonably assured to it.
SECTION 3.2 Certain Rights of Capital Securities Guarantee Trustee
(a) Subject to the provisions of Section 3.1:
(i) The Capital Securities Guarantee Trustee may
conclusively rely, and shall be fully protected in acting
or refraining from acting, upon any resolution,
certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have
been signed, sent or presented by the proper party or
parties.
(ii) Any direction or act of the Guarantor
contemplated by this Series B Capital Securities Guarantee
may be sufficiently evidenced by an Officers' Certificate.
(iii) Whenever, in the administration of this Series B
Capital Securities Guarantee, the Capital Securities
Guarantee Trustee shall deem it desirable that a matter
be proved or established before taking, suffering or
omitting any action hereunder, the Capital Securities
Guarantee Trustee (unless other evidence is herein
specifically prescribed) may, in the absence of bad faith
on its part, request and conclusively rely upon an
Officers' Certificate which, upon receipt of such request,
shall be delivered by the Guarantor as soon as practicable.
(iv) The Capital Securities Guarantee Trustee shall
have no duty to see to any recording, filing or
registration of any instrument (or any rerecording,
refiling or registration thereof).
(v) The Capital Securities Guarantee Trustee may
consult with counsel of its selection, and the advice or
opinion of such counsel with respect to legal matters shall
be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with such advice
or opinion. Such counsel may be counsel to the Guarantor or
any of its Affiliates and may include any of its employees.
The Capital Securities Guarantee Trustee shall have the
right at any time to seek instructions concerning the
administration of this Series B Capital Securities
Guarantee from any court of competent jurisdiction.
11
(vi) The Capital Securities Guarantee Trustee shall be
under no obligation to exercise any of the rights or powers
vested in it by this Series B Capital Securities Guarantee
at the request or direction of any Holder, unless such
Holder shall have provided to the Capital Securities
Guarantee Trustee such security and indemnity, reasonably
satisfactory to the Capital Securities Guarantee Trustee,
against the costs, expenses (including attorneys' fees and
expenses and the expenses of the Capital Securities
Guarantee Trustee's agents, nominees or custodians) and
liabilities that might be incurred by it in complying with
such request or direction, including such reasonable
advances as may be requested by the Capital Securities
Guarantee Trustee; provided that, nothing contained in this
Section 3.2(a)(vi) shall be taken to relieve the Capital
Securities Guarantee Trustee, upon the occurrence of an
Event of Default, of its obligation to exercise the rights
and powers vested in it by this Series B Capital Securities
Guarantee.
(vii) The Capital Securities Guarantee Trustee shall
not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Capital
Securities Guarantee Trustee, in its discretion, may make
such further inquiry or investigation into such facts or
matters as it may see fit.
(viii) The Capital Securities Guarantee Trustee may
execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through
agents, nominees, custodians or attorneys, and the Capital
Securities Guarantee Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(ix) Any action taken by the Capital Securities
Guarantee Trustee or its agents hereunder shall bind the
Holders, and the signature of the Capital Securities
Guarantee Trustee or its agents alone shall be sufficient
and effective to perform any such action. No third party
shall be required to inquire as to the authority of the
Capital Securities Guarantee Trustee to so act or as to its
compliance with any of the terms and provisions of this
Series B Capital Securities Guarantee, both of which shall
be conclusively evidenced by the Capital Securities
Guarantee Trustee's or its agent's taking such action.
(x) Whenever in the administration of this Series B
Capital Securities Guarantee the Capital Securities
Guarantee Trustee shall deem it desirable to receive
instructions with respect to enforcing any remedy or right
or taking any other action hereunder, the Capital
Securities Guarantee Trustee (i) may request instructions
from the Holders of a Majority in Liquidation Amount of the
Series B Capital Securities, (ii) may refrain from
enforcing such remedy or right or taking such other action
until such instructions are received, and (iii) shall be
protected in conclusively relying on or acting in
accordance with such instructions.
12
(xi) The Capital Securities Guarantee Trustee shall
not be liable for any action taken, suffered, or omitted to
be taken by it in good faith, without negligence, and
reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this
Series B Capital Securities Guarantee.
(b) No provision of this Series B Capital Securities
Guarantee shall be deemed to impose any duty or obligation on the
Capital Securities Guarantee Trustee to perform any act or acts
or exercise any right, power, duty or obligation conferred or
imposed on it in any jurisdiction in which it shall be illegal,
or in which the Capital Securities Guarantee Trustee shall be
unqualified or incompetent in accordance with applicable law, to
perform any such act or acts or to exercise any such right,
power, duty or obligation. No permissive power or authority
available to the Capital Securities Guarantee Trustee shall be
construed to be a duty.
