EHIBIT 99(d)
--------------------, 1996
EXCHANGE AGENT AGREEMENT
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
HUBCO, Inc. (the "Company") proposes to make an offer (the
"Exchange Offer") to exchange its outstanding 8.20% Subordinated Debentures due
2006 (the "Old Debentures") for its registered 8.20% Subordinated Debentures due
2006 (the "Exchange Debentures"), respectively. The terms and conditions of the
Exchange Offer as currently contemplated are set forth in a prospectus, dated
November ___, 1996 (the "Prospectus"), proposed to be distributed to all record
holders of the Old Debentures. The Old Debentures and the Exchange Debentures
are collectively referred to herein as the "Debentures".
The Company hereby appoints Marine Midland Bank to act as
exchange agent (the "Exchange Agent") in connection with the Exchange Offer.
This Agreement will govern the terms under which you will act as Exchange Agent
pursuant to the Exchange Offer. References hereinafter to "you" shall refer to
Marine Midland Bank.
The Exchange Offer is expected to be commenced by the Company
on or about November __, 1996. The Letter of Transmittal accompanying the
Prospectus is to be used by the holders of the Old Debentures to accept the
Exchange Offer, and contains instructions with respect to the delivery of Old
Debentures tendered. The Exchange Agent's obligations with respect to receipt
and inspection of the Letter of Transmittal in connection with this Exchange
Offer shall be satisfied for all purposes hereof by inspection of the electronic
message transmitted to the Exchange Agent by Exchange Offer participants in
accordance with the Automated Tender Offer Program ("ATOP") of the Depository
Trust Company ("DTC"), and by otherwise observing and complying with all
procedures established by DTC in connection with ATOP.
The Exchange Offer shall expire at 5:00 p.m., New York City
time, on December ____, 1996 or on such later date or time to which the Company
may extend the Exchange Offer (the "Expiration Date"). Subject to the terms and
conditions set forth in the Prospectus, the Company expressly reserves the right
to extend the Exchange Offer from time to time and may extend the Exchange Offer
by giving oral (confirmed in writing) or written notice to you before 5:00 p.m.,
New York City time, on the business day following the previously scheduled
Expiration Date, and in such case the term "Expiration Date" shall mean the time
and date on which such Exchange Offer as so extended shall expire.
The Company expressly reserves the right to delay, amend or
terminate the Exchange Offer, and not to accept for exchange any Old Debentures
not theretofore accepted for exchange, upon the occurrence of any of the
conditions of the Exchange Offer specified in the Prospectus under the caption
"The Exchange Offer - Expiration Date; Extensions" and "- Conditions to the
Exchange Offer". The Company will give to you as promptly as practicable oral
(confirmed in writing) or written notice of any delay, amendment, termination or
non-acceptance.
In carrying out your duties as Exchange Agent, you are to act
in accordance with the following instructions:
1. You will perform such duties and only such duties as are
specifically set forth herein or in the section of the Prospectus captioned the
"Exchange Offer" and such duties which are necessarily incidental thereto.
2. You will establish an account with respect to the Old
Debentures at the Depository Trust Company (the "Book-Entry Transfer Facility")
for purposes of the Exchange Offer within two business days after the date of
the Prospectus and any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry delivery of the Old
Debentures by causing the Book-Entry Transfer Facility to transfer such Old
Debentures into your account in accordance with the Book-Entry Transfer
Facility's procedure for such transfer.
3. You are to examine each of the Letters of Transmittal and
Old Debentures (or confirmation of book-entry transfer into your account at the
Book-Entry Transfer Facility) and any other documents delivered or mailed to you
by or for holders of the Old Debentures to ascertain whether: (i) the Letter of
Transmittal and any such other documents are duly executed and properly
completed in accordance with instructions set forth therein and in the
Prospectus and (ii) the Old Debentures have otherwise been properly tendered. In
each case where the Letter of Transmittal and or any other documents has been
improperly completed or executed or any of the Old Debentures are not in proper
form for transfer or some other irregularity in connection with the acceptance
of the Exchange Offer exists, you will endeavor to inform the presenters of the
need for fulfillment of all requirements and to take any other action as may be
necessary or advisable to cause such irregularity to be corrected.
4. With the approval of the Chairman of the Board, the
President, or the Executive Vice President of the Company (such approval, if
given orally, promptly to be confirmed in writing) or any other party designated
by such officer in writing, you are authorized to waive any irregularities in
connection with any tender of Old Debentures pursuant to the Exchange Offer.
5. Except as set forth in the last sentence of the third
introductory paragraph of this Agreement, tenders of Old Debentures may be made
only as set forth in the Letter of Transmittal and in the section of the
Prospectus captioned "The Exchange Offer - Procedures for Tendering" and the Old
Debentures shall be considered properly tendered to you only when tendered in
accordance with the procedures set forth therein.
