Exhibit
4.5
DEBT SECURITIES
PURCHASE AGREEMENT
Dated as of
April 10, 2008
THIS DEBT SECURITIES PURCHASE AGREEMENT (this "Purchase Agreement")
is made between Bar Harbor Bank & Trust, a Maine banking
association, with its principal offices located at 82 Main Street,
Bar Harbor, Maine 04609 (the "Bank" or the "Issuer") and Alesco
Preferred Funding XVII (the "Purchaser").
RECITALS:
A. The Issuer desires to issue $5,000,000 in aggregate
principal amount of its Subordinated Debentures (the "Debt
Securities"), to be issued pursuant to an Indenture (the
"Indenture"), dated as of April 11, 2008 between the Bank, as
Issuer, and U.S. Bank, National Association, as trustee (the
"Trustee"); and
B. In connection with the Placement Agreement and the
issuance and sale of the Debt Securities pursuant thereto, the
Purchaser desires to purchase from the Bank, and the Bank desires
to sell to the Purchaser, all of the Debt Securities. Capitalized
terms used herin and not otherwise defined herein have the
respective meanings ascribed thereto in the Placement Agreement (as
defined below).
C. In consideration of the premises and the mutual
representations and covenants hereinafter set forth, the parties
herto agree as follows:
ARTICLE
1
PURCHASE AND SALE OF
DEBT SECURITIES
1.1 Upon the execution of this
Purchase Agreement, the Purchaser hereby agrees to purchase the
Debt Securities from the Issuer for an aggregate price of
$5,000,000 (the "Purchase Price") and the Issuer agrees to sell to
the Purchaser Debt Securities in the aggregate principal amoung of
$5,000,000 (the "Aggregate Principal Amount") to the Purchaser for
the Purchase Price. The Debt Securities shall be issued and sold
free from all liens, charges and encumbrances, equities and other
third-party rights of any nature whatsoever. The Purchase Price is
payable by the Purchaser not later than April 11, 2008 (the
"Closing Date") in immediately available funds to the account
designated by the Trustee.
1.2 The certificate for the Debt
Securities shall be delivered in definitive form by the Issuer on
the Closing Date to the Purchaser or its designee, and shall be
registered in the name of the Purchaser and shall represent the
aggregate liquidation amount of the Debt Securities being purchased
by the Purchaser.
1.3 The Purchaser acknowledges and
the Issuer agrees that it will register any transfer of the Debt
Securities not made in accordance with Regulation S under the
Securities Act of 1933, as amended (the "Securities Act"), or
otherwise make such transfers pursuant to another available
exemption from registration thereunder.
1.4 The Placement Agreement, dated
April 10, 2008 (the "Placement Agreement"), between the Issuer and
Cohen & Company, as placement agent (the "Placement Agent")
includes certain representations and warranties, covenants and
conditions to closing and certain other matters governing the
issuance and sale of the Debt Securities by the Issuer to the
Purchaser. Each of the provisions of the Placement Agreement,
including the definitions therein, are hereby incorporated by
reference into this Purchase Agreement. In addition, to the extent
provided for in the Placement Agreement, the Purchaser shall be
entitled to each of the benefits of the Placement Agent and the
Purchaser under the Placement Agreement and shall be entitled to
enforce the obligations of the Issuer under the Placement Agreement
as fully as if the Purchaser were a party to such Placement
Agreement, it being agreed between the parties that any and all
representations made by the Issuer to the Placement Agent in the
Placement Agreement shall be deemed to have also been made to the
Purchaser.
1.5 If any condition specified
herein or in the Placement Agreement shall not have been fulfilled
when and as required to be fulfilled by, on behalf of or in respect
of the Issuer or the Debt Securities, this Purchase Agreement may
be terminated by the Purchaser by notice to the Issuer at any time
at or prior to the Closing Date, and such termination shall be
without libility of any party to any other party except that
Sections 3, 4, 8, 9, 10, 12, 13 and 14 of the Placement Agreement
shall survive any such termination and remain in full force and
effect.
1.6 Subject to the provisions of Article 2
hereof, the Purchaser may resell the Debt Securities to a
subsequent purchaser either individually or on behalf of a
collateralized debt obligation investor ("CDO Investor") that is
sponsored or advised by such subsequent purchaser (any such
purchaser from the Purchaser and related CDO Investors are referred
to hereinafter as a "Subsequent Purchaser"). Upon transfer of the
Debt Securities to a Subsequent Purchaser, the Subsequent Purchaser
shall be entitled to each of the benefits of the Placement Agent
and the Purchaser under the Placement Agreement and this Purchase
Agreement, and shall be entitled to enforce the obligations of the
Issuer under the Placement Agreement and this Purchase Agrement, as
fully as if the Subsequent Purchaser were a party to the Placement
Agreement and this Purchase Agreement.
ARTICLE
2
REPRESENTATIONS AND
WARRANTIES OF PURCHASER
2.1 The Purchaser understands and acknowledges
that the Debt Securities have not been registered under the
Securities Act, or any other applicable securities laws, and are
being offered for sale by the Issuer in a transaction not requiring
registration under the Securities Act, and the Debt Securities may
not be offered, sold, pledged or otherwise transferred by the
Purchaser except in compliance with the registration requirements
of the Securities Act, or any other applicable securities laws,
pursuant to an exemption therefrom or in a transaction not subject
thereto.
2.2 The Purchaser represents, warrants and
certifies that (i) it is not a "U.S. person" as such term is
defined in Rule 902 under the Securities Act, (ii) it is not
acquiring the Debt Securities for the account or benefit of any
such U.S. person, (iii) the offer and sale of the Debt Securities
to the Purchaser contitutes an "offshore transaction" under
Regulation S of the Securities Act, and (iv) it will not engage in
hedging transactions with regard to the Debt Securities unless such
transactions are conducted in compliance with the Securities
Act.
2.3 The Purchaser represents and warrants that
it is purchasing the Debt Securities for its own account, for
investment and not with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the
Securities Act or other applicable securities laws, subject to any
requirement of law that the disposition of its property be at all
times within its control and subject to its ability to resell such
Debt Securities pursuant to an effective registration statement
under the Securities Act or under Rules 144A and 902 under the
Securities Act or any other exemption from registration available
under theSecurities Act or any other applicable securities laws,
and