SECTION 3.3 Not Responsible for Recitals or Issuance of Series B
Capital Securities Guarantee
The recitals contained in this Series B Capital
Securities Guarantee shall be taken as the statements of the
Guarantor, and the Capital Securities Guarantee Trustee does not
assume any responsibility for their correctness. The Capital
Securities Guarantee Trustee makes no representation as to the
validity or sufficiency of this Series B Capital Securities
Guarantee.
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility
(a) There shall at all times be a Capital Securities
Guarantee Trustee which shall:
(i) not be an Affiliate of the Guarantor; and
(ii) be a corporation organized and doing business
under the laws of the United States of America or any State
or Territory thereof or of the District of Columbia, or a
corporation or Person permitted by the Securities and
Exchange Commission to act as an institutional trustee
under the Trust Indenture Act, authorized under such laws
to exercise corporate trust powers, having a combined
capital and surplus of at least 50 million U.S. dollars
($50,000,000), and subject to supervision or examination by
Federal, State, Territorial or District of Columbia
authority. If such corporation publishes reports of
condition at least annually, pursuant to law or to the
requirements of the supervising or examining authority
referred to above, then, for the purposes of this Section
4.1(a)(ii), the combined capital and surplus of such
corporation
13
shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published.
(b) If at any time the Capital Securities Guarantee
Trustee shall cease to be eligible to so act under Section
4.1(a), the Capital Securities Guarantee Trustee shall
immediately resign in the manner and with the effect set out in
Section 4.2(c).
(c) If the Capital Securities Guarantee Trustee has or
shall acquire any "conflicting interest" within the meaning of
Section 310(b) of the Trust Indenture Act, the Capital Securities
Guarantee Trustee and Guarantor shall in all respects comply with
the provisions of Section 310(b) of the Trust Indenture Act,
subject to the penultimate paragraph thereof.
SECTION 4.2 Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee
(a) Subject to Section 4.2(b), the Capital Securities
Guarantee Trustee may be appointed or removed without cause at
any time by the Guarantor except during an Event of Default.
(b) The Capital Securities Guarantee Trustee shall not
be removed in accordance with Section 4.2(a) until a Successor
Capital Securities Guarantee Trustee has been appointed and has
accepted such appointment by written instrument executed by such
Successor Capital Securities Guarantee Trustee and delivered to
the Guarantor.
(c) The Capital Securities Guarantee Trustee shall
hold office until a Successor Capital Securities Guarantee
Trustee shall have been appointed or until its removal or
resignation. The Capital Securities Guarantee Trustee may resign
from office (without need for prior or subsequent accounting) by
an instrument in writing executed by the Capital Securities
Guarantee Trustee and delivered to the Guarantor, which
resignation shall not take effect until a Successor Capital
Securities Guarantee Trustee has been appointed and has accepted
such appointment by instrument in writing executed by such
Successor Capital Securities Guarantee Trustee and delivered to
the Guarantor and the resigning Capital Securities Guarantee
Trustee.
(d) If no Successor Capital Securities Guarantee
Trustee shall have been appointed and accepted appointment as
provided in this Section 4.2 within 60 days after delivery of an
instrument of removal or resignation, the Capital Securities
Guarantee Trustee resigning or being removed may petition any
court of competent jurisdiction for appointment of a Successor
Capital Securities Guarantee Trustee. Such court may thereupon,
after prescribing such notice, if any, as it may deem proper,
appoint a Successor Capital Securities Guarantee Trustee.
(e) No Capital Securities Guarantee Trustee shall be
liable for the acts or omissions to act of any Successor Capital
Securities Guarantee Trustee.
14
(f) Upon termination of this Series B Capital
Securities Guarantee or removal or resignation of the Capital
Securities Guarantee Trustee pursuant to this Section 4.2, the
Guarantor shall pay to the Capital Securities Guarantee Trustee
all amounts due to the Capital Securities Guarantee Trustee
accrued to the date of such termination, removal or resignation.
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee
The Guarantor irrevocably and unconditionally agrees
to pay in full to the Holders the Guarantee Payments (without
duplication of amounts theretofore paid by the
Issuer), as and when due, regardless of any defense, right of
set-off or counterclaim that the Issuer may have or assert. The
Guarantor's obligation to make a Guarantee Payment may be
satisfied by direct payment of the required amounts by the
Guarantor to the Holders or by causing the Issuer to pay such
amounts to the Holders.
