Exhibit 99.3
September , 1997
The First National Bank of Chicago
One First National Plaza
Chicago, Illinois 60670
Ladies and Gentlemen:
Banknorth Group, Inc., a Delaware corporation, as Sponsor (the
"Corporation"), and Banknorth Capital Trust I, a trust formed under the laws of
the State of Delaware (the "Trust"), hereby appoint THE FIRST NATIONAL BANK OF
CHICAGO to act as exchange agent (the "Exchange Agent") in connection with an
exchange offer by the Corporation and the Trust to exchange up to and including
$30,000,000 aggregate Liquidation Amount of the Trust's 10.52% Capital
Securities, Series B (the "Exchange, Capital Securities"), which have been
registered under the Securities Act of 1933, as amended (the "Securities Act"),
for a like aggregate Liquidation Amount of the Trust's outstanding 10.52%
Capital Securities, Series A (the "Original Capital Securities"). The terms and
conditions of the exchange offer are set forth in a Prospectus dated , 1997 (as
the same may be amended or supplemented from time to time, the "Prospectus") and
in the related Letter of Transmittal, which together constitute the "Exchange
Offer." The registered holders of the Original Capital Securities and the
Exchange Capital Securities (the "Capital Securities") are hereinafter referred
to as the "Holders." Capitalizedterms used herein and not defined shall have the
respective meanings assigned thereto in the Prospectus.
The Exchange Offer is expected to be commenced by the Trust on or about
, 1997. The Letter of Transmittal accompanying the Prospectus (or, in
the case of book-entry securities, the ATOP system) is to be used by the Holders
of the Original Capital Securities to accept the Exchange Offer and contains
instructions with respect to (i) the delivery of certificates for Original
Capital Securities tendered in connection therewith and (ii) the book-entry
transfer of Original Capital Securities to the Exchange Agent's account.
The Exchange Offer shall expire at 5:00 p.m. New York City time, on ,
1997, or on such later date or time to which the Trust may extend the Exchange
Offer from time to time by giving oral (to be confirmed in writing) or written
notice to the Exchange Agent before 9:00 a.m., New York City time, on the
business day following the previously scheduled Expiration Date.
The Trust expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange and Original Capital Securities
not theretofore accepted for exchange, based
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upon any conditions of the Exchange Offer described in the Prospectus. The Trust
will give oral (to be confirmed in writing) or written notice of any amendment,
termination or nonacceptance of Original Capital Securities to the Exchange
Agent promptly after any amendment, termination or nonacceptance.
On the basis of the representations, warranties and agreements of the
Corporation, the Trust and the Exchange Agent contained herein and subject to
the terms and conditions hereof, the following sets forth the agreement between
the Corporation, the Trust and the Exchange Agent for the Exchange Offer:
1. APPOINTMENT AND DUTIES AS EXCHANGE AGENT.
a. The Corporation and the Trust hereby authorize and appoint The First
National Bank of Chicago to act as Exchange Agent in connection with the
Exchange Offer and The First National Bank of Chicago agrees to act as Exchange
Agent in connection with the Exchange Offer. As Exchange Agent, The First
National Bank of Chicago will perform those services as are specifically set
forth in the section of the Prospectus captioned "The Exchange Offer" and as are
outlined herein.
b. The Corporation and the Trust acknowledge and agree that The First
National Bank of Chicago has been retained pursuant to this Agreement to act
solely as Exchange Agent in connection with the Exchange Offer, and in such
capacity, the Exchange Agent shall perform such duties in good faith.
c. The Exchange Agent will establish an account with respect to the
Original Capital Securities at The Depository Trust Company ("DTC") for the
purposes of the Exchange Offer within two business days after the date of the
Prospectus, and any financial institution that is a participant in DTC's system
may make book-entry delivery of the Original Capital Securities by causing DTC
to transfer such Original Capital Securities into the Exchange Agent's account
in accordance with DTC's procedure for such transfer.
d. The Exchange Agent will examine each of the Letters of Transmittal
and certificates for Original Capital Securities and any book-entry
confirmations and any other documents delivered or mailed to the Exchange Agent
by or for Holders of the Original Capital Securities to ascertain whether: (i)
the Letters of Transmittal and any such other documents are duly executed and
properly completed in accordance with the instructions set forth therein and
that such book-entry confirmations are in due and proper form and contain the
information required to be set forth therein, (ii) the Original Capital
Securities have otherwise been properly tendered, and (iii) Holders have
provided their correct Tax Identification Number or required certification.
