EXHIBIT 4.2
(FORM OF FACE OF SECURITY)
JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE CERTIFICATE
(FACE OF SECURITY)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY ("DTC") OR A NOMINEE OF DTC. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY DTC TO A NOMINEE
OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF DTC) MAY BE
REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC, TO THE CORPORATION OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC, AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY ENTITY IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE SECURITIES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN
BLOCKS HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. ANY SUCH
TRANSFER OF SECURITIES IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS
THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. ANY
SUCH TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER OF SUCH SECURITIES FOR ANY
PURPOSE, INCLUDING BUT NOT LIMITED TO THE RECEIPT OF PRINCIPAL, PREMIUM (IF ANY)
OR INTEREST OF SUCH SECURITIES, AND SUCH TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH SECURITIES.
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No. R-001
BANKNORTH GROUP, INC.
10.52% JUNIOR SUBORDINATED DEFERRABLE
INTEREST DEBENTURE DUE MAY 1, 2027, SERIES B
Banknorth Group, Inc., a Delaware corporation (the "Corporation," which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to The First National Bank of
Chicago, as Property Trustee of First of America Capital Trust I, or registered
assigns, the principal sum of ______________________________________________
_______ dollars ($____________) on May 1, 2027 (the "Maturity Date"), unless
previously prepaid, and to pay interest on the outstanding principal amount
hereof from [May 1, 1997] [November 1, 1997], or from the most recent interest
payment date (each such date, an "Interest Payment Date") to which interest has
been paid or duly provided for, semi-annually (subject to deferral as set forth
herein) in arrears on May 1 and November 1 of each year, commencing [November 1,
1997] [May 1, 1998] (each, an "Interest Payment Date"), at the rate of 10.52%
per annum until the principal hereof shall have become due and payable, and on
any overdue principal and premium, if any, and (without duplication and to the
extent that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at the same rate per annum compounded
semi-annually ("Compounded Interest"). The amount of interest payable on any
Interest Payment Date shall be computed on the basis of a 360-day year of twelve
30-day months and, for any period less than a full calendar month, the number of
days elapsed in such month. In the event that any date on which the principal of
(or premium, if any) or interest on this Security is payable is not a Business
Day, then the payment payable on such date will be made on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay), with the same force and effect as if made on such date,
except that, in the case of any repayment in accordance with the provisions on
the reverse hereof, if such next succeeding Business Day falls in the next
succeeding calendar year, then such payment shall be made on the immediately
preceding Business Day. Pursuant to the Indenture, in certain circumstances
the Corporation will be required to pay Additional Sums (as defined in the
Indenture) with respect to this Security.
The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities, as defined in said Indenture) is registered at the close of business
on the regular record date for such interest installment, which shall be the
fifteenth day of the month next preceding that in which the relevant Interest
Payment Date falls. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the holders on such regular
record date and may be paid to the Person in whose name this Security (or one or
more Predecessor Securities) is registered at the close of business on a special
record date to be fixed by the Debenture Trustee for the payment of such
defaulted interest, notice whereof shall be given to the holders of Securities
not less than 10 days prior to such special record date, or may be
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paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The principal of (and premium, if any) and interest (including
Compounded Interest and Additional Sums, if any) on this Security shall be
payable at the office or agency of the Debenture Trustee in The City of New
York, maintained for that purpose in any coin or currency of the United States
of America that at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER, that payment of interest may be made at the
option of the Corporation by (i) check mailed to the holder at such address as
shall appear in the Security Register or (ii) transfer to an account maintained
by the Person entitled thereto, provided that proper written transfer
instructions have been received by the relevant record date. Notwithstanding the
foregoing, so long as the Holder of this Security is the Property Trustee of
Banknorth Capital Trust I, the payment of the principal of (and premium, if any)
and interest (including Compounded Interest and Additional Sums, if any) on this
Security will be made in immediately available funds at such place and to such
account as may be designated by such Property Trustee.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinate and junior in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Debenture Trustee on his or her
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination so provided and (c) appoints the Debenture Trustee
his or her attorney-in-fact for any and all such purposes. Each holder hereof,
by his or her acceptance hereof, hereby waives all notice of the acceptance of
the subordination provisions contained herein and in the Indenture by each
holder of Senior Indebtedness, whether now outstanding or hereafter incurred,
and waives reliance by each such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture
or be valid or become obligatory for any purpose until the Certificate of
Authentication hereon shall have been signed by or on behalf of the Debenture
Trustee.