SECTION 5.2 Waiver of Notice and Demand
The Guarantor hereby waives notice of acceptance of
this Series B Capital Securities Guarantee and of any liability
to which it applies or may apply, presentment, demand for
payment, any right to require a proceeding first against the
Issuer or any other Person before proceeding against the
Guarantor, protest, notice of nonpayment, notice of dishonor,
notice of redemption and all other notices and demands.
SECTION 5.3 Obligations Not Affected
The obligations, covenants, agreements and duties of
the Guarantor under this Series B Capital Securities Guarantee
shall in no way be affected or impaired by reason of the
happening from time to time of any of the following:
(a) the release or waiver, by operation of law or
otherwise, of the performance or observance by the Issuer of any
express or implied agreement, covenant, term or condition
relating to the Series B Capital Securities to be performed or
observed by the Issuer;
(b) the extension of time for the payment by the
Issuer of all or any portion of the Distributions, Redemption
Price, Liquidation Distribution or any other sums payable under
the terms of the Series B Capital Securities or the extension of
time for the performance of any other obligation under, arising
out of, or in connection with, the Series B Capital Securities
(other than an extension of time for payment of Distributions,
Redemption Price,
15
Liquidation Distribution or other sum payable that results from the
extension of any interest payment period on the Debentures permitted
by the Indenture);
(c) any failure, omission, delay or lack of diligence
on the part of the Holders to enforce, assert or exercise any
right, privilege, power or remedy conferred on the Holders
pursuant to the terms of the Series B Capital Securities, or any
action on the part of the Issuer granting indulgence or extension
of any kind;
(d) voluntary or involuntary liquidation, dissolution,
sale of any collateral, receivership, insolvency, bankruptcy,
assignment for the benefit of creditors, reorganization,
arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of
the Issuer;
(e) any invalidity of, or defect or deficiency in, the
Series B Capital Securities;
(f) the settlement or compromise of any obligation
guaranteed hereby or hereby incurred; or
(g) any other circumstance whatsoever that might
otherwise constitute a legal or equitable discharge or defense of
a guarantor, it being the intent of this Section 5.3 that the
obligations of the Guarantor with respect to the Guarantee
Payments shall be absolute and unconditional under any and all
circumstances.
There shall be no obligation of the Holders to give
notice to, or obtain consent of, the Guarantor with respect to
the happening of any of the foregoing.
SECTION 5.4 Rights of Holders
(a) The Holders of a Majority in Liquidation Amount of
the Series B Capital Securities have the right to direct the
time, method and place of conducting any proceeding for any
remedy available to the Capital Securities Guarantee Trustee in
respect of this Series B Capital Securities Guarantee or
exercising any trust or power conferred upon the Capital
Securities Guarantee Trustee under this Series B Capital
Securities Guarantee, provided that, subject to Section 3.1, the
Capital Securities Guarantee Trustee shall have the right to
decline to follow any such direction if the Capital Securities
Guarantee Trustee shall determine that the action so directed
would be unjustly prejudicial to the holders not taking part in
such direction or if the Capital Securities Guarantee Trustee
being advised by counsel determines that the action or proceeding
so directed may not lawfully be taken or if the Capital
Securities Guarantee Trustee in good faith by its board of
directors or trustees, executive committee, or a trust committee
of directors or trustees and/or Responsible Officers shall
determine that the action or proceeding so directed would involve
the Capital Securities Guarantee Trustee in personal liability.
16
(b) If the Capital Securities Guarantee Trustee fails
to enforce such Series B Capital Securities Guarantee, any Holder
may institute a legal proceeding directly against the Guarantor
to enforce the Capital Securities Guarantee Trustee's rights
under this Series B Capital Securities Guarantee, without first
instituting a legal proceeding against the Issuer, the Capital
Securities Guarantee Trustee or any other person or entity. The
Guarantor waives any right or remedy to require that any action
be brought first against the Issuer or any other person or entity
before proceeding directly against the Guarantor.
SECTION 5.5 Guarantee of Payment
This Series B Capital Securities Guarantee creates a
guarantee of payment and not of collection.
