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EXHIBIT 4.3
TRUST AGREEMENT
This TRUST AGREEMENT, dated as of October 4, 1999 (this "Trust
Agreement") among Northeast Bancorp, a Maine corporation, as "Depositor," and
Bankers Trust Company, a New York banking corporation, and Bankers Trust
(Delaware), a Delaware banking corporation, not in their individual capacities
but solely as trustees (the "Trustees"). The Depositor and the Trustees hereby
agree as follows:
1. The trust created hereby shall be known as "NBN Capital Trust" (the
"Trust"), in which name the Trustees, or the Depositor to the extent provided
herein, may conduct the business of the Trust, make and execute contracts, and
sue and be sued.
2. The Depositor hereby assigns, transfers conveys and sets over to
the Trustees the sum of $10. The Trustees hereby acknowledge receipt of such
amount in trust from the Depositor, which amount shall constitute the initial
trust estate. The Trustees hereby declare that they will hold the trust estate
in trust for the Depositor. It is the intention of the parties hereto that the
Trust created hereby constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 Del. C. ss. 3801, et seq. (the "Business Trust Act"),
and that this document constitutes the governing instrument of the Trust. The
Trustees are hereby authorized and directed to execute and file a certificate
of trust with the Delaware Secretary of State in accordance with the provisions
of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended and
restated Trust Agreement, satisfactory to each such party and substantially in
the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and the Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery of any licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor, as the depositor of the Trust, is hereby authorized,
in its discretion, (i) to file with the Securities and Exchange Commission (the
"Commission") and execute, in each case on behalf of the Trust, (a) the
Registration Statement on such form as the Depositor determines (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement (including the prospectus,
prospectus supplements and the exhibits contained therein), relating to the
registration under the Securities Act of 1933, as amended, of the Preferred
Securities of the Trust and possibly certain other securities and (b) a
Registration Statement on Form 8-A or other appropriate form (the "1934 Act
Registration Statement") (including all pre-effective and post-effective
amendments thereto) relating to the registration of the Preferred Securities of
the Trust under the Securities Exchange Act of 1934, as amended; (ii) to file
with the American Stock Exchange or any other national stock exchange or The
Nasdaq National Market (each, an "Exchange") and execute on behalf of the Trust
one or more listing applications and all other applications, statements,
certificates, agreements and other instruments as shall be necessary or
desirable to cause the
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Preferred Securities to be listed on any of the Exchanges; (iii) to file and
execute on behalf of the Trust such applications, reports, surety bonds,
irrevocable consents, appointments of attorney for service of process and other
papers and documents as shall be necessary or desirable to register the
Preferred Securities under the securities or blue sky laws of such
jurisdictions as the Depositor, on behalf of the Trust, may deem necessary or
desirable; (iv) to execute and deliver letters or documents to, or instruments
for filing with, a depository relating to the Preferred Securities; and (v) to
execute on behalf of the Trust that certain Underwriting Agreement relating to
the Preferred Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as an exhibit to
the 1933 Act Registration Statement. In the event that any filing referred to
in clauses (i), (ii) and (iii) above is required by the rules and regulations
of the Commission, an Exchange or state securities or blue sky laws, to be
executed on behalf of the Trust by any of the Trustees, each of the Trustees,
in its capacity as a trustee of the Trust, is hereby authorized and directed to
join in any such filing and to execute on behalf of the Trust any and all of
the foregoing. In connection with all of the foregoing, the Depositor hereby
constitutes and appoints James D. Delamater and John W. Trinward as its true
and lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for the Depositor or in the Depositor's name, place and stead,
in any and all capacities, to sign any and all amendments (including
post-effective amendments) to the 1933 Act Registration Statement and the 1934
Act Registration Statement and to file the same, with all exhibits thereto, and
other documents in connection therewith, with the Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as the Depositor might or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, or their substitute or substitutes, shall do or
cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more counterparts.
6. The number of Trustees initially shall be two (2) and thereafter
the number of Trustees shall be such number as shall be fixed from time to time
by a written instrument signed by the Depositor which may increase or decrease
the number of Trustees; provided, however, that to the extent required by the
Business Trust Act, one Trustee shall either be a natural person who is a
resident of the State of Delaware or, if not a natural person, an entity which
has its principal place of business in the State of Delaware and otherwise
meets the requirements of applicable Delaware law. Subject to the foregoing,
the Depositor is entitled to appoint or remove without cause any Trustee at any
time. The Trustees may resign upon thirty (30) days' prior notice to the
Depositor.
7. The Depositor hereby agrees to (i) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and
other experts) and (ii) indemnify, defend and hold harmless the Trustees and
any of the officers, directors, employees and agents of the Trustees (the
"Indemnified Persons") from and against all losses, damages, liabilities,
claims, actions, suits, costs, expenses, disbursements (including the
reasonable fees and expenses of counsel), taxes and penalties of any kind and
nature whatsoever (collectively, "Expenses"), to the extent that such Expenses
arise out of or are imposed upon or
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asserted at any time against such Indemnified Persons with respect to the
performance of this Trust Agreement, the creation, operation or termination of
the Trust or the transactions contemplated hereby; provided, however, that the
Depositor shall not be required to indemnify any Indemnified Person for any
Expenses which are a result of the willful misconduct, bad faith or gross
negligence of such Indemnified Person.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
NORTHEAST BANCORP, as Depositor
By: /s/ James D. Delamater
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Name: James D. Delamater
Title: President
BANKERS TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: /s/ Susan Johnson
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Name: Susan Johnson
Title: Assistant Vice President
BANKERS TRUST (DELAWARE),
not in its individual capacity but
solely as Trustee
By: /s/ M. Lisa Wilkens
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Name: M. Lisa Wilkens
Title: Assistant Vice President
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CERTIFICATE OF TRUST
OF
NBN CAPITAL TRUST
THIS Certificate of Trust of NBN Capital Trust (the "Trust"), dated as
of October 4, 1999, is being duly executed and filed by the undersigned, as
trustees, to form a business trust under the Delaware Business Trust Act (12
Del. C. ss. 3801, et seq.).
1. Name. The name of the business trust formed hereby is NBN Capital
Trust.
2. Delaware Trustee. The name and business address of the trustee of
the Trust with a principal place of business in the State of Delaware are
Bankers Trust (Delaware), E. A. Delle Donne Corporate Center, Montgomery
Building, 1011 Centre Road, Suite 200, Wilmington, Delaware, 19805-1266,
Attention: Lisa Wilkins.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned, being the trustees of the Trust,
have executed this Certificate of Trust as of the date first-above written.
BANKERS TRUST (DELAWARE),
not in its individual capacity but solely as
trustee of the Trust
By: /s/ M. Lisa Wilkens
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Name: M. Lisa Wilkens
Title: Assistant Vice President
BANKERS TRUST COMPANY,
not in its individual capacity but solely as
trustee of the Trust
By: /s/ Susan Johnson
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Name: Susan Johnson
Title: Assistant Vice President