The provisions of this Security are continued on the reverse side
hereof and such provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Corporation has caused this Security to be duly
executed and sealed this ____ day of September, 1997.
BANKNORTH GROUP, INC.
By: ____________________________
Name:
Title:
Attest:
By: ______________________________
Name:
Title:
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CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as Debenture Trustee
By:__________________________________
Authorized Signatory
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(FORM OF REVERSE OF SECURITY)
This Security is one of the Securities of the
Corporation (herein sometimes referred to as the "Securities"), specified in the
Indenture, all issued or to be issued under and pursuant to an Indenture, dated
as of May 1, 1997 (the "Indenture"), duly executed and delivered between the
Corporation and The First National Bank of Chicago, as Debenture Trustee (the
"Debenture Trustee"), to which Indenture reference is hereby made for a
description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Debenture Trustee, the Corporation and the holders
of the Securities.
Upon the occurrence and continuation of a Special
Event prior to May 1, 2007 (the "Initial Optional Prepayment Date"), the
Corporation shall have the right at any time within 90 days following the
occurrence of such Special Event, to prepay this Security in whole (but not in
part) at the Special Event Prepayment Price. "Special Event Prepayment Price"
shall mean, with respect to any prepayment of this Security following a Special
Event, an amount in cash equal to the Make Whole Amount. The "Make Whole Amount"
shall mean an amount equal to the greater of (i) 100% of the principal amount to
be prepaid or (ii) the sum, as determined by a Quotation Agent, of the present
values of remaining scheduled payments of principal and interest hereon,
discounted to the prepayment date on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Adjusted Treasury Rate, plus, in
each case of clauses (i) and (ii), any accrued and unpaid interest (including
Compounded Interest and Additional Sums, if any) thereon, if any, to the date
of such prepayment.
In addition, the Corporation shall have the right
to prepay this Security, in whole or (subject to Section 14.02(b) of the
Indenture) in part, at any time on or after the Initial Optional Prepayment Date
(an "Optional Payment"), at the prepayment prices set forth below (expressed as
a percentage of the outstanding principal amount to be redeemed) plus, in each
case, accrued and unpaid interest thereon (including Additional Sums and
Compounded Interest, if any) to the applicable date of prepayment (the
"Optional Prepayment Price"), if prepaid during the 12-month period beginning
May 1 of the years indicated below.
Year Percentage
2007 105.260%
2008 104.734%
2009 104.208%
2010 103.682%
2011 103.156%
2012 102.630%
2013 102.104%
2014 101.578%
2015 101.052%
2016 100.526%
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2017 and thereafter 100.000%
The Optional Prepayment Price or the Special Event
Prepayment Price, as the case requires, shall be paid prior to 12:00 noon, New
York time, on the date of such prepayment or at such earlier time as the
Corporation determines, provided, that the Corporation shall deposit with the
Debenture Trustee an amount sufficient to pay the applicable Prepayment Price by
10:00 a.m., New York time, on the date such Prepayment Price is to be paid. Any
prepayment pursuant to this paragraph will be made upon not less than 30 days
nor more than 60 days' prior written notice.
If the Securities are only partially prepaid by the
Corporation pursuant to an Optional Prepayment, the particular Securities to be
prepaid shall be selected on a pro rata basis from the outstanding Securities
not previously called for prepayment; provided, however, that with respect to
Securityholders that would be required to hold Securities with an aggregate
principal amount of less than $100,000 but more than an aggregate principal
amount of zero as a result of such pro rata prepayment, the Corporation shall
prepay Securities of each such Securityholder so that after such prepayment such
Securityholder shall hold Securities either with an aggregate principal amount
of at least $100,000 or such Securityholder no longer holds any Securities and
shall use such method (including, without limitation, by lot) as the Corporation
shall deem fair and appropriate, provided, further, that any such proration may
be made on the basis of the aggregate principal amount of Securities held by
each Securityholder thereof and may be made by making such adjustments as the
Corporation deems fair and appropriate in order that only Securities in
denominations of $1,000 or integral multiples thereof shall be prepaid. In the
event of prepayment of this Security in part only, a new Security or Securities
for the portion hereof that has not been prepaid will be issued in the name of
the holder hereof upon the cancellation hereof.