SECTION 5.6 Subrogation
The Guarantor shall be subrogated to all (if any)
rights of the Holders against the Issuer in respect of any
amounts paid to such Holders by the Guarantor under this Series B
Capital Securities Guarantee; provided, however, that the
Guarantor shall not (except to the extent required by mandatory
provisions of law) be entitled to enforce or exercise any right
that it may acquire by way of subrogation or any indemnity,
reimbursement or other agreement, in all cases as a result of
payment under this Series B Capital Securities Guarantee, if, at
the time of any such payment, any amounts are due and unpaid
under this Series B Capital Securities Guarantee. If any amount
shall be paid to the Guarantor in violation of the preceding
sentence, the Guarantor agrees to hold such amount in trust for
the Holders and to pay over such amount to the Holders.
SECTION 5.7 Independent Obligations
The Guarantor acknowledges that its obligations
hereunder are independent of the obligations of the Issuer with
respect to the Series B Capital Securities, and that the
Guarantor shall be liable as principal and as debtor hereunder to
make Guarantee Payments pursuant to the terms of this Series B
Capital Securities Guarantee notwithstanding the occurrence of
any event referred to in subsections (a) through (g), inclusive,
of Section 5.3 hereof.
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions
So long as any Capital Securities remain outstanding,
the Guarantor shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Guarantor's
capital stock (which includes common and preferred stock), (ii)
make any payment of principal, interest or premium, if any,
17
with respect to or repay, repurchase or redeem any debt
securities of the Guarantor (including any Other Debentures)
that rank pari passu with or junior in right of payment to the
Debentures or (iii) make any guarantee payments with respect to
any guarantee by the Guarantor of the debt securities of any
subsidiary of the Guarantor (including Other Guarantees) if such
guarantee ranks pari passu with or junior in right of payment to
the Debentures (other than (a) dividends or distributions in
shares of or options, warrants or rights to subscribe for or
purchase shares of, common stock of the Guarantor, (b) any
declaration of a dividend in connection with the implementation
of a stockholders' rights plan, or the issuance of stock under
any such plan in the future, or the redemption or repurchase of
any such rights pursuant thereto, (c) payments under the Capital
Securities Guarantee, (d) as a result of a reclassification of
the Guarantor's capital stock or the exchange or the conversion
of one class or series of the Guarantor's capital stock for
another class or series of the Guarantor's capital stock, (e) the
purchase of fractional interests in shares of the Guarantor's
capital stock pursuant to the conversion or exchange provisions
of such capital stock or the security being converted or
exchanged, and (f) purchases of common stock related to the
issuance of common stock or rights under any of the Guarantor's
benefit plans for its directors, officers or employees or any of
the Guarantor's dividend reinvestment plans) if at such time (i)
there shall have occurred any event of which the Guarantor has
actual knowledge that (a) is, or with the giving of notice or the
lapse of time, or both, would be an Event of Default and (b) in
respect of which the Guarantor shall not have taken reasonable
steps to cure, (ii) if such Debentures are held by the Property
Trustee, the Guarantor shall be in default with respect to its
payment of any obligations under this Series B Capital Securities
Guarantee or (iii) the Guarantor shall have given notice of its
election of the exercise of its right to extend the interest
payment period pursuant to Section 16.01 of the Indenture and any
such extension shall be continuing.
SECTION 6.2 Ranking
This Series B Capital Securities Guarantee will
constitute an unsecured obligation of the Guarantor and will rank
(i) subordinate and junior in right of payment to all Senior
Indebtedness (as defined in the Indenture) in the same manner
that the Debentures are subordinated to all Senior Indebtedness
pursuant to the Indenture (except as indicated below), it being
understood that the terms of Article XV of the Indenture shall
apply to the obligations of the Guarantor under this Series B
Capital Securities Guarantee as if (x) such Article XV were set
forth herein in full and (y) such obligations were substituted
for the term "Securities" appearing in such Article XV, except
that with respect to Section 15.03 of the Indenture only, the
term "Senior Indebtedness" shall mean all liabilities of the
Guarantor, whether or not for money borrowed (other than
obligations in respect of Other Guarantees), (ii) pari passu with
the most senior preferred or preference stock now or hereafter
issued by the Guarantor and with any Other Guarantee (as defined
herein) and any Other Common Securities Guarantee and any
guarantee now or hereafter entered into by the Guarantor in
respect of any preferred or preference stock of any Affiliate of
the Guarantor, and (iii) senior to the Guarantor's common stock.
18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination
This Series B Capital Securities Guarantee shall
terminate (i) upon full payment of the Redemption Price (as
defined in the Declaration) of all Series B Capital Securities,
or (ii) upon liquidation of the Issuer, the full payment of the
amounts payable in accordance with the Declaration or the
distribution of the Debentures to all of the Holders.