Determination of all questions as to validity, form, eligibility and acceptance
for exchange of any Original Capital Securities shall be made by
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the Corporation or the Trust, whose determination shall be final and binding. In
each case where the Letters of Transmittal or any other documents have been
improperly completed or executed or where book-entry confirmations are not in
due and proper form or omit certain information, or any of the certificates for
Original Capital Securities are not in proper form for transfer or some other
irregularity in connection with the tender of the Original Capital Securities
exists, the Exchange Agent will endeavor to advise the tendering Holders of the
irregularity and to take any other action may be necessary or advisable as to
cause such irregularity to be corrected. Notwithstanding the foregoing, the
Exchange Agent shall not incur any liability for failure to give any such
notification.
e. With the approval of any Administrative Trustee of the Trust or any
person designated in writing by the Corporation (a "Designated Officer") (such
approval, if given orally, to be confirmed in writing) or any other party
designated by any Administrative Trustee or Designated Officer, the Exchange
Agent is authorized to waive any irregularities in connection with any tender of
Original Capital Securities pursuant to the Exchange Offer.
f. Tenders of Original Capital Securities may be made only as set forth
in the Letter of Transmittal and in the section of the Prospectus captioned "The
Exchange Offer" and Original Capital Securities shall be considered properly
tendered only when tendered in accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph, Original Capital Securities
which any Administrative Trustee or Designated Officer shall approve (such
approval, if given orally, to be confirmed in writing) as having been properly
tendered shall be considered to be properly tendered.
g. The Exchange Agent shall advise the Corporation and the Trust with
respect to any Original Capital Securities received after 5:00 p.m., New York
City time, on the Expiration Date and accept their instructions with respect to
disposition of such Original Capital Securities.
h. The Exchange Agent shall accept tenders:
(a) in cases where the Original Capital Securities are
registered in two or more names only if signed by all named
Holders;
(b) in cases where the signing person (as indicated on the
Letter of Transmittal) is acting in a fiduciary or a representative
capacity only when proper evidence of such person's authority so to act
is submitted; and
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(c) from persons other than the Holder of Original Capital
Securities provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
The Exchange Agent shall accept partial tenders of Original Capital
Securities where so indicated and as permitted in the Letter of Transmittal and
deliver certificates for Original Capital Securities to the transfer agent for
split-up and return any untendered Original Capital Securities or Original
Capital Securities which have not been accepted by the Corporation and the Trust
to the Holder (or such other person as may be designated in the Letter of
Transmittal) as promptly as practicable after expiration or termination of the
Exchange Offer.
i. Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, the Trust will notify the Exchange Agent (such notice if given orally, to
be confirmed in writing) of its acceptance, promptly after the Expiration Date,
of all Original Capital Securities properly tendered and the Exchange Agent, on
behalf of the Trust, will exchange such Original Capital Securities for Exchange
Capital Securities and cause such Original Capital Securities to be canceled.
Delivery of Exchange Capital Securities will be made on behalf of the Trust by
the Exchange Agent at the rate of $1,000 Liquidation Amount of Original Capital
Securities tendered promptly after notice (such notice if given orally, to be
confirmed in writing) of acceptance of said Original Capital Securities by the
Trust; provided, however, that in all cases, Original Capital Securities
tendered pursuant to the Exchange Offer will be exchanged only after timely
receipt by the Exchange Agent of certificates for such Original Capital
Securities (or confirmation of book-entry transfer into the Exchange Agent's
account at DTC), a properly completed and duly executed Letter of Transmittal
(or facsimile thereof) or Agent's Message in lieu thereof), with any required
signature guarantees and any other required documents. You shall issue Exchange
Capital Securities only in Liquidation Amounts of $100,000 or any integral
multiple of $1,000 in excess thereof.