Notwithstanding the foregoing, any prepayment of
Securities by the Corporation shall be subject to the prior approval of the
Board of Governors of the Federal Reserve System (the "Federal Reserve"), if
such approval is then required under applicable capital guidelines or policies
of the Federal Reserve, and the receipt of any other required regulatory
approvals.
In case an Event of Default (as defined in the
Indenture) shall have occurred and be continuing, the principal of all of the
Securities may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture contains provisions permitting the
Corporation and the Debenture Trustee, with the consent of the holders of a
majority in aggregate principal amount of the Securities at the time outstanding
(as defined in the Indenture) to execute supplemental indentures for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
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provisions of the Indenture or of modifying in any manner the rights of the
holders of the Securities; PROVIDED, HOWEVER, that no such supplemental
indenture shall, without the consent of each holder of Securities then
outstanding and affected thereby, (i) change the Maturity Date of any
Securities, or reduce the rate or extend the time of payment of interest thereon
(subject to Article XVI of the Indenture), or reduce the principal amount
thereof, or reduce any amount payable on prepayment thereof, or make the
principal thereof, or any interest or premium thereon, payable in any coin or
currency other than that provided in the Securities, or impair or affect the
right of any holder of Securities to institute suit for payment thereof, or (ii)
reduce the aforesaid percentage of Securities, the holders of which are required
to consent to any such supplemental indenture. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the Securities at the time outstanding affected thereby, on behalf of all of the
holders of the Securities, to waive any past default in the performance of any
of the covenants contained in the Indenture, or established pursuant to the
Indenture, and its consequences, except a default in the payment of the
principal of or premium, if any, or interest on any of the Securities or a
default in respect of any covenant or provision under which the Indenture cannot
be modified or amended without the consent of each holder of Securities then
outstanding. Any such consent or waiver by the holder of this Security (unless
revoked as provided in the Indenture) shall be conclusive and binding upon such
holder and upon all future holders and owners of this Security and of any
Security issued in exchange herefor or in place hereof (whether by registration
of transfer or otherwise), irrespective of whether or not any notation of such
consent or waiver is made upon this Security.
No reference herein to the Indenture and no
provision of this Security or of the Indenture shall alter or impair the
obligation of the Corporation, which is absolute and unconditional, to pay the
principal of and premium, if any, and interest (including Compounded Interest
and Additional Sums, if any) on this Security at the time and place and at the
rate and in the money herein prescribed.
So long as no Event of Default shall have occurred
and be continuing, the Corporation shall have the right, at any time and from
time to time during the term of the Securities, to defer payments of interest by
extending the interest payment period of such Securities for a period not (i)
exceeding 10 consecutive semi-annual periods, including the first such
semi-annual period during such extension period (ii) extending beyond the
Maturity Date of the Securities (an "Extended Interest Payment Period" ) or
(iii) ending on a date other than an Interest Payment Date, at the end of which
period the Corporation shall pay all interest then accrued and unpaid (together
with interest thereon at the rate specified for the Securities to the extent
that payment of such interest is enforceable under applicable
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law). Before the termination of any such Extended Interest Payment Period, the
Corporation may further defer payments of interest by further extending such
Extended Interest Payment Period, provided that such Extended Interest Payment
Period, together with all such previous and further extensions within such
Extended Interest Payment Period, (i) shall not exceed 10 consecutive
semi-annual periods, including the first semi-annual period during such Extended
Interest Payment Period, (ii) shall not end on any date other than an Interest
Payment Date, and (iii) shall not extend beyond the Maturity Date of the
Securities. Upon the termination of any such Extended Interest Payment Period
and the payment of all accrued and unpaid interest and any additional amounts
then due, the Corporation may commence a new Extended Interest Payment Period,
subject to the foregoing requirements. No interest shall be due and payable
during an Extended Interest Payment Period, except at the end thereof, but the
Corporation may prepay at any time all or any portion of the interest accrued
during an Extended Interest Payment Period.