Notwithstanding the foregoing, this Series B Capital Securities
Guarantee will continue to be effective or will be reinstated, as
the case may be, if at any time any Holder must restore payment
of any sums paid under the Series B Capital Securities or under
this Series B Capital Securities Guarantee.
ARTICLE VIII
COMPENSATION AND EXPENSES OF
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 8.1 Compensation and Expenses of Capital Securities
Guarantee Trustee
The Guarantor covenants and agrees to pay to the
Capital Securities Guarantee Trustee from time to time, and the
Capital Securities Guarantee Trustee shall be entitled to, such
compensation as shall be agreed to in writing between the
Guarantor and the Capital Securities Guarantee Trustee (which
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and the Guarantor
will pay or reimburse the Capital Securities Guarantee Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred by or made by the Capital Securities Guarantee
Trustee in accordance with any of the provisions of this Capital
Securities Guarantee (including the reasonable compensation and
the expenses and disbursements of its counsel and of all persons
not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad
faith. The Guarantor also covenants to indemnify each of the
Capital Securities Guarantee Trustee (and its officers, agents,
directors and employees) for, and to hold it harmless against,
any and all loss, damage, claim, liability or expense including
taxes (other than taxes based on the income of the Capital
Securities Guarantee Trustee) incurred without negligence or bad
faith on the part of the Capital Securities Guarantee Trustee and
arising out of or in connection with the acceptance or
administration of this guarantee, including the costs and
expenses of defending itself against any claim or liability in
the premises. The obligations of the Guarantor under this Article
VIII to compensate and indemnify the Capital Securities Guarantee
Trustee and to pay or reimburse the Capital Securities Guarantee
Trustee for expenses, disbursements and advances shall be secured
by a lien prior to that of the Series B Capital Securities upon all
property and funds held or collected by the Capital Securities
Guarantee Trustee as such, except funds held in trust for the
benefit of the holders of particular Series B Capital Securities.
19
The provisions of this Article shall survive the
termination of this Capital Securities Guarantee.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation
(a) No Indemnified Person shall be liable, responsible
or accountable in damages or otherwise to the Guarantor or any
Covered Person for any loss, damage or claim incurred by reason
of any act or omission performed or omitted by such Indemnified
Person in good faith in accordance with this Series B Capital
Securities Guarantee and in a manner that such Indemnified Person
reasonably believed to be within the scope of the authority
conferred on such Indemnified Person by this Series B Capital
Securities Guarantee or by law, except that an Indemnified Person
shall be liable for any such loss, damage or claim incurred by
reason of such Indemnified Person's negligence or willful
misconduct with respect to such acts or omissions.
(b) An Indemnified Person shall be fully protected in
relying in good faith upon the records of the Guarantor and upon
such information, opinions, reports or statements presented to
the Guarantor by any Person as to matters the Indemnified Person
reasonably believes are within such other Person's professional
or expert competence including information, opinions, reports or
statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence
and amount of assets from which Distributions to Holders of
Series B Capital Securities might properly be paid.
SECTION 9.2 Indemnification
The Guarantor agrees to indemnify each Indemnified
Person for, and to hold each Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense incurred
without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses (including
reasonable legal fees and expenses) of defending itself against,
or investigating, any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
The obligation to indemnify as set forth in this Section 9.2
shall survive the termination of this Series B Capital Securities
Guarantee.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns
20
All guarantees and agreements contained in this Series
B Capital Securities Guarantee shall bind the successors,
assigns, receivers, trustees and representatives of the Guarantor
and shall inure to the benefit of the Holders of the Series B
Capital Securities then outstanding.
SECTION 10.2 Amendments
Except with respect to any changes that do not
materially adversely affect the rights of Holders (in which case
no consent of Holders will be required), this Series B Capital
Securities Guarantee may only be amended with the prior approval
of the Holders of a Majority in Liquidation Amount of the Series
B Capital Securities (including the stated amount that would be
paid on redemption, liquidation or otherwise, plus accrued and
unpaid Distributions to the date upon which the voting
percentages are determined). The provisions of the Declaration
with respect to consents to amendments (whether at a meeting or
otherwise) shall apply to the giving of such approval.