j. Tenders pursuant to the Exchange Offer are irrevocable, except that,
subject to the terms and the conditions set forth in the Prospectus and the
Letter of Transmittal, Original Capital Securities tendered pursuant to the
Exchange Offer may be withdrawn at any time on or prior to the Expiration Date.
k. The Trust shall not be required to exchange any Original Capital
Securities tendered if any of the conditions set forth in the Exchange Offer are
not met. Notice of any decision by the Corporation and the Trust not to exchange
any Original Capital Securities tendered shall be given by the Corporation or
the Trust orally (and confirmed in writing) to the Exchange Agent.
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l. If, pursuant to the Exchange Offer, the Corporation and the Trust do
not accept for exchange all or part of the Original Capital Securities tendered
because of an invalid tender, the occurrence of certain other events set forth
in the Prospectus under the caption "The Exchange Offer--Conditions to the
Exchange Offer" or otherwise, the Exchange Agent shall promptly after the
expiration or termination of the Exchange Offer return such certificates for
unaccepted Original Capital Securities (or effect appropriate book-entry
transfer), together with any related required documents and the Letters of
Transmittal relating thereto that are in the Exchange Agent's possession, to the
persons who deposited such certificates.
m. Certificates for reissued Original Capital Securities, unaccepted
Original Capital Securities or for Exchange Capital Securities shall be
forwarded by (a) first-class certified mail, return receipt requested under a
blanket surety bond obtained by the Exchange Agent protecting the Exchange
Agent, the Corporation and the Trust from loss or liability arising out of the
non-receipt or non-delivery or such certificates or (b) by registered mail
insured by the Exchange Agent separately for the replacement value of each such
certificate.
n. The Exchange Agent is not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, commercial
bank, trust company or other persons or to engage or use any person to solicit
tenders.
o. As Exchange Agent, The First National Bank of Chicago:
(i) shall have no duties or obligations other than those
specifically set forth in the section of the Prospectus captioned "The
Exchange Offer," the Letter of Transmittal or herein or as may be
subsequently agreed to in writing;
(ii) will make no representations and will have no
responsibilities as to the validity, value or genuineness of any of the
certificates for the Original Capital Securities deposited pursuant to
the Exchange Offer, and will not be required to and will make no
representation as to the validity, value or genuineness of the Exchange
Offer;
(iii) shall not be obligated to take any legal action
hereunder which might in the Exchange Agent's reasonable judgment
involve any expense or liability, unless the Exchange Agent shall have
been furnished with reasonable indemnity;
(iv) may reasonably rely on and shall be protected in acting
in reliance upon any certificate, instrument, opinion, notice, letter,
telegram or other document or security delivered to the Exchange Agent
and reasonably believed by the
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Exchange Agent to be genuine and to have been signed by the
proper party or parties;
(v) may reasonably act upon any tender, statement, request,
agreement or other instrument whatsoever not only as to its due
execution and validity and effectiveness of its provisions, but also as
to the truth and accuracy of any information contained therein, which
the Exchange Agent believes in good faith to be genuine and to have
been signed or represented by a proper person or persons;
(vi) may rely on and shall be protected in acting upon written
or oral instructions from any Administrative Trustee or Designated
Officer;
(vii) may consult with its own counsel with respect to any
questions relating to the Exchange Agent's duties and responsibilities
and the advice of such counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted to
be taken by the Exchange Agent hereunder in good faith and in
accordance with the advice or opinion of such counsel;
(viii) shall not advise any person tendering Original Capital
Securities pursuant to the Exchange Offer as to whether to tender or
refrain from tendering all or any portion of its Original Capital
Securities or as to the market value, decline or appreciation in market
value of any Original Capital Securities or as to the market value of
the Exchange Capital Securities; and
(ix) The Exchange Agent shall take such action as may from
time to time be requested by the Corporation or the Trust to furnish
copies of the Prospectus, Letter of Transmittal and the Notice of
Guaranteed Delivery, or such other forms as may be approved from time
to time by the Corporation and the Trust, to all persons requesting
such documents and to accept and comply with telephone requests for
information relating to the procedures for accepting (or withdrawing
from) the Exchange Offer. The Corporation and the Trust will furnish
you with copies of such documents at your request.