The Corporation has agreed that it will not (i)
declare or pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Corporation's capital
stock (which includes common and preferred stock) or (ii) make any payment of
principal of or interest or premium, if any, on or repay, repurchase or redeem
any debt securities (including other Debentures) of the Corporation that rank
pari passu with or junior in right of payment to the Securities or (iii) make
any guarantee payments with respect to any guarantee (other than the Capital
Securities Guarantee, as defined in the Indenture) by the Corporation of the
debt securities of any Subsidiary of the Corporation (including Other
Guarantees) if such guarantee ranks PARI PASSU with or junior in right of
payment to the Securities (other than (a) dividends or distributions in shares
of, or options, warrants or rights to subscribe for or purchase shares of,
Common Stock of the Corporation, (b) any declaration of a dividend in connection
with the implementation of a stockholders' rights plan, or the issuance of stock
under any such plan in the future, or the redemption or repurchase of any such
rights pursuant thereto, (c) as a result of a reclassification of the
Corporation's capital stock or the exchange or conversion of one class or series
of the Corporation's capital stock for another class or series of the
Corporation's capital stock, (d) the purchase of fractional interests in shares
of the Corporation's capital stock pursuant to the conversion or exchange
provisions of such capital stock or the security being converted or exchanged
and (e) purchases of Common Stock related to the issuance of Common Stock or
rights under any of the Corporation's benefit or compensation plans for its
directors, officers or employees or any of the Corporation's dividend
reinvestment plans), if at such time (1) there shall have occurred any event of
which the Corporation has actual knowledge that (A) is, or with the giving of
notice or the lapse of time, or both, would constitute a Default or an Event of
Default and (B) in respect of which the Corporation shall not have taken
reasonable steps to cure, (2) if such Securities are held by the Property
Trustee of Banknorth Capital Trust I, the Corporation shall be in default with
respect to its payment of any obligations under the
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Capital Securities Guarantee or (3) the Corporation shall have given notice of
its election to exercise its right to commence an Extended Interest Payment
Period, and shall not have rescinded such Notice, and such Extended Interest
Payment Period or any extension thereof shall have commenced and be continuing.
Subject to (i) the receipt of any required
regulatory approval and (ii) the receipt of an opinion of counsel to the effect
that such distribution will not be a taxable event to holders of Capital
Securities, the Corporation will have the right at any time to liquidate the
Trust and cause the Securities to be distributed to the holders of the Trust
Securities in liquidation of the Trust.
The Securities are issuable only in registered
form without coupons in minimum denominations of $100,000 and multiples of
$1,000 in excess thereof. As provided in the Indenture and subject to the
transfer restrictions limitations as may be contained herein and therein from
time to time, this Security is transferable by the holder hereof on the Security
Register of the Corporation, upon surrender of this Security for registration of
transfer at the office or agency of the Corporation in New York, New York
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Corporation or the Debenture Trustee duly executed by the
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Securities of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge will be made for any such registration of transfer, but the
Corporation may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of
transfer of this Security, the Corporation, the Debenture Trustee, any
authenticating agent, any paying agent, any transfer agent and the security
registrar may deem and treat the holder hereof as the absolute owner hereof
(whether or not this Security shall be overdue and notwithstanding any notice of
ownership or writing hereon made by anyone other than the security registrar for
the Securities) for the purpose of receiving payment of or on account of the
principal hereof and premium, if any, and (subject to the Indenture) interest
due hereon and for all other purposes, and neither the Corporation nor the
Debenture Trustee nor any authenticating agent nor any paying agent nor any
transfer agent nor any security registrar shall be affected by any notice to the
contrary.
No recourse shall be had for the payment of the
principal of or premium, if any, or interest (including Compounded Interest and
Additional Sums, if any) on this Security, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against
any incorporator,
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stockholder, employee, officer or director, past, present or future, as such, of
the Corporation or of any predecessor or successor Person, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
All terms used but not defined in this Security
that are defined in the Indenture shall have the meanings assigned
to them in the Indenture.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICT OF LAW PRINCIPLES.
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