EXHIBIT 1.0
UNDERWRITING AGREEMENT
BANKNORTH GROUP, INC.
(a Maine corporation)
and
BANKNORTH CAPITAL TRUST II
(a Delaware statutory business trust)
8,000,000 Capital Securities
8% Capital Securities
(Liquidation Amount $25 Per Capital Security)
Dated: February 14, 2002
Table of Contents
Page
----
SECTION 1. Representations and Warranties.......................................................3
(a) Representations and Warranties by the Company and the Trust.....................................3
(i) Compliance with Registration Requirements..............................................3
(ii) Incorporated Documents.................................................................4
(iii) Independent Accountants................................................................4
(iv) Financial Statements...................................................................4
(v) No Material Adverse Change in Business.................................................5
(vi) Good Standing of the Company...........................................................5
(vii) Good Standing of the Bank..............................................................5
(viii) FDI Act................................................................................5
(ix) Good Standing of Subsidiaries..........................................................6
(x) Existence of Trust.....................................................................6
(xi) Common Securities......................................................................6
(xii) Authorization of Trust Agreement.......................................................6
(xiii) Guarantee Agreement....................................................................6
(xiv) Capital Securities.....................................................................7
(xv) Authorization of Indenture.............................................................7
(xvi) Authorization of Debentures............................................................7
(xvii) Administrative Trustees................................................................7
(xviii) Authorization of Agreement.............................................................8
(xix) Capitalization.........................................................................8
(xx) Absence of Defaults and Conflicts......................................................8
(xxi) Absence of Labor Dispute...............................................................9
(xxii) Absence of Proceedings.................................................................9
(xxiii) Possession of Insurance................................................................9
(xxiv) Possession of Intellectual Property....................................................9
(xxv) Possession of Licenses and Permits.....................................................9
(xxvi) Manipulation..........................................................................10
(xxvii) Investment Company Act................................................................10
(xxviii) Other Contracts.......................................................................10
(xxix) Absence of Further Requirements.......................................................10
(xxx) Title to Property.....................................................................10
(b) Officers' Certificates.........................................................................11
SECTION 2. Sale and Delivery to Underwriters; Closing..........................................11
(a) Capital Securities.............................................................................11
(b) Payment........................................................................................11
(c) Denominations; Registration....................................................................12
SECTION 3. Covenants of the Company and the Trust..............................................12
(a) Compliance with Securities Regulations and Commission Requests.................................12
(b) Filing of Amendments...........................................................................12
(c) Delivery of Registration Statements............................................................13
(d) Delivery of Prospectus.........................................................................13
(e) Continued Compliance with Securities Laws......................................................13
i
(f) Blue Sky Qualifications........................................................................13
(g) Rule 158.......................................................................................14
(h) DTC ......................................................................................14
(i) Use of Proceeds................................................................................14
(j) Restriction on Sale of Securities..............................................................14
(k) Listing ......................................................................................14
(l) Reporting Requirements.........................................................................14
SECTION 4. Payment of Expenses.................................................................14
(a) Expenses.......................................................................................14
(b) Termination of Agreement.......................................................................15
SECTION 5. Conditions of Underwriters' Obligations.............................................15
(a) Effectiveness of Registration Statement........................................................15
(b) Opinion of Counsel for Company.................................................................15
(c) Opinion of Special Tax Counsel for the Trust and the Company...................................16
(d) Opinion of Special Delaware Counsel for the Trust and the Company..............................16
(e) Opinion of Counsel for The Bank of New York....................................................16
(f) Opinion of Counsel for Underwriters............................................................16
(g) Officers' Certificates.........................................................................17
(h) Accountant's Comfort Letter....................................................................17
(i) Bring-down Comfort Letter......................................................................17
(j) Maintenance of Rating..........................................................................18
(k) Additional Documents...........................................................................18
(l) Termination of Agreement.......................................................................18
(m) Approval of Listing............................................................................18
SECTION 6. Indemnification.....................................................................18
(a) Indemnification of Underwriters................................................................18
(b) Indemnification of Trust by Company............................................................19
(c) Indemnification of Trust, Company, Directors and Officers......................................19
(d) Actions against Parties; Notification..........................................................20
(e) Settlement without Consent if Failure to Reimburse.............................................20
SECTION 7. Contribution........................................................................20
SECTION 8. Representations, Warranties and Agreements to Survive Delivery......................22
SECTION 9. Termination of Agreement............................................................22
(a) Termination; General...........................................................................22
(b) Liabilities....................................................................................22
SECTION 10. Default by One or More of the Underwriters..........................................22
SECTION 11. Notices.............................................................................24
SECTION 12. Parties.............................................................................24
SECTION 13. GOVERNING LAW AND TIME..............................................................24
SECTION 14. Effect of Headings..................................................................24
ii
SCHEDULE
Schedule A -- List of Underwriters..................................................Sch. A-1
EXHIBITS
Exhibit A -- Form of Opinion of Company's Counsel........................................A-1
Exhibit B -- Form of Opinion of Trust's Special Delaware Counsel.........................B-1
iii
BANKNORTH GROUP, INC.
(a Maine corporation) and
BANKNORTH CAPITAL TRUST II
(a Delaware statutory business trust)
8,000,000 Capital Securities
8% Capital Securities
(Liquidation Amount $25 Per Capital Security)
UNDERWRITING AGREEMENT
February 14, 2002
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc.
▇▇▇▇▇▇ Brothers Inc.
as Representatives of the several Underwriters
c/▇ ▇▇▇▇▇▇ Brothers Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Banknorth Capital Trust II (the "Trust"), a statutory business trust
organized under the Business Trust Act (the "Delaware Act") of the State of
Delaware (Chapter 38, Title 12 of the Delaware Code, 12 Del. C. ss. ss. 3801 et
seq.), confirms its agreement with ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. ("▇▇▇▇▇,
▇▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ Brothers Inc. ("▇▇▇▇▇▇ Brothers") and each of the other
Underwriters named in Schedule A hereto (collectively the "Underwriters," which
term shall also include any underwriter substituted as hereinafter provided in
Section 10 hereof), for whom ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ Brothers are acting as
Representatives (in such capacity, the "Representatives") with respect to the
issue and sale by the Trust and the purchase by the Underwriters, acting
severally and not jointly, of 8,000,000 8% Capital Securities (liquidation
amount $25 per capital security) in the respective numbers set forth in said
Schedule A hereto (the "Capital Securities"). The Capital Securities are more
fully described in the Prospectus (as defined below).