SECTION 10.3 Notices
All notices provided for in this Series B Capital
Securities Guarantee shall be in writing, duly signed by the
party giving such notice, and shall be delivered, telecopied or
mailed by first class mail, as follows:
(a) If given to the Issuer, in care of the
Administrators at the Issuer's mailing address set forth below
(or such other address as the Issuer may give notice of to the
Holders and the Capital Securities Guarantee Trustee):
ALBANK Capital Trust I
c/o ALBANK Financial Corporation
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
(b) If given to the Capital Securities Guarantee
Trustee, at the Capital Securities Guarantee Trustee's mailing
address set forth below (or such other address as the Capital
Securities Guarantee Trustee may give notice of to the Holders):
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trustee
Administration Department
Telecopy: (000) 000-0000/8160
21
(c) If given to the Guarantor, at the Guarantor's
mailing address set forth below (or such other address as the
Guarantor may give notice of to the Holders and the Capital
Securities Guarantee Trustee):
ALBANK Financial Corporation
00 Xxxxx Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
(d) If given to any Holder, at the address set forth
on the books and records of the Issuer.
All such notices shall be deemed to have been given
when received in person, telecopied with receipt confirmed, or
mailed by first class mail, postage prepaid except that if a
notice or other document is refused delivery or cannot be
delivered because of a changed address of which no notice was
given, such notice or other document shall be deemed to have been
delivered on the date of such refusal or inability to deliver.
SECTION 10.4 Benefit
This Series B Capital Securities Guarantee is solely
for the benefit of the Holders and, subject to Section 3.1(a), is
not separately transferable from the Series B Capital Securities.
SECTION 10.5 Governing Law
THIS SERIES B CAPITAL SECURITIES GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES THEREOF.
22
THIS SERIES B CAPITAL SECURITIES GUARANTEE is executed
as of the day and year first above written.
ALBANK FINANCIAL CORPORATION,
as Guarantor
By: ______________________________
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
The Chase Manhattan Bank, as Capital
Securities Guarantee Trustee
By: ______________________________
Name:
Title:
81022
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions and Interpretation.......................3
ARTICLE II
TRUST INDENTURE ACT
SECTION 2.1 Trust Indenture Act; Application.....................7
SECTION 2.2 Lists of Holders of Securities.......................7
SECTION 2.3 Reports by the Capital Securities Guarantee Trustee..7
SECTION 2.4 Periodic Reports to Capital Securities Guarantee
Trustee..............................................8
SECTION 2.5 Evidence of Compliance with Conditions Precedent.....8
SECTION 2.6 Events of Default; Waiver............................8
SECTION 2.7 Event of Default; Notice.............................8
SECTION 2.8 Conflicting Interests................................9
ARTICLE III
POWERS, DUTIES AND RIGHTS OF CAPITAL SECURITIES GUARANTEE
TRUSTEE
SECTION 3.1 Powers and Duties of the Capital Securities
Guarantee Trustee....................................9
SECTION 3.2 Certain Rights of Capital Securities Guarantee
Trustee.............................................11
SECTION 3.3 Not Responsible for Recitals or Issuance of
Series B Capital Securities Guarantee...............13
ARTICLE IV
CAPITAL SECURITIES GUARANTEE TRUSTEE
SECTION 4.1 Capital Securities Guarantee Trustee; Eligibility...13
SECTION 4.2 Appointment, Removal and Resignation of Capital
Securities Guarantee Trustee........................14
ARTICLE V
GUARANTEE
SECTION 5.1 Guarantee...........................................15
SECTION 5.2 Waiver of Notice and Demand.........................15
SECTION 5.3 Obligations Not Affected............................15
SECTION 5.4 Rights of Holders...................................16
SECTION 5.5 Guarantee of Payment................................17
SECTION 5.6 Subrogation.........................................17
SECTION 5.7 Independent Obligations.............................17
ARTICLE VI
LIMITATION OF TRANSACTIONS; SUBORDINATION
SECTION 6.1 Limitation of Transactions..........................17
SECTION 6.2 Ranking.............................................18
ARTICLE VII
TERMINATION
SECTION 7.1 Termination.........................................19
ARTICLE VIII
COMPENSATION AND EXPENSES OF CAPITAL SECURITIES GUARANTEE
TRUSTEE
SECTION 8.1 Compensation and Expenses of Capital Securities
Guarantee Trustee...................................19
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Exculpation.........................................20
SECTION 9.2 Indemnification.....................................20
ARTICLE X
MISCELLANEOUS
SECTION 10.1 Successors and Assigns..............................20
SECTION 10.2 Amendments..........................................21
SECTION 10.3 Notices.............................................21
SECTION 10.4 Benefit.............................................22
SECTION 10.5 Governing Law.......................................22