p. The Exchange Agent shall advise by facsimile transmission or
telephone and promptly thereafter confirm in writing to the Corporation and the
Trust and such other persons as the Corporation and the Trust may request, daily
(and more frequently during the week immediately preceding the Expiration Date
and if otherwise requested), up to and including the Expiration Date, the
Aggregate Liquidation Amount of Original Capital Securities which have been
tendered pursuant to the Exchange Offer and the items received by the Exchange
Agent pursuant to the Exchange Offer and this Agreement, reporting separately
and cumulatively as to items
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properly received and items improperly received. In addition, the Exchange Agent
will also provide, and cooperate in making available to the Corporation and the
Trust or any such other persons as requested from time to time, such other
information in its possession as the Corporation and the Trust may reasonably
request. Such cooperation shall include, without limitation, the granting by the
Exchange Agent to the Corporation and the Trust, and such persons as the
Corporation and the Trust may request, of access to those persons on the
Exchange Agent's staff who are responsible for receiving tenders, in order to
ensure that immediately prior to the Expiration Date the Corporation and the
Trust shall have received information in sufficient detail to enable the
Corporation and the Trust to decide whether to extend the Exchange Offer. The
Exchange Agent shall prepare a final list of all persons whose tenders were
accepted, the aggregate Liquidation Amount of Original Capital Securities
tendered and the aggregate Liquidation Amount of Original Capital Securities
accepted and deliver said list to the Corporation and the Trust.
q. Letters of Transmittal, book-entry confirmation and Notices of
Guaranteed Delivery shall be stamped by the Exchange Agent as to the date and
time of receipt thereof and shall be preserved by the Exchange Agent for a
period of time at least equal to the period of time the Exchange Agent preserves
other records pertaining to the transfer of securities, or one year, whichever
is longer, and thereafter shall be delivered by the Exchange Agent to the
Corporation and the Trust. The Exchange Agent shall dispose of unused Letters of
Transmittal and other surplus materials by returning them to the Corporation or
the Trust.
r. The Exchange Agent hereby expressly waives any lien, encumbrance or
right of set-off whatsoever that the Exchange Agent may have respect to funds
deposited with it for the payment of transfer taxes by reasons of amounts, if
any, borrowed by the Corporation or the Trust, of any of its or their
subsidiaries or affiliates pursuant to any loan or credit agreement with the
Exchange Agent or for compensation owed to the Exchange Agent hereunder or for
any other matter.
s. The Exchange Agent hereby acknowledges receipt of the Prospectus and
the Letter of Transmittal and the Notice of Guaranteed Delivery and further
acknowledges that it has examined each of them. Any inconsistency between this
Agreement, on the one hand, and the Prospectus, the Letter of Transmittal and
the Notice of Guaranteed Delivery (as they may be amended or supplemented from
time to time), on the other hand, shall be resolved in favor of the latter three
documents, except with respect to the duties, liabilities and indemnification of
the Exchange Agent which shall be controlled by this Agreement.
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2. COMPENSATION
For services rendered as Exchange Agent hereunder, the Exchange Agent
shall be entitled to such compensation as is set forth on Schedule I attached
hereto.
3. INDEMNIFICATION
a. The Trust hereby agrees to indemnify and hold harmless the Exchange
Agent against and from any and all costs, losses, liabilities and expenses
(including reasonable counsel fees and disbursements) arising out of or in
connection with any act, omission, delay or refusal made by the Exchange Agent
in reliance upon any signature, endorsement, assignment, certificate, order,
request, notice, instruction or other instrument or document reasonably believed
by the Exchange Agent to be valid, genuine and sufficient and in accepting any
tender or effecting any transfer of Original Capital Securities reasonably
believed by the Exchange Agent in good faith to be authorized, and in delaying
or refusing in good faith to accept any tenders or effect any transfer of
Original Capital Securities. Anything in this Agreement to the contrary
notwithstanding, neither the Corporation nor the Trust shall be liable for
indemnification or otherwise for any loss, liability, cost or expense to the
extent arising out of the Exchange Agent's bad faith, negligence or willful
misconduct. In no case shall the Trust be liable under this indemnity with
respect to any claim against the Exchange Agent until the Trust shall be
notified by the Exchange Agent, by letter, of the written assertion of a claim
against the Exchange Agent or of any other action commenced against the Exchange
Agent, promptly after the Exchange Agent shall have received any such written
assertion or notice of commencement of action. The Trust shall be entitled to
participate at its own expense in the defense of any such claim or other action,
and, if the Trust so elects, the Trust may assume the defense of any pending or
threatened action to enforce any such claim. In the event that the Trust shall
assume the defense of any such suit or threatened action in respect of which
indemnification may be sought hereunder, the Trust shall not be liable for the
fees and expenses incurred thereafter of any additional counsel retained by the
Exchange Agent so long as the Exchange Agent consents to the Trust's retention
of counsel, which consent may not be unreasonably withheld; provided, however,
that the Trust shall not be entitled to assume the defense of any such action if
the named parties to such action include the Corporation or the Trust and the
Exchange Agent and representation of the parties by the same legal counsel
would, in the written opinion of counsel for the Exchange Agent, be
inappropriate due to actual or potential conflicting interests among them. It is
understood that neither the Corporation nor the Trust shall be liable under this
paragraph for the fees and disbursements of more than one legal counsel for the
Exchange Agent. In the event that the Trust shall assume the defense of any such
suit with counsel reasonably acceptable to the Exchange Agent,
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the Trust shall not thereafter be liable for the fees and expenses of any
counsel retained by the Exchange Agent.
b. The Exchange Agent agrees that, without the prior written consent of
the Trust, it will not settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding in respect of
which indemnification could be sought in accordance with the indemnification
provision of this Agreement (whether or not the Exchange Agent, the Corporation
and the Trust or any of their directors, officers and controlling persons is an
actual or potential party to such claim, action or proceeding), unless such
settlement, compromise or consent includes an unconditional release of the
Corporation and the Trust and its directors, officers and controlling persons
from all liability arising out of such claim, action or proceeding.
4. TAX INFORMATION
a. The Exchange Agent shall arrange to comply with all requirements
under the tax laws of the United States, including those relating to missing Tax
Indemnification Numbers, and shall file any appropriate reports with the
Internal Revenue Service. The Corporation and the Trust understand that the
Exchange Agent is required, in certain instances,to deduct 31% with respect to
interest paid on the Exchange Capital Securities and proceeds from the sale,
exchange, redemption or retirement of the Exchange Capital Securities from
Holders who have not supplied their correct Taxpayer Identification Number or
required certification. Such funds will be turned over to the Internal Revenue
Service in accordance with applicable regulations. The Exchange Agent shall
notify the Corporation and the Trust of any Holder who has failed to supply such
Taxpayer Identification Number or certification.
b. The Exchange Agent shall notify the Trust of the amount of any
transfer taxes payable in respect of the exchange of Original Capital Securities
and, upon receipt of written approval from the Trust, the Exchange Agent shall
deliver or cause to be delivered, in a timely manner to each governmental
authority to which any transfer taxes are payable in respect of the exchange of
Original Capital Securities, its check in the amount of all transfer taxes so
payable, and the Trust shall reimburse the Exchange Agent for the amount of any
and all transfer taxes payable in respect of the exchange of Original Capital
Securities; provided, however, that the Exchange Agent shall reimburse the trust
for amounts refunded to the Exchange Agent in respect of you payment of any such
transfer taxes, as such time as such refund is received by the Exchange Agent.
5. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York
applicable to contracts executed in and to be performed in that
state without regard to conflicts of laws principles.
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6. NOTICES. Any communication or notice provided for hereunder shall be in
writing and shall be given (and shall be deemed to have been given upon receipt)
by delivery in person, telecopy, or overnight delivery or by registered or
certified mail (postage prepaid, return receipt requested) to the applicable
party at the address indicated below:
If to the Trust:
Banknorth Capital Trust I
c/o Banknorth Group, Inc.
300 Financial Plaza
P.O. Box 5420
Burlington, Vermont 05401
Telephone: (802)658-2492
Telecopy: (802)860-5437
Attention: Neal E. Robinson
If to the Exchange Agent:
The First National Bank of Chicago
153 West 51st Street, 5th Floor
New York, New York 10019
Telephone: 212-373-1191
Telecopy: 212-373-1383
Attention: Melissa G. Weisman
or, as to each party, at such other address as shall be designated by such party
in a written notice complying as to delivery with the terms of this Section.
7. PARTIES IN INTEREST. This Agreement shall be binding upon and inure solely to
the benefit of each party hereto and their successors and assigns and noting in
this Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement. Without limitation to the foregoing, the parties
hereto expressly agree that no Holder of Original Capital Securities or Exchange
Capital Securities shall have any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
8. COUNTERPARTS; SEVERABILITY. This Agreement may be executed in one or more
counterparts, and each of such counterparts shall together constitute one and
the same agreement. If any term or other provision of this Agreement or the
application thereto is invalid, illegal or incapable of being enforced by any
rule of law, or public policy, all other provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the agreements contained herein is not affected in any manner
adverse to any party. Upon such determination that any term or provision or the
application thereof
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is invalid, illegal or unenforceable, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
agreements contained herein may be performed as originally contemplated to the
fullest extent possible.
9. CAPTIONS. The descriptive headings contained in this
Agreement are included for convenience of reference only and shall
not affect in any way the meaning or interpretation of this
Agreement.
10. ENTIRE AGREEMENT; AMENDMENT. This Agreement constitutes the
entire understanding of the parties hereto with respect to the
subject matter hereof. This Agreement may not be amended or
modified nor may any provision hereof be waived except in writing
signed by each party to be bound thereby.
11. TERMINATION. This Agreement shall terminate upon the earlier of (a) the 90th
day following the expiration, withdrawal, or termination of the Exchange Offer,
(b) the close of business on the date of actual receipt of written notice by the
Exchange Agent from the Corporation and the Trust stating that this Agreement is
terminated, (c) one year following the date of this Agreement, or (d) the time
and date on which this Agreement shall be terminated by mutual consent of the
parties hereto. Notwithstanding the foregoing, Paragraphs 2, 3 and 4 shall
survive termination of this Agreement.
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Kindly indicate the Exchange Agent's acceptance of the foregoing
provisions by signing in the space provided below for that purpose and returning
to the Corporation a copy of this Agreement so signed, whereupon this Agreement
shall constitute a binding agreement among the Exchange Agent, the Corporation
and the Trust.
Very truly yours,
BANKNORTH GROUP, INC.
By:___________________________________
Name: William H. Chadwick
Title: President and
Chief Executive Officer
BANKNORTH CAPITAL TRUST I
By:___________________________________
Name: Neal E. Robinson
Title: Administrative Trustee
Accepted and agreed to as
of the date first written
above:
THE FIRST NATIONAL BANK OF CHICAGO
By:___________________________________
Name: Richard D. Manella
Title: Vice President and
Senior Counsel
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SCHEDULE I
THE FIRST NATIONAL BANK OF CHICAGO
FEE SCHEDULE
EXCHANGE AGENT SERVICES
BANKNORTH CAPITAL TRUST I
________________________________________________________________________________
I. Exchange Agency
A fee for the receipt of exchanged 10.52% Capital Securities, Series A,
of Banknorth Capital Trust I will be charged at $6.50 per Letter of
Transmittal. The total charge will be subject to a minimum of $2,000
and maximum of $5,000.
This fee covers examination and execution of all required
documentation, receipt of transmittal letters, reporting as required to
the Company and communication with DTC.
II. Miscellaneous
Fees for services not specifically covered in this schedule will be
assessed in amounts commensurate with the services rendered.
[ ], 1997