The Capital Securities and the Common Securities, referred to below,
will be guaranteed by Banknorth Group, Inc., Maine corporation (the "Company"),
to the extent set forth in the Prospectus, with respect to distributions and
amounts payable upon liquidation or redemption (the "Securities Guarantee")
pursuant to the Guarantee Agreement (the "Guarantee Agreement")
to be dated as of Closing Time (as defined below), executed and delivered by the
Company and The Bank of New York (the "Guarantee Trustee"), a New York banking
corporation not in its individual capacity but solely as trustee, for the
benefit of the holders from time to time of the Capital Securities and the
Common Securities referred to below. The Company and the Trust each understand
that the Underwriters propose to make a public offering of the Capital
Securities as soon as the Representatives deem advisable after this Agreement
has been executed and delivered, and the Trust Agreement (as defined herein),
the Indenture (as defined herein), and the Capital Securities Guarantee
Agreement have been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 Act"). The entire proceeds from the sale of the Capital Securities
will be combined with the entire proceeds from the sale by the Trust to the
Company of its common securities (the "Common Securities") guaranteed by the
Company, to the extent set forth in the Prospectus, with respect to
distributions and amounts payable upon liquidation or redemption pursuant to the
Guarantee Agreement and will be used by the Trust to purchase $206,185,575
aggregate principal amount of 8% Junior Subordinated Debentures due April 1,
2032 (the "Debentures") issued by the Company. The Capital Securities and the
Common Securities will be issued pursuant to the Amended and Restated Trust
Agreement, to be dated as of Closing Time (the "Trust Agreement"), among the
Company, as sponsor, The Bank of New York, as property trustee (the "Property
Trustee"), The Bank of New York (Delaware), as Delaware trustee (the "Delaware
Trustee"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
administrative trustees (the "Administrative Trustees" and together with the
Property Trustee and the Delaware Trustee, the "Trustees"), and the holders from
time to time of undivided beneficial interests in the assets of the Trust. The
Debentures will be issued pursuant to an Indenture, dated as of Closing Time
(the "Indenture"), between the Company and The Bank of New York, as trustee (the
"Debenture Trustee"). The Capital Securities, the Securities Guarantee and the
Debentures are collectively referred to herein as the "Securities." Capitalized
terms used herein without definition have the respective meanings specified in
the Prospectus.
The Company and the Trust have filed with the Securities and Exchange
Commission (the "Commission") a shelf registration statement on Form S-3 (Nos.
333-81980 and 333-81980-01), as amended by Pre-effective Amendment No. 1
thereto, including the related preliminary prospectus, covering the registration
of the Securities under the Securities Act of 1933, as amended (the "1933 Act"),
which permits the delayed or continuous offering of securities pursuant to Rule
415 of the rules and regulations of the Commission under the 1933 Act (the "1933
Act Regulations"). Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus (including a prospectus
supplement relating to the Securities) in accordance with the provisions of Rule
430A ("Rule 430A") of the 1933 Act Regulations, if applicable, and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company
has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
prepare and file a term sheet (a "Term Sheet") in accordance with the provisions
of Rule 434 and Rule 424(b). The information included in such prospectus or in
such Term Sheet, as the case may be, that was omitted from such registration
statement at the time it became effective but that is deemed to be part of such
registration statement at the time it became effective (a) pursuant to paragraph
(b) of Rule 430A is referred to as "Rule 430A Information" or (b) pursuant to
paragraph (d) of Rule 434 is referred to as "Rule 434 Information." The term
"preliminary prospectus" means a preliminary prospectus supplement specifically
relating to the Capital Securities together with a base prospectus. Such
registration statement, including the exhibits thereto, schedules thereto, if
any, and the documents
2
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, at the time it became effective and including the Rule 430A Information and
the Rule 434 Information, if any, is herein called the "Registration Statement."
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations is herein referred to as the "Rule 462(b) Registration Statement,"
and after such filing the term "Registration Statement" shall include the Rule
462(b) Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Capital Securities, is herein called the "Prospectus." If
Rule 434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated February 11, 2002 together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, the preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, any preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Trust. The
Company and the Trust jointly and severally represent and warrant to each
Underwriter as of the date hereof and as of the Closing Time (as defined below)
(in each case, a "Representation Date"), and agrees with each Underwriter, as
follows:
(i) Compliance with Registration Requirements. The Company
meets the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company and the Trust, are
contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective, at the date hereof, and at each Representation Date, the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
3
with the requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act (the
"1939 Act Regulations") and did not and will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading. Neither the
Prospectus nor any amendments or supplements thereto, at the time the Prospectus
or any such amendment or supplement was issued and at the Closing Time included
or will include an untrue statement of a material fact or omitted or will omit
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. If
Rule 434 is used, the Company and the Trust will comply with the requirements of
Rule 434. The representations and warranties in this subsection shall not apply
(A) to statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the Trust
or the Company in writing by any Underwriter through ▇▇▇▇▇▇ Brothers expressly
for use in the Registration Statement or the Prospectus or (B) to that part of
the Registration Statement that constitutes the Statements of Eligibility and
Qualification on Form T-1 (the "Forms T-1") under the Trust Indenture Act of the
Debenture Trustee, the Property Trustee and the Guarantee Trustee.
Each preliminary prospectus and the preliminary prospectus filed as part
of the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and any preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or
deemed to be incorporated by reference in the Registration Statement and the
Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the
1934 Act and the rules and regulations of the Commission thereunder (the "1934
Act Regulations") and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the date
hereof, at the time the Prospectus was issued and at Closing Time did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading.
(iii) Independent Accountants. The accountants who certified
the financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements. The financial statements
incorporated by reference in the Registration Statement and the Prospectus,
together with the related schedules and notes, present fairly, in all material
respects, the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statement present fairly in
accordance with GAAP
4
the information required to be stated therein. The selected financial data
included in the Prospectus present fairly the information shown therein and have
been compiled on a basis consistent with that of the audited financial
statements incorporated by reference in the Registration Statement.
(v) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, except as otherwise stated therein, (A) there has been no
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its subsidiaries, other
than those in the ordinary course of business, which are material with respect
to the Company and its subsidiaries considered as one enterprise and (C) there
has been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock, except for dividends paid by the
Company in the ordinary course of business consistent with past practice.
(vi) Good Standing of the Company. The Company has been duly
organized and is validly existing as a corporation under the laws of the State
of Maine and has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; the Company is duly
qualified as a foreign corporation to transact business and is in good standing
in each other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect; and the Company is duly registered as a
bank holding company and a financial holding company under the Bank Holding
Company Act of 1956, as amended.
(vii) Good Standing of the Bank. Banknorth, NA (the "Bank") is
a duly organized and validly existing national banking association under the
laws of the United States, continues to hold a valid certificate to do business
as such, has full power and authority to conduct its business as such and has
the authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus. The Bank is duly authorized to transact
business and is in good standing in each jurisdiction in which it owns or leases
property of a nature, or transacts business of a type, that would make such
authorization necessary, except to the extent that the failure to be so
authorized or be in good standing would not have a Material Adverse Effect. All
of the issued and outstanding capital stock of the Bank has been duly authorized
and validly issued and is fully paid and non-assessable (except to the extent
provided in the National Bank Act); and all such capital stock of the Bank is
owned by the Company, free and clear of any pledge, lien, encumbrance or equity.
The Company has no subsidiaries which would constitute a "significant
subsidiary" as defined in Rule 1-02 of Regulation S-X, other than the Bank.
(viii) FDI Act. The Bank is an insured depositary under the
provisions of the Federal Deposit Insurance Act, as amended (the "FDI Act").
5
(ix) Good Standing of Subsidiaries. Each of the Company's
subsidiaries other than the Bank has been duly incorporated and is validly
existing or subsisting, as the case may be, as a corporation in good standing
under the laws of the jurisdiction of its incorporation or organization and, to
the extent applicable, each such subsidiary is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in
which such qualification is required, except for such jurisdictions where the
failure to be so qualified would not have a Material Adverse Effect; all of the
issued and outstanding capital stock of each such subsidiary has been duly
authorized and validly issued and is fully paid and non-assessable; except as
set forth or incorporated by reference in the Prospectus, the capital stock of
each such subsidiary is owned by the Company, free and clear of any pledge,
lien, encumbrance, claim or equity.
