Exhibit 5.1
Law Offices
ELIAS, MATZ, TIERNAN & HERRICK L.L.P.
12th Floor
734 15th Street, N.W.
Washington, D.C. 20005
Telephone (202) 347-0300
February 1, 2002
Board of Directors
Banknorth Group, Inc.
Two Portland Square
P.O. Box 9540
Portland, Maine 04112-9540
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to Banknorth Group, Inc., a Maine corporation
(the "Company") and Sponsor of Banknorth Capital Trust II, Banknorth Capital
Trust III and Banknorth Capital Trust IV, each a Delaware business trust (each a
"Trust" and collectively, the "Trusts"), in connection with a Registration
Statement on Form S-3 (the "Registration Statement") relating to:
(A) the proposed sale by the Company from time to time, in one or more
series, of (i) its unsecured debt securities, which may be either senior debt
securities (the "Senior Debt Securities") or unsecured subordinated debt
securities (the "Subordinated Debt Securities" and, together with the Senior
Debt Securities, the "Debt Securities"); (ii) shares of its preferred stock (the
"Preferred Stock"); (iii) depositary shares (the "Depositary Shares")
representing fractional shares of Preferred Stock and evidenced by depositary
receipts; (iv) shares of its common stock, par value $0.01 per share (the
"Common Stock"); (v) warrants to purchase Debt Securities, Preferred Stock or
Common Stock (the "Warrants"); and (vi) the guarantee by the Company of the
Capital Securities (as hereinafter defined) of each of the Trusts (the
"Guarantees");
(B) the proposed sale by the Company from time to time, in one or more
series, to the Trusts, of the Company's junior subordinated deferrable interest
debentures (the "Junior Subordinated Debentures"); and
(C) the proposed sale by each of the Trusts of its capital securities
(the "Capital Securities") from time to time, in one or more series.
The Debt Securities, Preferred Stock, Depositary Shares, Common Stock,
Warrants, Guarantees, Junior Subordinated Debentures and Capital Securities are
hereinafter collectively referred to as the "Securities."
Board of Directors
Banknorth Group, Inc.
February 1, 2002
Page 2
We have examined such documents, including the resolutions of the Board
of Directors of the Company adopted on January 22, 2002 (the "Resolutions"), and
have reviewed such questions of law as we have considered necessary and
appropriate for the purposes of our opinion set forth below. In rendering our
opinions set forth below, we have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures and the
conformity to authentic originals of all documents submitted to us as copies. We
have also assumed the legal capacity for all purposes relevant hereto of all
natural persons and, with respect to all parties to agreements or instruments
relevant hereto other than the Company and the Trusts, that such parties had the
requisite power and authority (corporate or otherwise) to execute, deliver and
perform such agreements or instruments, that such agreements or instruments have
been duly authorized by all requisite action (corporate or otherwise), executed
and delivered by such parties and that such agreements or instruments are the
valid, binding and enforceable obligations of such parties. As to questions of
fact material to our opinion, we have relied upon certificates of officers of
the Company and the Trusts and of public officials. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to them
in the Indentures, the Trust Agreements and the Guarantees, each in the form
incorporated by reference as exhibits to the Registration Statement.
Based on the foregoing, we are of the following opinion as of the date
hereof:
1. When the specific terms of a series of Debt Securities have been
specified in a Supplemental Indenture or an Officer's Certificate, which has
been executed and delivered to the Trustee by an Authorized Officer (as defined
in the Resolutions), such series of Debt Securities will have been duly
authorized by all requisite corporate action and, when executed and
authenticated as specified in the Indentures and delivered against payment
therefor pursuant to the terms described in the Registration Statement and as
specified by an Authorized Officer, or when issued upon valid exercise of
Warrants that have been duly authorized by all requisite corporate action and
validly issued, will constitute valid and binding obligations of the Company,
enforceable in accordance with the terms of such series.
2. When the specified terms of a series of Warrants have been specified
in a Warrant Agreement executed and delivered by an Authorized Officer (as
defined in the Resolutions), the Warrants established in such Warrant Agreement
will have been duly authorized by all requisite corporate action and, when
executed and authenticated as specified in such Warrant Agreement and delivered
against payment therefor pursuant to the terms described in the Registration
Statement and as specified by an Authorized Officer, will constitute valid and
binding obligations of the Company, enforceable in accordance with the terms of
such Warrants.