Notwithstanding the provisions of this paragraph 5, Old
Debentures which the Chairman of the Board, the President or the Executive Vice
President of the Company or any other party designated by any such officer in
writing shall approve as having been properly tendered shall be considered to be
properly tendered (such approval, if given orally, promptly shall be confirmed
in writing.)
6. You shall advise the Company with respect to any Old
Debentures delivered subsequent to the Expiration Date and accept its
instructions with respect to disposition of such Old Debentures.
7. You shall accept tenders:
(a) in cases where the Old Debentures 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 his or her authority so to act is submitted; and
(c) from persons other than the registered holder of Old
Debentures provided that customary transfer requirements, including any
applicable transfer taxes, are fulfilled.
You shall accept partial tenders of Old Debentures where
so indicated and as permitted in the Letter of Transmittal and deliver the Old
Debentures to the transfer agent for split-up and return any untendered Old
Debentures 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.
8. Upon satisfaction or waiver of all of the conditions to the
Exchange Offer, the Company will notify you (such notice if given orally,
promptly to be confirmed in writing) of its acceptance, promptly after the
Expiration Date, of all Old Debentures properly tendered and you, on behalf of
the Company, will exchange such Old Debentures for Exchange Debentures and cause
such Old Debentures to be canceled. Delivery of Exchange Debentures will be made
on behalf of the Company by you at the rate of $1,000 principal amount of
Exchange Debentures for each $1,000 principal amount of the Old Debentures
tendered promptly after notice (such notice if given orally, promptly to be
confirmed in writing) of acceptance of said Old Debentures by the Company;
provided, however, that in all cases Old Debentures tendered pursuant to the
Exchange Offer will be exchanged only after timely receipt by you of
certificates for such Old Debentures (or confirmation of book-entry transfer
into your account at the Book-Entry Transfer Facility), a properly completed and
duly executed Letter of Transmittal (or facsimile thereof) with any required
signature guarantees and any other required document. You shall issue Exchange
Debentures only in minimum denominations of $25,000 and in integral multiples of
$1,000 in excess thereof.
9. Tenders pursuant to the Exchange Offer are irrevocable,
except that, subject to the terms and upon the conditions set forth in the
Prospectus and the Letter of Transmittal, Old Debentures tendered pursuant to
the Exchange Offer may be withdrawn at any time prior to the Expiration Date.
10. The Company shall not be required to exchange any Old
Debentures tendered if any of the conditions set forth herein or in the Exchange
Offer are not met. Notice of any decision by the Company not to exchange any Old
Debentures tendered shall be given (such notices if given orally, promptly shall
be confirmed in writing) by the Company to you.
11. If, pursuant to the Exchange Offer, the Company does not
accept for exchange all or part of the Old Debentures tendered because of an
invalid tender, the occurrence of certain other events set forth in the
Prospectus under the captions "The Exchange Offer Expiration Date; Extensions"
and " - Conditions to the Exchange Offer" or otherwise, you shall as soon as
practicable after the expiration or termination of the Exchange Offer return
those certificates for unaccepted Old Debentures (or effect appropriate
book-entry transfer), together with any related required documents and the
Letters of Transmittal relating thereto that are in your possession, to the
persons who deposited them.
12. All reissued Old Debentures, unaccepted Old Debentures, or
Exchange Debentures shall be forwarded by (a) first-class mail, postage pre-paid
under a blanket surety bond protecting you and the Company from loss or
liability arising out of the non-receipt or non-delivery of such certificates or
(b) by registered mail insured separately for the replacement value of each of
such Notes.
13. You are not authorized to pay or offer to pay any
concessions, commissions or solicitation fees to any broker, dealer, bank or
other persons or to engage or utilize any persons to solicit tenders.
14. As Exchange Agent hereunder you:
(a) will be regarded as making no representations and
having no responsibilities as to the validity, sufficiency, value or genuineness
of any of the Old Debentures deposited with you 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;
(b) shall not be obligated to take any legal action
hereunder which might in your reasonable judgment involve any expense or
liability, unless you shall have been furnished with reasonable indemnity;
(c) shall not be liable to the Company for any action taken
or omitted by you, or any action suffered by you to be taken or omitted, without
negligence, misconduct or bad faith on your part, by reason of or as a result of
the administration of your duties hereunder in accordance with the terms and
conditions of this Agreement or by reason of your compliance with the
instructions set forth herein or with any written or oral instructions delivered
to you pursuant hereto, and may reasonably rely on and shall be protected in
acting in good faith in reliance upon any certificate, instrument, opinion,
notice, letter, facsimile or other document or security delivered to you and
reasonably believed by you to be genuine and to have been signed by the proper
party or parties;
(d) may reasonably act upon any tender, statement, request,
comment, 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 you shall in good
faith reasonably believe to be genuine or to have been signed or represented by
a proper person or persons;
(e) may rely on and shall be protected in acting upon
written notice or oral instructions (confirmed in writing) from any officer of
the Company so specified in this Agreement with respect to the Exchange Offer;
(f) shall not advise any person tendering Old Debentures
pursuant to the Exchange Offer as to the wisdom of making such tender or as to
the market value or decline or appreciation in market value of any Old
Debentures;
(g) may consult with counsel and the written advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by you hereunder in good
faith and in reliance thereon.