(x) Existence of Trust. The Trust has been duly created and
is validly existing in good standing as a business trust under the Delaware Act,
is and will be treated as a "grantor trust" for federal income tax purposes
under existing law, has the business trust power and authority to conduct its
business as presently conducted and as described in the Prospectus and is not
required to be authorized to do business in any other jurisdiction; the Trust
does not have any consolidated or unconsolidated subsidiaries; and the Trust is
and will be treated as a consolidated subsidiary of the Company pursuant to
GAAP.
(xi) Common Securities. The Common Securities have been duly
authorized by the Trust Agreement and, when issued and delivered by the Trust to
the Company in accordance with the terms of the Trust Agreement and against
payment therefor as described in the Prospectus, will be validly issued and
(subject to the terms of the Trust Agreement) fully paid undivided beneficial
interests in the assets of the Trust; the issuance of the Common Securities is
not subject to preemptive or other similar rights; no holder thereof will be
subject to personal liability by reason of being such a holder; and at the
Closing Time, all of the issued and outstanding Common Securities of the Trust
will be directly owned by the Company free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity.
(xii) Authorization of Trust Agreement. The Trust Agreement
has been duly authorized by the Company and duly qualified under the 1939 Act
and, when validly executed and delivered by the Company and the Administrative
Trustees, and assuming the due authorization, execution and delivery of the
Trust Agreement by the Delaware Trustee and the Property Trustee, the Trust
Agreement will constitute a valid and binding agreement of the Company and the
Trustees, enforceable against the Company and the Trustees in accordance with
its terms, (A) except as enforcement thereof may be limited by (i) bankruptcy,
insolvency (including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and (ii) the effect of applicable public policy on
the enforceability of provisions relating to indemnification or contribution and
(B) except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xiii) Guarantee Agreement. The Guarantee Agreement has been
duly authorized by the Company and duly qualified under the 1939 Act and, when
validly executed and delivered by the Company, and assuming due authorization,
execution and delivery of the Guarantee Agreement by the Guarantee Trustee, will
constitute a valid and binding agreement of
6
the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
(xiv) Capital Securities. The Capital Securities have been
duly authorized by the Trust Agreement and, when authenticated in the manner
provided for in the Trust Agreement and issued and delivered pursuant to this
Agreement against payment of the consideration set forth herein, will be validly
issued and (subject to the terms of the Trust Agreement) fully paid and
non-assessable undivided beneficial interests in the assets of the Trust; the
issuance of the Capital Securities is not subject to preemptive or other similar
rights; and holders of Capital Securities will be entitled to the same
limitation of personal liability extended to stockholders of private
corporations for profit incorporated under the General Corporation Law of the
State of Delaware. Pursuant to the Trust Agreement, however, Capital Security
holders may be obligated (A) to provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers or exchanges
of Capital Security certificates and the issuance of replacement Capital
Security certificates and (b) to provide security or indemnity in connection
with requests of or directions to the Property Trustee to exercise its rights
and powers under the Trust Agreement.
(xv) Authorization of Indenture. The Indenture has been duly
authorized by the Company and duly qualified under the 1939 Act and, when duly
executed and delivered by the Company and assuming the due authorization,
execution and delivery of the Indenture by the Debenture Trustee, will
constitute a valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xvi) Authorization of Debentures. The Debentures have been
duly authorized by the Company, and when executed, authenticated, issued and
delivered in the manner provided for in the Indenture and sold and paid for as
provided in this Agreement, the Debentures will constitute valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xvii) Administrative Trustees. Each of the Administrative
Trustees is an officer or employee of the Company and has been duly authorized
by the Company to execute and deliver the Trust Agreement.
7
(xviii) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the Trust.
(xix) Capitalization. The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for subsequent
issuances, if any, pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the Prospectus or pursuant
to the exercise of convertible securities or options referred to in the
Prospectus). The shares of issued and outstanding capital stock of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(xx) Absence of Defaults and Conflicts. Neither the Company,
its subsidiaries nor the Trust is in violation of its charter or by-laws or
other organizational documents or in default in the performance or observance of
any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company, any subsidiary of the
Company or the Trust is a party or by which any of them may be bound, or to
which any of the property or assets of the Company, any subsidiary of the
Company or the Trust is subject, except for such defaults that would not result
in a Material Adverse Effect; and the execution and delivery by the Company and
the Trust of, and the performance by the Company and the Trust of their
obligations under, this Agreement, the execution and delivery by the Company of,
and the performance by the Company of its obligations under, the Trust
Agreement, the Guarantee Agreement, the Indenture and the Debentures, the
issuance and delivery by the Trust of the Common Securities and Capital
Securities and the consummation of the sale of the Capital Securities and the
fulfillment of the terms herein contemplated do not and will not, whether with
or without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, any contract, indenture, mortgage, deed of trust, loan
agreement, guarantee, lease, financing agreement or other similar agreement or
instrument to which the Company or any of its subsidiaries (including the Trust)
is a party or by which the Company or any of its subsidiaries (including the
Trust) is bound or to which any of the property or assets of the Company or any
of its subsidiaries (including the Trust) is subject, nor will such actions
result in any violation of the provisions of the Articles of Incorporation or
By-Laws of the Company or the Certificate of Trust of the Trust, nor will such
actions result in any violation (in each case material to the Company and its
subsidiaries (including the Trust) considered as a whole or as to the Trust
separately) of any statute or any order, rule or regulation of any court or
regulatory authority or other governmental body having jurisdiction over the
Trust or the Company or any of its subsidiaries or any of their properties; and
no consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for, and the absence of which would
materially affect the performance by the Company and the Trust of their
obligations under this Agreement and the issuance and delivery of the Capital
Securities, except such approvals as will be obtained under the 1933 Act, the
1934 Act or the 1939 Act and as may be required by the securities or Blue Sky
laws of the various states in connection with the sale of the Capital
Securities. As used herein, a "Repayment Event" means any event or
8
condition which gives the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to require
the repurchase, redemption or repayment of all or a portion of such indebtedness
by the Company or any subsidiary.
(xxi) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any subsidiary of the Company exists or, to the
knowledge of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its or any
subsidiary's principal suppliers, manufacturers, customers or contractors,
which, in either case, may reasonably be expected to result in a Material
Adverse Effect.
(xxii) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to the
knowledge of the Company or the Trust, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably be
expected to materially and adversely affect the properties or assets of the
Company and its subsidiaries taken as a whole or the consummation of the
transactions contemplated in this Agreement or the performance by the Company or
the Trust of its obligations hereunder; the aggregate of all pending legal or
governmental proceedings to which the Company or any subsidiary of the Company
is a party or of which any of their respective property or assets is the subject
which are not described in the Registration Statement, including ordinary
routine litigation incidental to the business, could not reasonably be expected
to result in a Material Adverse Effect.
(xxiii) Possession of Insurance. The Company and its
subsidiaries carry or are entitled to the benefits of insurance in such amounts
and covering such risks as is generally deemed adequate for its business and
consistent with insurance coverage maintained by companies of similar size and
scope of operations in similar businesses, and all such insurance is in full
force and effect.