3. When the specific terms of a series of Preferred Stock have been
specified in a Statement of Resolutions duly adopted by the Board of Directors
or a duly authorized committee thereof, and such Statement of Resolutions has
been duly filed with the Secretary of State of the State of Maine, such series
of Preferred Stock will have been duly authorized by all requisite
Board of Directors
Banknorth Group, Inc.
February 1, 2002
Page 3
corporate action and, upon issuance, delivery and payment therefor as described
in the Registration Statement, or when issued upon valid exercise of Warrants
that have been duly authorized by all requisite corporate action and validly
issued, shares of such series of Preferred Stock will be validly issued, fully
paid and nonassessable.
4. Upon issuance, delivery and payment therefor as described in the
Registration Statement, or when issued upon valid exercise of Warrants that have
been duly authorized by all requisite corporate action and validly issued,
shares of Common Stock will be validly issued, fully paid and nonassessable.
5. When the specific terms of a series of Depositary Shares have been
specified in a Deposit Agreement executed and delivered by an Authorized Officer
(as defined in the Resolutions), the Depositary Shares established in such
Deposit Agreement will have been duly authorized by all requisite corporate
action and, upon issuance, delivery and payment therefor as described in the
Registration Statement, will be validly issued, fully paid and nonassessable.
6. When the specific terms of a series of Junior Subordinated
Debentures have been specified in a Supplemental Indenture or an Officer's
Certificate, which has been executed and delivered to the Trustee by an
Authorized Officer (as defined in the Resolutions), such series of Junior
Subordinated Debentures will have been duly authorized by all requisite
corporate action, and, when executed and authenticated as specified in the
Junior Subordinated Indenture and delivered against payment therefor pursuant to
the terms described in the Registration Statement and as specified by an
Authorized Officer, will constitute valid and binding obligations of the
Company, enforceable in accordance with the terms of such series.
7. When the Guarantees have been duly authorized by all requisite
corporate action and when executed and delivered as specified in the Guarantee
Agreements, the Guarantees will constitute a valid and binding obligation of the
Company, enforceable in accordance with their terms.
The opinions set forth above are subject to the following
qualifications and exceptions:
(a) Our opinions in paragraphs 1, 2, 5, 6 and 7 above are subject to
the effect of any applicable bankruptcy, insolvency, reorganization, moratorium
or other similar law of general application affecting creditors' rights.
(b) Our opinions in paragraphs 1, 2, 5, 6 and 7 above are subject to
the effect of general principles of equity, including (without limitation)
concepts of materiality, reasonableness, good faith and fair dealing, and other
similar doctrines affecting the enforceability of agreements generally
(regardless of whether considered in a proceeding in equity or at law).
(c) Our opinion in paragraph 7 above, insofar as it relates to
indemnification provisions, is subject to the effect of federal and state
securities laws and public policy relating thereto.
Board of Directors
Banknorth Group, Inc.
February 1, 2002
Page 4
(d) In rendering the opinions set forth above, we have assumed that, at
the time of the authentication and delivery of a series of Securities, the
Resolutions referred to above will not have been modified or rescinded, there
will not have occurred any change in the law affecting the authorization,
execution, delivery, validity or enforceability of the Securities, the
Registration Statement will have been declared effective by the Commission and
will continue to be effective, none of the particular terms of a series of
Securities will violate any applicable law and neither the issuance and sale
thereof nor the compliance by the Company and the Trusts with the terms thereof
will result in a violation of any agreement or instrument then binding upon the
Company and the Trusts or any order of any court or governmental body having
jurisdiction over the Company and the Trusts.
(e) As of the date of this opinion, a judgment for money in an action
based on a debt security denominated in a foreign currency or currency unit in a
federal or state court in the United States ordinarily would be enforced in the
United States only in United States dollars. The date used to determine the rate
of conversion into United States dollars of the foreign currency or currency
unit in which a particular debt security is denominated will depend upon various
factors, including which court renders the judgment. Under Section 27 of the New
York Judiciary Law, a state court in the State of New York rendering a judgment
on a debt security would be required to render such judgment in the foreign
currency or currency unit in which such debt security is denominated, and such
judgment would be converted into United States dollars at the exchange rate
prevailing on the date of entry of the judgment.
Our opinions expressed above are limited to the laws of the State of
Maine, the State of New York and the federal laws of the United States of
America.
We hereby consent to your filing this opinion as an exhibit to the
Registration Statement and to the reference to our firm under the caption
"Validity of Securities" contained in the Prospectuses included therein.
Very truly yours,
ELIAS, MATZ, TIERNAN & HERRICK L.L.P
By: /s/ Gerard L. Hawkins
Gerard L. Hawkins, a Partner