15. You shall send to all holders of Old Debentures a copy of
the Prospectus, the Letter of Transmittal, the Notice of Guaranteed Delivery, as
defined in the Prospectus, and such other documents (collectively, the "Exchange
Offer Documents") as may be furnished by the Company to commence the Exchange
Offer and take such other action as may from time to time be requested by the
Company or its counsel (and such other action as you may reasonably deem
appropriate) to furnish copies of the Exchange Offer Documents or such other
forms as may be approved from time to time by the Company, to all holders of Old
Debentures and to all persons requesting such documents and to accept and comply
with telephone requests for information relating to the Exchange Offer, provided
that such information shall relate only to the procedures for accepting (or
withdrawing from) the Exchange Offer. The Company will furnish you with copies
of such documents at your request. All other requests for information relating
to the Exchange Offer shall be directed to the Company, Attention, X. Xxxx Van
Borkulo-Xxxxx, Corporate Secretary, at the Company's offices at 0000 XxxXxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, telephone (000) 000-0000.
(16) You shall advise by facsimile transmission or telephone,
and promptly thereafter confirm in writing to X. Xxxx Van Borkulo-Xxxxx of the
Company, and such other person or persons as the Company may request in writing,
not later than 7:00 p.m., New York City time, each business day, and more
frequently if reasonably requested, up to and including the Expiration Date, as
to the number of Old Debentures which have been tendered pursuant to the
Exchange Offer and the items received by you pursuant to this Agreement,
separately reporting and giving cumulative totals as to items properly received
and items improperly received. In addition, you will also inform, and cooperate
in making available to, the Company or any such other person or persons as the
Company requests in writing from time to time prior to the Expiration Date of
such other information as it reasonably requests. Such cooperation shall
include, without limitation, the granting by you to the Company and such person
as the Company may request of access to those persons on your staff who are
responsible for receiving tenders, in order to ensure that immediately prior to
the Expiration Date the Company shall have received information in sufficient
detail to enable it to decide whether to extend the Exchange Offer. You shall
prepare a final list of all persons whose tenders were accepted, the aggregate
principal amount of Old Debentures tendered and the aggregate principal amount
of Old Debentures accepted and deliver said list to the Company.
(17) Letters of Transmittal and Notices of Guaranteed Delivery
shall be stamped by you as to the date and the time of receipt thereof and shall
be preserved by you for a period of time at least equal to the period of time
you customarily preserve other records pertaining to the transfer of securities.
You shall dispose of unused Letters of Transmittal and other surplus materials
in accordance with your customary procedures.
(18) You hereby expressly waive any lien, encumbrance or right
of set-off whatsoever that you may have with respect to funds deposited with you
for the payment of transfer taxes by reasons of amounts, if any, borrowed by the
Company or any of its subsidiaries or affiliates pursuant to any loan or credit
agreement with you or for compensation owed to you hereunder.
(19) For services rendered as Exchange Agent hereunder you
shall be entitled to such compensation and reimbursement of reasonable
out-of-pocket expenses as set forth on Schedule I attached hereto.
(20) You hereby acknowledge receipt of the Exchange Offer
Documents and further acknowledge that you have examined each of them. Any
inconsistency between this Agreement, on the one hand, and the Prospectus, the
Letter of Transmittal and such other forms (as they may be amended from time to
time), on the other hand, shall be resolved in favor of the latter two
documents, except (i) with respect to the duties, liabilities and
indemnification of you as Exchange Agent, which shall be controlled by this
Agreement, and (ii) that the last sentence of the third introductory paragraph
of this Agreement shall control.