(xxiv) Possession of Intellectual Property. The Company and its
subsidiaries own or possess or can acquire on reasonable terms, the patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks and trade names
(collectively, "patent and proprietary rights") presently employed by them in
connection with the business now operated by them as described in the
Prospectus, except where lack thereof would not result in a Material Adverse
Effect, and the Company and its subsidiaries have not received any notice or are
not otherwise aware of any infringement of or conflict with asserted rights of
others with respect to any patent or proprietary rights or of any facts or
circumstances which would render any patent and proprietary rights invalid or
inadequate to protect the interest of the Company and its subsidiaries therein,
and which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, singly or in the aggregate,
would result in any Material Adverse Effect.
(xxv) Possession of Licenses and Permits. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively,
9
"Governmental Licenses") issued by the appropriate federal, state, local or
foreign regulatory agencies or bodies necessary to conduct the business now
operated by them, except for such Governmental Licenses the absence of which
would not cause a Material Adverse Effect; the Company and its subsidiaries are
in compliance with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the aggregate,
have a Material Adverse Effect; all of the Governmental Licenses are valid and
in full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and neither the Company nor any
of its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xxvi) Manipulation. The Company has not taken and will not
take, directly or indirectly, any action designed to or which constituted or
which might reasonably be expected to cause or result in stabilization or
manipulation of the price of the Securities.
(xxvii) Investment Company Act. Neither the Company nor the
Trust is, and upon the issuance and sale of the Capital Securities as herein
contemplated and the application of the net proceeds therefrom as described in
the Prospectus neither will be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxviii) Other Contracts. Other than such agreements, contracts
and other documents as are described in the Prospectus or otherwise filed as
Exhibits to the Company's annual report on Form 10-K, quarterly reports on Form
10-Q or current reports on Form 8-K incorporated by reference in the Prospectus,
there are no agreements, contracts or documents of a character described in Item
601 of Regulation S-K of the Commission to which the Company or any of the Bank
is a party.
(xxix) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary or
required for the performance by the Company or the Trust of its obligations
hereunder, in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this Agreement
or for the due execution, delivery or performance of the Indenture by the
Company, except such as have been already obtained or as may be required under
the 1933 Act or the 1933 Act Regulations or state securities laws and except for
the qualification of the Indenture under the 1939 Act.
(xxx) Title to Property. The Company and its subsidiaries have
good and marketable title to all real property owned by the Company and its
subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (a) are described in the
Prospectus or (b) do not, singly or in the aggregate, materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company or any of its subsidiaries; and all of the
leases and subleases material to the
10
business of the Company and its subsidiaries, considered as one enterprise, and
under which the Company or any of its subsidiaries holds properties described in
the Prospectus, are in full force and effect, and neither the Company nor any
subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any subsidiary under
any of the leases or subleases mentioned above, or affecting or questioning the
rights of the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease.
(b) Officers' Certificates. Any certificate signed by any officer of
the Company or the Trust delivered to Underwriters or to counsel for the
Underwriters shall be deemed a representation and warranty by the Company or the
Trust, respectively, to each Underwriter as to the matters covered thereby on
the date of such certificate and, unless subsequently amended or supplemented,
at each Representation Date subsequent thereto.
SECTION 2. Sale and Delivery to Underwriters; Closing
(a) Capital Securities. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Trust agrees to sell to each Underwriter, severally and not jointly,
and each Underwriter, severally and not jointly, agrees to purchase from the
Company, at the purchase price of $25 per Capital Security, the number of
Initial Capital Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Initial Capital Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, subject, in each case, to such adjustments among the
Underwriters as they in their sole discretion shall make to eliminate any sales
or purchases of fractional securities.
(b) Payment. As compensation to the Underwriters for their
commitments hereunder and in view of the fact that the proceeds of the sale of
the Capital Securities will be used to purchase the Debentures, the Company
hereby agrees to pay at the Closing Time to the Underwriters a commission of
$0.7875 per Capital Security. Payment of the purchase price for, and delivery of
certificates for, the Capital Securities shall be made at the offices of Sidley
▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other place as shall be agreed upon by the Underwriters, the Company and the
Trust, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing occurs
after 4:30 p.m. (Eastern time) on any given day) business day after the date
hereof (unless postponed in accordance with the provisions of Section 10), or
such other time not later than ten business days after such date as shall be
agreed upon by the Underwriters, the Company and the Trust (such time and date
of payment and delivery being herein called "Closing Time").
Payment shall be made to the Trust by wire transfer of immediately
available funds to the order of the Trust, against delivery to the Underwriters
of certificates for the Capital Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for the Capital Securities which it has agreed to purchase. ▇▇▇▇▇▇
Brothers, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Capital
Securities to be purchased by any
11
Underwriter whose funds have not been received by the Closing Time but such
payment shall not relieve such Underwriter from its obligations hereunder.
At Closing Time, the Company will pay, or cause to be paid, the
commission payable at such time under this Section 2 to ▇▇▇▇▇▇ Brothers on
behalf of the Underwriters by wire transfer of immediately available funds.
(c) Denominations; Registration. Certificates for the Capital
Securities shall be in such denominations and registered in such names as the
Representatives may request in writing at least two full business days before
the Closing Time. The certificates for the Capital Securities will be made
available for examination and packaging by the Representatives in The City of
New York not later than 10:00 A.M. (Eastern time) on the business day prior to
the Closing Time.
SECTION 3. Covenants of the Company and the Trust. The Company and the
Trust jointly and severally covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company and the Trust, subject to Section 3(b), will comply with the
requirements of Rule 424 or Rule 434, as applicable, and will notify the
Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become effective,
or any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information and (iv)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the use
of any preliminary prospectus, any prospectus, or of the suspension of the
qualification of the Capital Securities for offering or sale in any jurisdiction
or of the initiation or threatening of any proceedings for any of such purposes.
The Company and the Trust will promptly effect the filings necessary pursuant to
Rule 424(b) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was
received for filing by the Commission and, in the event that it was not, it will
promptly file such prospectus. The Company and the Trust will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. The Company and the Trust will give the
Representatives notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus included
in the Registration Statement at the time it became effective or to the
Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Representatives with copies of any such documents to, and consult
with, the Representatives and their counsel within a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representatives or counsel for the
Representatives shall object.
12
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Representatives without charge, as many signed copies of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and,
upon request, documents incorporated or deemed to be incorporated by reference
therein) as they may reasonably request, and will also deliver to the
Representatives, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Representatives. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except
to the extent permitted by Regulation S-T.
(d) Delivery of Prospectus. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
deliver to each Underwriter, without charge, as many copies of the Prospectus as
such Underwriter reasonably requests, and the Company and the Trust hereby
consent to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
such number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company and the
Trust will comply with the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Capital Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the Underwriters and for the Company or the Trust, to
amend the Registration Statement or amend or supplement the Prospectus in order
that the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company and the Trust will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company and the Trust will each use
its best efforts, in cooperation with the Underwriters, to qualify the Capital
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions (domestic or foreign) as the Underwriters may
designate and to maintain such qualifications in effect for as
13
long as may be required to complete the distribution of the Capital Securities
contemplated hereby; provided, however, that neither the Company nor the Trust
shall be obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Capital Securities have been so
qualified, the Company and the Trust will file such statements and reports as
may be required by the laws of such jurisdiction.
(g) Rule 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) DTC. The Trust and the Company will cooperate with the
Underwriters and use their best efforts to permit the Capital Securities to be
eligible for clearance and settlement through the facilities of The Depository
Trust Company.
(i) Use of Proceeds. The Trust and the Company will use the proceeds
referred to in the Prospectus under "Use of Proceeds" in the manner described
therein.
(j) Restriction on Sale of Securities. During a period of 30 days
from the date of the Prospectus, neither the Company nor the Trust will, without
the prior written consent of the Representatives, directly or indirectly, offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any Capital Securities or
Debentures (or any equity or debt securities substantially similar to the
Capital Securities or Debentures, respectively). The foregoing sentence shall
not apply to the Capital Securities or Debentures to be sold hereunder.
(k) Listing. The Company will use its best efforts to effect the
listing of the Capital Securities on the New York Stock Exchange.
(l) Reporting Requirements. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act or the
1934 Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act and
the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the
performance of its and the Trust's obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Capital Securities, (iii) the preparation, issuance
and delivery of the certificates for the Capital Securities to the Underwriters,
including any stock or other transfer taxes and any stamp or other duties
payable upon the sale, issuance or delivery of the Capital Securities to the
Underwriters, (iv) the fees and disbursements of the Company's and the Trust's
counsel, accountants and other
14
advisors, (v) the qualification of the Capital Securities under securities laws
in accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, if any, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and the
Prospectus and any amendments or supplements thereto, (vii) the printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, if any, (viii) the fees and expenses of any transfer agent or registrar
for the Capital Securities, (ix) the fees and expenses of the Debenture Trustee,
including the fees and disbursements of counsel for the Debenture Trustee in
connection with the Indenture and the Debentures, (x) the reasonable fees and
expenses of the Delaware Trustee, the Property Trustee and the Guarantee
Trustee, including the fees and disbursements of counsel for the Delaware
Trustee, the Property Trustee and the Guarantee Trustee, (xi) any fees payable
in connection with the rating of the Capital Securities and the Debentures,
(xii) the cost and charges associated with the approval of the Capital
Securities by The Depository Trust Company for "book-entry" transfer and (xiii)
the fees and expenses incurred in connection with the listing of the Capital
Securities and, if applicable, the Debentures on the New York Stock Exchange. It
is understood, however, that, except as expressly provided in this Section 4 and
Sections 6, 7 and 9(b) hereof, the Underwriters will pay all of their own costs
and expenses, including the fees of their counsel, transfer taxes on resale of
any of the Securities by them and any advertising expenses connected with any
offers they may make.
(b) Termination of Agreement. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Trust contained in Section
1 hereof or in certificates of any officer of the Company or any Trustee
delivered pursuant to the provisions hereof, to the performance by the Company
and the Trust of their respective covenants and other obligations hereunder, and
to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act or proceedings
therefor initiated or threatened by the Commission, and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel to the Underwriters. A prospectus shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective) or, if the Company has elected to rely upon Rule 434, a Term
Sheet shall have been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Counsel for Company. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
15
L.L.P., counsel for the Company, in form and substance satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such letter
for each of the other Underwriters substantially to the effect set forth in
Exhibit A hereto and to such further effect as counsel to the Underwriters may
reasonably request. Such opinion shall be limited to Maine, New York and federal
law. In giving such opinion, such counsel may rely (i) as to all matters
governed by the laws of jurisdictions other than the laws of the State of Maine
and the federal law of the United States, upon opinions of other counsel, who
shall be counsel satisfactory to counsel to the Underwriters, in which case the
opinion shall state that such counsel believes the Underwriters and such counsel
are entitled to so rely, and (ii) with respect to the laws of the State of New
York pertaining to validity and enforceability of the Debentures and the
Indenture, upon the opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the
Underwriters. Such counsel may also state that, insofar as such opinion involves
factual matters, such counsel has relied, to the extent such counsel deems
proper, upon certificates of officers of the Company and/or the Bank and
certificates of public officials.
(c) Opinion of Special Tax Counsel for the Trust and the Company. At
Closing Time, the Company, the Trust and the Representatives shall have received
an opinion, dated as of Closing Time, of ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.,
special tax counsel to the Trust and the Company, that (i) the Debt Securities
will be classified for United States federal income tax purposes as indebtedness
of the Company, (ii) the Trust will be classified for United States federal
income tax purposes as a grantor trust and not as an association taxable as a
corporation and (iii) although the discussion set forth in the Prospectus under
the heading "United States Federal Income Taxation" does not purport to discuss
all possible United States federal income tax consequences of the purchase,
ownership and disposition of the Capital Securities, such discussion
constitutes, in all material respects, a fair and accurate summary of the United
States federal income tax consequences of the purchase, ownership and
disposition of the Capital Securities under current law. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(d) Opinion of Special Delaware Counsel for the Trust and the
Company. At Closing Time, the Representatives shall have received the favorable
opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A.,
special Delaware counsel to the Trust and the Company, together with signed or
reproduced copies of such letter for each of the Underwriters to the effect set
forth in Exhibit B hereto and to such further effect as counsel to the
Underwriters may reasonably request.
(e) Opinion of Counsel for The Bank of New York. At Closing Time,
the Representatives shall have received an opinion, dated as of Closing Time, of
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to The Bank of New York, as Property
Trustee and Debenture Trustee, and an opinion, dated as of Closing Time, of
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A. regarding The Bank of New York (Delaware), as
Delaware Trustee and Guarantee Trustee, in form and substance satisfactory to
the Underwriters.
(f) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, together
with signed or reproduced copies of such letter for
16
each of the other Underwriters with respect to the validity of the Capital
Securities, the Registration Statement, the Prospectus and other related matters
as the Underwriters may reasonably request. In giving such opinion such counsel
may rely, as to all matters governed by the laws of jurisdictions other than the
law of the State of New York and the federal law of the United States, upon the
opinions of counsel satisfactory to the Underwriters. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(g) Officers' Certificates. At Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, (A) any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business, and the
Representatives shall have received a certificate of the Chairman, the
President, a Vice Chairman or a Vice President of the Company and of the chief
financial or chief accounting officer or the Treasurer of the Company, dated as
of Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) insofar as they relate to the Company, the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time (except for
representations or warranties which by their terms speak as of a different date
or dates), (iii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to Closing Time and (iv) no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or are, to the best of the Company's
knowledge, threatened by the Commission; or (B) any material adverse change in
the condition, financial or otherwise, or in the earnings or business affairs of
the Trust, and the Representatives shall have received a certificate of an
Administrative Trustee of the Trust, dated as of Closing Time, to the effect
that (i) there has been no such material adverse change, (ii) insofar as they
relate to the Trust, the representations and warranties in Section 1(a) hereof
are true and correct with the same force and effect as though expressly made at
and as of Closing Time (except for representations or warranties which by their
terms speak as of a different date or dates), (iii) the Trust has complied in
all material respects with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to Closing Time and (iv) no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or are,
to the best of the Trust's knowledge, threatened by the Commission.
(h) Accountant's Comfort Letter. At the time of the execution of
this Agreement, the Representatives shall have received from KPMG LLP a letter
dated such date, in form and substance satisfactory to the Representatives,
together with signed or reproduced copies of such letter for each of the
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives
shall have received from KPMG LLP a letter, dated as of the Closing Time, to the
effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (h) of this Section 5, except
17
that the specified date referred to shall be a date not more than three business
days prior to the Closing Time.
(j) Maintenance of Rating. At Closing Time and any relevant Date of
Delivery, the Capital Securities shall be rated at least Baa2 by ▇▇▇▇▇'▇
Investors Service, Inc., BB+ by Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc. and BBB+ by Fitch, Inc. and the Company shall have delivered
to the Underwriters a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representatives, confirming that
the Capital Securities have such ratings; and since the date of this Agreement,
there shall not have occurred a downgrading in the rating assigned to the
Capital Securities or any of the Company's debt or preferred securities by any
"nationally recognized statistical rating agency," as that term is defined by
the Commission for purposes of Rule 436(g)(2) under the 1933 Act, and no such
organization shall have publicly announced that it has under surveillance or
review its rating of the Capital Securities or any of the Company's debt or
preferred securities.
(k) Additional Documents. At Closing Time and at each Date of
Delivery, counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the issuance and sale of the Capital Securities as herein
contemplated, or in order to evidence the accuracy of any of the representations
or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company and Trust in connection with the
issuance and sale of the Capital Securities as herein contemplated shall be
satisfactory in form and substance to the Representatives and counsel for the
Underwriters.
(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representatives by notice to the Company at
any time at or prior to Closing Time (or such Date of Delivery, as applicable),
and such termination shall be without liability of any party to any other party
except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall
survive any such termination and remain in full force and effect.
(m) Approval of Listing. At the Closing Time, the Capital Securities
shall have been approved for listing on the New York Stock Exchange, subject
only to official notice of issuance.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company and the
Trust jointly and severally agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement (or
any amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or alleged untrue
statement of a
18
material fact included in any preliminary prospectus of the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, provided that (subject to Section 6(e) below) any such
settlement is effected with the prior written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by ▇▇▇▇▇▇ Brothers),
reasonably incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇ Brothers expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 434 Information, if
applicable, or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Indemnification of Trust by Company. The Company agrees to
indemnify the Trust against all loss, liability, claim, damage and expense
whatsoever due from the Trust under Section 6(a) hereunder.
(c) Indemnification of Trust, Company, Directors and Officers. Each
Underwriter severally agrees to indemnify and hold harmless the Company and the
Trust, each of their respective directors or trustees, each of the Company's
officers and each of the Trustees of the Trust who signed the Registration
Statement, and each person, if any, who controls the Company and the Trust
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and Rule 434 Information, if applicable, or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through ▇▇▇▇▇▇ Brothers expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
19
(d) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of parties indemnified pursuant to Section 6(a)
above, counsel to the indemnified parties shall be selected by the
Representatives, and, in the case of parties indemnified pursuant to Section
6(c) above, counsel to the indemnified parties shall be selected by the Company,
in each case reasonably acceptable to the indemnifying party. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Settlement without Consent if Failure to Reimburse. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided that an indemnifying party shall not be
liable for any such settlement effected without its consent if such indemnifying
party, prior to the date of such settlement (1) reimburses such indemnified
party in accordance with such request for the amount of such fees and expenses
of counsel as the indemnifying party believes in good faith to be reasonable and
(2) provides written notice to the indemnified party that the indemnifying party
disputes in good faith the reasonableness of the unpaid balance of such fees and
expenses.
SECTION 7. Contribution. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein; then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Trust on the one hand and the
20
Underwriters on the other hand from the offering of the Capital Securities
pursuant to this Agreement or (ii) if the allocation provided by clause (i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Trust on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions,
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Trust on the one
hand and the Underwriters on the other hand in connection with the offering of
the Capital Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
Capital Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
The relative fault of the Company and the Trust on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Trust and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 7 were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same
21
rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company and the Trustee of the Trust who signed the
Registration Statement, and each person, if any, who controls the Company or the
Trust within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Capital Securities set forth opposite their
respective names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Trustees of the
Trust or any of its other subsidiaries submitted pursuant hereto, shall remain
operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of the Capital Securities to the
Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Trust, at any time at or prior to
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, (ii) if there has occurred any
material adverse change in the financial markets in the United States, any
outbreak of hostilities or escalation thereof or other calamity or crisis
(including, without limitation, an act of terrorism) or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Capital Securities or to enforce contracts for the
sale of the Capital Securities, (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the New
York Stock Exchange, or if trading generally on the American Stock Exchange or
the New York Stock Exchange or in the Nasdaq National Market has been suspended
or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by
such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States or (iv) if a banking moratorium has been
declared by either Federal, New York or Maine authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
of the Underwriters shall fail at Closing Time to purchase the Capital
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representatives
22
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Capital Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Capital Securities to be purchased on such date, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representatives or the Company shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
23
SECTION 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Representatives shall be directed to ▇▇▇▇▇▇ Brothers at ▇▇▇▇▇▇ Brothers Inc.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Fixed Income
Syndicate (with a copy to the General Counsel); notices to the Trust shall be
directed to it at The Bank of New York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ 21 West, New
York, New York 10286, attention of Corporate Trust Administration and notices to
the Company shall be directed to it at Banknorth Group, Inc., ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇▇▇▇, Executive
Vice President and General Counsel.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and the Trust and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, the Company and the Trust and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Trust and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW. SPECIFIED TIMES OF DAY REFER TO NEW
YORK CITY TIME.
SECTION 14. Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
24
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Trust a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters, the Company and the Trust in
accordance with its terms.
Very truly yours,
BANKNORTH GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
BANKNORTH CAPITAL TRUST II
By: BANKNORTH GROUP, INC., as Sponsor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Chairman, President and
Chief Executive Officer
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
▇▇▇▇▇▇ BROTHERS INC.
By: ▇▇▇▇▇▇ BROTHERS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
25
SCHEDULE A
NUMBER OF CAPITAL
UNDERWRITER SECURITIES
----------- -----------------
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc............................................................ 1,000,000
▇▇▇▇▇▇ Brothers Inc..................................................................... 1,000,000
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc................................................................ 980,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated...................................... 980,000
Prudential Securities Incorporated...................................................... 980,000
UBS Warburg LLC......................................................................... 980,000
Sandler ▇'▇▇▇▇▇, & Partners, L.P........................................................ 320,000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated................................................ 320,000
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.......................................................... 320,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc................................................................. 64,000
CIBC World Markets...................................................................... 64,000
Deutsche Banc Alex. ▇▇▇▇▇ Inc........................................................... 64,000
Fidelity Capital Markets................................................................ 64,000
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Inc............................................................. 64,000
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc............................................................ 64,000
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Incorporated...................................................... 64,000
Advest, Inc............................................................................. 32,000
BB&T Capital Markets, a Division of ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇................................ 32,000
▇▇ ▇▇▇▇ & Associates, Inc............................................................... 32,000
▇▇▇▇▇▇▇▇▇▇ & Co. Inc.................................................................... 32,000
Fox ▇▇▇▇, ▇▇▇▇▇▇ Inc.................................................................... 32,000
Friedman, Billings, ▇▇▇▇▇▇ & Co., Inc................................................... 32,000
Gibraltar Securities Co................................................................. 32,000
Grunthal & Co., LLC..................................................................... 32,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLC............................................................. 32,000
J.J.B. ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Inc........................................................ 32,000
▇.▇. ▇▇▇▇▇▇ Securities Inc.............................................................. 32,000
Maine Securities Corporation............................................................ 32,000
Mesirow Financial, Inc.................................................................. 32,000
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, LLC................................................................... 32,000
▇▇▇▇▇▇/Hunter Incorporated.............................................................. 32,000
RBC ▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc................................................................... 32,000
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ & Co., LLC.............................................................. 32,000
Southwest Securities, Inc............................................................... 32,000
SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Capital Markets, a Division
of SunTrust Capital Markets, Inc..................................................... 32,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Incorporated............................................................. 32,000
▇▇▇▇▇ Fargo Securities, LLC............................................................. 32,000
--------------
Total................................................................. 8,000,000
==============
Sch. A-1
Exhibit A
Form of opinion, dated as of Closing Time, of ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
L.L.P., counsel for the Company and the Trust, substantially to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Maine.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under the Underwriting
Agreement.
(iii) The Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect.
(iv) The Company is duly registered as a bank holding company under
the Bank Holding Company Act of 1956, as amended.
(v) Banknorth, NA (the "Bank") is a duly organized and validly
existing national banking association under the laws of the United States,
continues to hold a valid certificate to do business as such, has full power and
authority to conduct it business as such and as described in the Prospectus; and
has the authority to own, lease and operate its properties and to conduct it
business as described in the Prospectus.
(vi) The Bank is duly authorized to transact and is in good standing
in each jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such authorization necessary,
except to the extent that the failure to be so authorized or be in good standing
would not have a material adverse effect on the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise. To our knowledge,
the Company has no subsidiaries which constitute a "significant subsidiary" as
defined in Rule 1-02 of Regulation S-X except for the Bank.
(vii) The authorized capital stock of the Company is as set forth in
the Prospectus in the column entitled "Actual" under the caption
"Capitalization"; the shares of issued and outstanding capital stock of the
Company are fully paid and non-assessable; and none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company.
(viii) The Underwriting Agreement has been duly authorized by the
Company and has been duly executed and delivered by each of the Company and the
Trust.
(ix) The Indenture has been duly authorized, executed and delivered
by the Company and, assuming the due authorization, execution and delivery of
the Indenture by the Bank of New York, constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except as enforcement thereof may be limited by
A-1
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(x) The Debentures are in the form contemplated by the Indenture,
have been duly authorized, executed and delivered by the Company and, when the
Debentures have been duly authenticated by the Debenture Trustee in accordance
with the provisions of the Indenture, the Debentures will constitute valid and
binding obligations of the Company entitled to the benefits of the Indenture and
enforceable against the Company in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or similar laws affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law).
(xi) The Trust Agreement has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery of the Trust Agreement by The Bank of New York and The Bank of New York
(Delaware), the Trust Agreement constitutes a valid and binding agreement of the
Company and is enforceable against the Company and the Administrative Trustees
in accordance with its terms, except as enforcement thereof may be limited by
(i) bankruptcy, insolvency, moratorium, receivership, reorganization,
liquidation, fraudulent conveyance or transfer and other similar laws relating
to or affecting the rights and remedies of creditors generally, (ii) principles
of equity, including applicable law relating to fiduciary duties (regardless of
whether considered and applied in a proceeding in equity or at law), and (iii)
the effect of applicable public policy on the enforceability of provisions
relating to indemnification or contribution.
(xii) The Guarantee Agreement has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery of the Guarantee Agreement by The Bank of New York, the Guarantee
Agreement constitutes a valid and binding agreement of the Company enforceable
against the Company in accordance with its terms, except as enforcement thereof
may be limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or similar
laws affecting enforcement of creditors' rights generally and except as
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(xiii) The Indenture, the Guarantee Agreement and the Trust Agreement
have each been duly qualified under the 1939 Act.
(xiv) The Trust Agreement, the Indenture, the Guarantee Agreement, the
Capital Securities and the Debentures conform as to legal matters in all
material respects to the descriptions thereof contained in the Prospectus.
A-2
(xv) The holders of outstanding shares of capital stock of the
Company are not entitled to any preemptive rights under the Articles of
Incorporation or By-Laws of the Company or the laws of the State of Maine to
subscribe for the Capital Securities or the Debentures.
(xvi) The documents incorporated by reference in the Prospectus (other
than the financial statements, notes to financial statements, financial tables,
other financial or statistical data and supporting schedules included therein or
omitted therefrom, as to which such counsel need express no opinion), when they
were filed with the Commission complied as to form in all material respects with
the requirements of the 1934 Act and the rules and regulations of the Commission
thereunder.
(xvii) The statements made (1) in the prospectus supplement under the
caption "Certain Terms of the Capital Securities," "Certain Terms of the Junior
Subordinated Debentures," and "Relationship among the Capital Securities, the
Junior Subordinated Debentures and the Guarantee" and in the base prospectus
under the captions "Description of the Capital Securities," "Description of the
Guarantee," "Description of the Junior Subordinated Debt Securities" and
"Relationship among the Capital Securities, the corresponding Junior
Subordinated Debt Securities and the Guarantees," (2) in the Registration
Statement under Item 15 and (3) in the Company's Annual Report on Form 10-K for
the year ended December 31, 2000 under the caption "Item 1. Business -
Supervision and Regulation," insofar as such statements purport to summarize
certain provisions of the Capital Securities, the Common Securities, the
Debentures, the Indenture, the Trust Agreement, the Guarantee Agreement, the
Articles of Incorporation and By-Laws of the Company or to the extent that they
constitute matters of law or legal conclusions, have been reviewed by such
counsel and are correct in all material respects.
(xviii) The Bank is an insured depositary institution under the
provisions of the Federal Deposit Insurance Act, as amended.
(xix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the 1933 Act and the
1933 Act Regulations, which have been obtained, or as may be required under the
securities or blue sky laws of the various states, as to which we need express
no opinion, and except for the qualification of the Trust Agreement, the
Indenture and the Guarantee Agreement under the 1939 Act) is necessary or
required in connection with the due authorization, execution and delivery of the
Underwriting Agreement or the due execution, delivery or performance of the
Indenture by the Company or for the offering, issuance, sale or delivery of the
Securities.
(xx) The execution, delivery and performance of the Underwriting
Agreement, the Indenture and the Securities and the consummation of the
transactions contemplated in the Underwriting Agreement and in the Registration
Statement (including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectus under
the caption "Use of Proceeds") and compliance by the Company and the Trust with
their obligations under the Underwriting Agreement, the Indenture, the Trust
Agreement, the Guarantee Agreement, the Debentures and the Capital Securities do
not and will not, whether with or without the giving of notice or lapse of time
or both, conflict with or constitute a breach of, or default or Repayment Event
(as defined in Section 1(a)(xx) of the Underwriting
A-3
Agreement) under or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company, any subsidiary of the
Company or the Trust pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or any other agreement or
instrument, known to us, to which the Company, any subsidiary of the Company or
the Trust is a party or by which it or any of them may be bound, or to which any
of the property or assets of the Company, any subsidiary of the Company or the
Trust is subject (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a Material Adverse Effect), nor will
such action result in any violation of the provisions of the Articles of
Incorporation or By-laws of the Company or the Certificate of Trust of the
Trust, or any applicable law, statute, rule, regulation, judgment, order, writ
or decree, known to us, of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over the Company, any subsidiary of the
Company, the Trust or any of their respective properties, assets or operations.
(xxi) Neither the Company nor the Trust is, and upon the issuance and
sale of the Capital Securities as herein contemplated and the application of the
net proceeds therefrom as described in the Prospectus neither will be, required
to be registered under the Investment Company Act of 1940, as amended.
(xxii) There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or
foreign, now pending or, to the knowledge of such counsel, threatened, against
or affecting the Company or any of its subsidiaries, of a character required to
be disclosed in the Registration Statement which is not adequately disclosed in
the Prospectus or which could reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in the Underwriting Agreement or the performance by
the Company of its obligations thereunder.
(xxiii) There is no franchise, contract or other document, known to such
counsel, of a character required to be described in the Registration Statement
or Prospectus, or to be filed as an exhibit, which is not described or filed as
required.
(xxiv) The Registration Statement was declared effective under the 1933
Act on February 12, 2002; any required filing of the Prospectus pursuant to Rule
424(b) under the 1933 Act has been made in the manner and within the time period
required by Rule 424(b); no stop order suspending the effectiveness of the
Registration Statement has been issued by the Commission and, no proceeding for
that purpose is pending or, to such counsel's knowledge, threatened by the
Commission.
(xxv) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(xxvi) The Registration Statement, as of its effective date, and the
Prospectus, as of its date, complied as to form in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations, except that in each
case such counsel need not express an opinion as to the financial statements,
notes to financial statements, financial tables, other financial or
A-4
statistical data and supporting schedules included therein or excluded therefrom
or the exhibits to the Registration Statement.
Such counsel shall also have furnished to the Representatives a written
statement addressed to the Underwriters and dated as of the Closing Time, to the
effect that (x) such counsel has acted as counsel to the Company in connection
with the preparation of the Registration Statement, the Prospectus and the
documents incorporated by reference therein, and in the course of preparation of
those documents such counsel has participated in conferences with
representatives of the Company and with representatives of KPMG LLP and (y)
based upon such counsel's examination of the Registration Statement, the
Prospectus and the documents incorporated by reference therein, such counsel's
investigations made in connection with the preparation of the Registration
Statement, the Prospectus and the documents incorporated by reference therein
and such counsel's participation in the conferences referred to above, nothing
has come to the attention of such counsel that would lead it to believe that the
Registration Statement or any amendment thereto, including the Rule 430A
Information and Rule 434 Information (if applicable), (except for financial
statements, notes to financial statements, financial tables, other financial or
statistical data and supporting schedules included or incorporated by reference
therein or omitted therefrom and the Forms T-1, as to which such counsel need
make no statement), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (except for financial statements, notes to
financial statements, financial tables, other financial or statistical data and
supporting schedules included or incorporated by reference therein or omitted
therefrom and the Form T-1, as to which such counsel need make no statement), at
the time the Prospectus was issued, at the time any such amended or supplemented
prospectus was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
A-5
Exhibit B
Form of opinion, dated as of Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A.,
special Delaware counsel for the Trust and the Company, substantially to the
effect that:
(i) The Trust has been duly formed and is validly existing in good
standing as a business trust under the Delaware Act. All filings required under
the laws of the State of Delaware with respect to the formation and valid
existence of the Trust as a business trust have been made. Under the Trust
Agreement and the Delaware Act, the Trust has the requisite business trust power
and authority to conduct its business as described in the Prospectus.
(ii) The Trust Agreement constitutes a legal, valid and binding
obligation of the Company and each of the Trustees, and is enforceable against
the Company and each of the Trustees in accordance with its terms, except to the
extent that enforcement of the Trust Agreement may be limited by (i) bankruptcy,
insolvency, moratorium, receivership, reorganization, liquidation, fraudulent
conveyance or transfer and other similar laws relating to or affecting the
rights and remedies of creditors generally, (ii) principles of equity, including
applicable law relating to fiduciary duties (regardless of whether considered
and applied in a proceeding in equity or at law), and (iii) the effect of
applicable public policy on the enforceability of provisions relating to
indemnification or contribution.
(iii) The Capital Securities have been duly authorized for issuance in
accordance with the Trust Agreement and, when issued, executed, authenticated,
delivered and paid for in accordance with the Trust Agreement and the
Underwriting Agreement, will be validly issued, fully paid and, subject to the
qualifications set forth in paragraph (iv) below, non-assessable undivided
beneficial interests in the assets of the Trust, will not be subject to
preemptive or other similar rights under the Trust Agreement or the Delaware Act
and will entitle the holders of the Capital Securities to the benefits of the
Trust Agreement except to the extent that enforcement of the Trust Agreement may
be limited by (i) bankruptcy, insolvency, moratorium, receivership,
reorganization, liquidation, fraudulent conveyance or transfer and other similar
laws relating to or affecting the rights and remedies of creditors generally,
(ii) principles of equity, including applicable law relating to fiduciary duties
(regardless of whether considered and applied in a proceeding in equity or at
law), and (iii) the effect of applicable public policy on the enforceability of
provisions relating to indemnification or contribution.
(iv) Under the Trust Agreement and the Delaware Act, each Capital
Security Holder of the Trust, in such capacity, will be entitled to the same
limitation on personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware; provided, however, we express no opinion with respect to the
liability of any Capital Security Holder who is, was or may become a named
trustee of the Trust. We note that the Capital Security holders may be
obligated, pursuant to the Trust Agreement, (A) to provide indemnity and/or
security in connection with and pay taxes or government charges arising from
transfers or exchanges of Capital Security certificates and the issuance of
replacement Capital Security certificates, and (B) to provide security or
indemnity in connection with requests of or directions to the Property Trustee
to exercise its rights and powers under the Trust Agreement.
B-1
(v) The Common Securities have been duly authorized for issuance in
accordance with the Trust Agreement and, when issued, executed, delivered and
paid for in accordance with the Trust Agreement will be validly issued and fully
paid and subject to the qualifications set forth in paragraph (vi) below,
non-assessable undivided beneficial interests in the assets of the Trust, will
not be subject to preemptive or other similar rights under the Trust Agreement
or the Delaware Act and will entitle the holders of the Common Securities to the
benefits of the Trust Agreement except to the extent that enforcement of the
Trust Agreement may be limited by (i) bankruptcy, insolvency, moratorium,
receivership, reorganization, liquidation, fraudulent conveyance or transfer and
other similar laws relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable law relating to
fiduciary duties (regardless of whether considered and applied in a proceeding
in equity or at law), and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or contribution.
(vi) Under the Trust Agreement and the Delaware Act, each Common
Security Holder of the Trust, in such capacity, will be entitled to the same
limitation on personal liability extended to stockholders of private
corporations for profit organized under the General Corporation Law of the State
of Delaware; provided, however, we express no opinion with respect to the
liability of any Common Security Holder who is, was or may become a named
trustee of the Trust. Notwithstanding the foregoing, we note that, pursuant to
the Trust Agreement, Common Security Holders may be obligated to make payments
or provide indemnity or security under the circumstances set forth therein.
(vii) Under the Trust Agreement and the Delaware Act, the Trust has
the requisite trust power and authority to execute and deliver the Underwriting
Agreement and to perform its obligations under the Underwriting Agreement and to
consummate the transactions contemplated thereby. Under the Trust Agreement and
the Delaware Act, the execution and delivery by the Trust of the Underwriting
Agreement, and the performance of its obligations thereunder, have been duly
authorized by all requisite trust action on the part of the Trust.
(viii) We have reviewed the statements made in the base prospectus
under the captions "The Trusts" and "Description of the Capital Securities" and
in the prospectus supplement under the captions "Banknorth Capital Trust II" and
'Certain Terms of the Capital Securities" and, insofar as they contain
statements of Delaware law, such statements are fairly presented.
B-2