(21) The Company agrees to indemnify and hold you harmless in
your capacity as Exchange Agent hereunder against any liability, cost or
expense, including reasonable attorneys' fees and expenses, arising out of or in
connection with your appointment as Exchange Agent and the performance of your
duties hereunder, including, without limitation, any act, omission, delay or
refusal made by you in reasonable reliance upon any signature, endorsement,
assignment, certificate, order, request, notice, instruction or other instrument
or document reasonably believed by you to be valid, genuine and sufficient and
in accepting any tender or effecting any transfer of Old Debentures reasonably
believed by you in good faith to be authorized, and in delaying or refusing in
good faith to accept any tenders or effect any transfers of Old Debentures;
provided, however, that the Company shall not be liable for indemnification
hereunder or otherwise for any loss, liability, cost or expense to the extent
arising out of your negligence, willful misconduct or bad faith. You shall
notify the Company by facsimile or letter or cable or by telex confirmed by
letter, of the written assertion of a claim against you or of any other action
commenced against you, promptly after you shall have received any such written
assertion or shall have been served with a summons in connection therewith, but
the failure to so notify the Company shall not relieve the Company of any
liability under this Agreement except to the extent such failure adversely
affects the Company. The Company shall be entitled to participate at its own
expense in the defense of any such claim or other action, and, if the Company so
elects, the Company shall assume the defense of any suit brought to enforce any
such claim. The Company shall reimburse the Exchange Agent for all counsel fees
in connection with any defense of such claim or other action. In the event that
the Company shall assume the defense of any such suit, the Company shall not be
liable for the fees and expenses of any additional counsel thereafter retained
by you, except as set forth herein. The Exchange Agent shall have the right to
employ separate counsel in any such action and to participate in the defense
thereof at the expense of the Exchange Agent; provided, however, that the fees
and expenses of such separate counsel shall be at the expense of the Company if
(i) the Company has agreed in writing to pay such fees and expenses, (ii) the
Company shall have failed to assume the defense of such action or proceeding and
employ counsel reasonably satisfactory to the Exchange Agent in any such action
or proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the Exchange Agent and the
Company, and the Exchange Agent shall have been advised by counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the Company, in which case, if the Exchange
Agent notifies the Company in writing that it elects to employ separate counsel
at the expense of the Company, the Company shall not have the right to assume
the defense of such action or proceeding on behalf of such Exchange Agent, it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys at any time for the Exchange Agent,
which firm shall be designated in writing by the Exchange Agent. The Company's
obligations under this paragraph 21 shall survive the termination of this
Agreement and the discharge of your obligation hereunder and any other
termination of this Agreement under any federal or state bankruptcy law.
22. You shall arrange to comply with all requirements under
the tax laws of the United States, including those relating to missing Tax
Identification Numbers, and shall prepare and file such tax information forms as
are appropriate or required to be prepared by you with respect to any payments
made by you to any Debenture holder with the Internal Revenue Service. The
Company understands that you are required to deduct 31% on payments to 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.
23. You 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 Old Debentures your check in the amount of all
transfer taxes so payable, and the Company shall reimburse you for the amount of
any and all transfer taxes payable in respect of the exchange of Old Debentures;
provided, however, that you shall reimburse the Company for amounts refunded to
you in respect of your payment of any such transfer taxes, at such time as such
refund is received by you.
24. This Agreement and your appointment as Exchange Agent
hereunder shall be construed and enforced in accordance with the Laws of the
State of New York applicable to agreements made and to be performed entirely
within such state, and without regard to conflicts of law principles, and shall
inure to the benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of each of the parties hereto.
25. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
26. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
27. This Agreement shall not be deemed or construed to be
modified, amended, rescinded, cancelled or waived, in whole or in part, except
by a written instrument signed by a duly authorized representative of the party
to be charged. This Agreement may not be modified orally.
28. Unless otherwise provided herein, all notices, requests
and other communications to any party hereunder shall be in writing (including
facsimile) and shall be given to such party, addressed to it, as its address or
telecopy number set forth below:
If to the Company:
HUBCO, Inc.
0000 XxxXxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: X. Xxxx Van Borkulo-Xxxxx, Esq.
Facsimile: (000)000-0000
If to the Company's Counsel:
Pitney, Xxxxxx, Xxxx & Xxxxx
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(Delivery)
000 Xxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
(Mail)
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Facsimile: (000)000-0000
If to the Exchange Agent:
Marine Midland Bank
000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust
Facsimile: (000)000-0000
29. Unless terminated earlier by the parties hereto, this
Agreement shall terminate 90 days following the Expiration Date. Notwithstanding
the foregoing, Paragraphs 18, 19, 21 and 23 shall survive the termination of
this Agreement. Upon any termination of this Agreement, you shall promptly
deliver to the Company any Old Debenture funds or property (including, without
limitation, Letter of Transmittal and any other documents relating to the
Exchange Offer) then held by you as Exchange Agent under this Agreement.
30. This Agreement shall be binding and effective as of the
date hereof.
Please acknowledge receipt of this Agreement and confirm
the arrangements herein provided by signing and returning the enclosed copy.
HUBCO, INC.
By:
---------------------------------
Name:
Title:
Accepted as of the date
first above written:
MARINE MIDLAND BANK
By:
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Name:
Title:
