EXHIBIT 1
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INDEPENDENT BANK CORP.
(a Massachusetts corporation); and
INDEPENDENT CAPITAL TRUST I
(a Delaware statutory business trust)
1,000,000
__% Cumulative Trust
Preferred Securities
UNDERWRITING AGREEMENT
Dated: April __, 1997
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INDEPENDENT BANK CORP.
(a Massachusetts corporation); and
INDEPENDENT CAPITAL TRUST I
(a Delaware statutory business trust)
1,000,000
__% Cumulative Trust
Preferred Securities
(Liquidation Amount $25 Per Cumulative Preferred Security)
UNDERWRITING AGREEMENT
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April __, 1997
XXXX XXXXX XXXX XXXXXX INCORPORATED
XXXXX XXXXXXX, INC.
c/x Xxxx Xxxxx Xxxx Xxxxxx Incorporated
0000 Xxxxxxxxxxxx Xxxxxx X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxx, Managing Director
Ladies and Gentlemen:
Independent Capital Trust I (the "Trust"), a statutory business trust
organized under the Delaware Business Trust Act, 12 Del. C. Sections 3801 et
seq. (the "Delaware Act"), confirms its agreement with you, Xxxx Xxxxx Xxxx
Xxxxxx Incorporated ("Xxxx Xxxxx") and Xxxxx Xxxxxxx, Inc. (each an
"Underwriter" and together, the "Underwriters," which term shall also include
any underwriter substituted as hereinafter provided in Section 10 hereof),
with respect to the issuance and sale by the Trust, and the purchase by the
Underwriters, acting severally and not jointly, of the respective numbers of
__% Cumulative Trust Preferred Securities (liquidation amount $25 per
preferred security) set forth in Schedule A hereto and the grant by the Trust
to the Underwriters, acting severally and not jointly, of the option
described in Section 2(b) hereof to purchase all or any part of 150,000
additional Preferred Securities to cover
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overallotments, if any. The aforesaid 1,000,000 preferred securities (the
"Initial Preferred Securities") to be purchased by the Underwriters and all
or any part of the 150,000 preferred securities subject to the option
described in Section 2(b) hereof (the "Optional Preferred Securities") are
hereinafter called, collectively, the "Preferred Securities." The Preferred
Securities are more fully described in the Prospectus (as defined below).
The Preferred Securities will be guaranteed by Independent Bank Corp.
(the "Company"), to the extent set forth in the Prospectus (as defined
below), with respect to distributions and amounts payable upon liquidation or
redemption (the "Preferred Securities Guarantee") pursuant to the Preferred
Securities Guarantee Agreement (the "Preferred Securities Guarantee
Agreement") to be dated as of Closing Time (as defined below) executed and
delivered by the Company and The Bank of New York (the "Guarantee Trustee"),
a New York banking corporation, not in its individual capacity but solely as
trustee for the benefit of the holders from time to time of the Preferred
Securities. The Company and the Trust each understand that the Underwriters
propose to make a public offering of the Preferred Securities as soon as they
deem advisable after this Agreement has been executed and delivered, and the
Declaration (as defined herein), the Indenture (as defined herein), and the
Preferred Securities Guarantee Agreement have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). The entire proceeds from
the sale of the Preferred Securities will be combined with the entire
proceeds from the sale by the Trust to the Company of its common securities
(the "Common Securities") guaranteed by the Company, to the extent set forth
in the Prospectus, with respect to distributions and amounts payable upon
liquidation or redemption (the "Common Securities Guarantee" and, together
with the Preferred Securities Guarantee, the "Guarantees") pursuant to the
Common Securities Guarantee Agreement (the "Common Securities Guarantee
Agreement" and, together with the Preferred Securities Guarantee Agreement,
the "Guarantee Agreements"), to be dated as of Closing Time, executed and
delivered by the Company for the benefit of the holders from time to time of
the Common Securities, and will be used by the Trust to purchase the __%
Junior Subordinated Deferrable Interest Debentures due 2027 (the "Junior
Subordinated Debentures") issued by the Company. The Preferred Securities
and the Common Securities will be issued pursuant to the Amended and Restated
Declaration of Trust of the Trust, to be dated as of Closing Time (the
"Declaration"), among the Company, as Sponsor, The Bank of New York, as
property trustee (the "Property Trustee"), The Bank of New York (Delaware),
as Delaware trustee (the "Delaware Trustee"), and Xxxxxxx X. Xxxxxxxxx,
Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxx, as administrative trustees (the
"Administrative Trustees" and together with the Property Trustee and the
Dela-
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xxxx Trustee, the "Trustees"), and the holders from time to time of
undivided beneficial interests in the assets of the Trust. The Junior
Subordinated Debentures will be issued pursuant to an Indenture, to be dated
as of Closing Time (the "Indenture"), between the Company and The Bank of New
York, as debenture trustee (the "Debenture Trustee"). The Preferred
Securities, the Preferred Securities Guarantee and the Junior Subordinated
Debentures are collectively referred to herein as the "Securities." The
Trust and the Company are collectively referred to herein as the "Offerors."
The Indenture, the Declaration and this Agreement are collectively referred
to herein as the "Operative Documents." Capitalized terms used herein
without definition have the respective meanings specified in the Prospectus.
The Company and the Trust have filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(No. _____) covering the registration of the Securities under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus. Promptly after execution and delivery of this Agreement, the
Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations") and paragraph (b)
of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the
Company and the Trust have elected to rely upon Rule 434 ("Rule 434") of the
1933 Act Regulations, prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). The information
included in such prospectus or in such Term Sheet, as the case may be, that
was omitted from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the time it
became effective (a) pursuant to paragraph (b) of Rule 430A is referred to as
"Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information that was
used after such effectiveness and prior to the execution and delivery of this
Agreement, is herein called a "preliminary prospectus." Such registration
statement, including the exhibits thereto and schedules thereto, if any, at
the time it became effective and including the rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement" and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus in the
form first furnished to the Underwriters for use in connection with the
offering of the Preferred Securities is herein called
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the "Prospectus." If Rule 434 is relied on, the term "Prospectus" shall
refer to the preliminary prospectus dated April __, 1997 together with the
Term Sheet and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant to
each Underwriter as of the date hereof, as of the Closing Time referred to in
Section 2(c) hereof and as of each Date of Delivery (if any) referred to in
Section 2(b) hereof, and agree with each Underwriter as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any Optional Preferred
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement, if any, and any
amendments and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations
and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, at the time the Prospectus or any such
amendment or supplement was issued and at the Closing Time (and, if any
Optional Preferred Securities are purchased, at the Date of Delivery),
included or will include an untrue statement of a material fact or omitted
or will omit to state a material fact necessary in order to make the
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statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with
the requirements of Rule 434 and the Prospectus shall not be "materially
different," as such term is used in Rule 434, from the prospectus included
in the Registration Statement at the time it became effective. The
representations and warranties in this subsection shall not apply (A) to
statements in or omissions from the Registration Statement or Prospectus
made in reliance upon and in conformity with information furnished to the
Trust or the Company in writing by any Underwriter through Xxxx Xxxxx
expressly for use in the Registration Statement or Prospectus and (B) that
part of the Registration Statement which shall constitute the Statements of
Eligibility (Forms T-1) under the 1939 Act.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and, if
applicable, each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was substantively
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements included or incorporated by reference in the
Prospectus are independent public accountants within the meaning of the
1933 Act and the rules and regulations of the Commission under the 1933 Act
Regulations.
(iii) FINANCIAL STATEMENTS. The consolidated historical
financial statements, together with the related schedules and notes,
included in the Prospectus present fairly, in all material respects, the
consolidated financial position of the Company and its consolidated
subsidiaries at the dates indicated, and the statements of income, changes
in stockholders' equity and cash flows of the Company and its consolidated
subsidiaries for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") in the United States applied on a consistent basis throughout the
periods involved, except as disclosed in the notes to such financial
statements; the supporting schedules, if any, included in the Prospectus
present fairly, in all material respects, the information required to be
stated therein; and the
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summary financial data included in the Prospectus present fairly, in all
material respects, the information shown therein and have been compiled
on a basis consistent with that of the audited financial statements
included in the Prospectus.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Prospectus, except
as otherwise stated therein or contemplated thereby, there has not been (A)
any material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects of the Trust, or of
the Company and its subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business (a "Material Adverse
Effect"), (B) any transaction entered into by the Trust, the Company or any
of its subsidiaries, other than in the ordinary course of business, that is
material to the Trust, or to the Company and its subsidiaries, considered
as one enterprise, or (C) any dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock,
other than regular quarterly dividends on the Company's common stock.
(v) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Massachusetts and has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and perform its
obligations under each of the Operative Documents to which it is a party;
the Company is duly registered as a bank holding company under the Bank
Holding Company Act of 1956, as amended.
(vi) GOOD STANDING OF THE BANK. Rockland Trust Company (the
"Bank") has been duly organized and is validly existing as a trust company
in good standing under the laws of the State of Massachusetts and has full
power and authority under such laws to own, lease and operate its
properties and to conduct its business as now being conducted and as
described in the Prospectus.
(vii) NO OTHER SIGNIFICANT SUBSIDIARIES. There are no
"significant subsidiaries" of the Company (as such term is defined in Rule
1-02 of Regulation S-X) other than the Bank. The subsidiaries of the
Company other than the Bank, considered in the aggregate as a single
subsidiary, do not constitute a "significant subsidiary" as defined in Rule
1-02 of Regulation S-X.
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(viii) FOREIGN QUALIFICATIONS. The Company and the Bank are each
duly qualified as a foreign corporation to transact business and are each
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify or be in good
standing would not result in a Material Adverse Effect (as defined in
Section 1(a)(iv) hereof).
(ix) CAPITAL STOCK DULY AUTHORIZED AND VALIDLY ISSUED. All of
the issued and outstanding capital stock of the Company has been duly
authorized and validly issued and is fully paid and nonassessable and none
of the capital stock of the Company was issued in violation of the
preemptive rights of any shareholder of the Company; all of the issued and
outstanding capital stock of the Bank has been duly authorized and validly
issued, is fully paid and nonassessable and is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equitable right; and none of
such outstanding shares of capital stock of the Bank was issued in
violation of any preemptive or similar rights arising by operation of law,
or under the charter or by-laws of the Company or the Bank or under any
agreement to which the Company or the Bank is a party.
(x) CAPITALIZATION. The authorized, issued and outstanding
capital stock of the Company as of March 31, 1997 is as set forth in the
Prospectus under "Capitalization," and there have not been any subsequent
issuances of capital stock of the Company except for subsequent issuances,
if any, pursuant to any dividend reinvestment plan, reservations,
agreements, conversions, stock dividends or employee or director benefit
plans.
(xi) GOOD STANDING OF THE TRUST. The Trust has been duly created
and is validly existing in good standing as a business trust under the
Delaware Act with the power and authority to own property and to conduct
its business as described in the Prospectus and to enter into and perform
its obligations under the Operative Documents, as applicable, and the
Preferred Securities; the Trust is not a party to or otherwise bound by any
material agreement other than those described in the Prospectus; and the
Trust is, and will be, under current law, classified for United States
federal income tax purposes as a grantor trust and not as an association
taxable as a corporation.
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(xii) AUTHORIZATION OF COMMON SECURITIES. The Common Securities
have been duly authorized for issuance by the Trust pursuant to the
Declaration and, when certificates therefore have been issued and executed
in accordance with the Declaration and delivered by the Trust to the
Corporation against payment therefor in accordance with the Common
Securities Subscription Agreement, will be validly issued and fully paid
and nonassessable undivided beneficial ownership interests in the assets of
the Trust. The issuance of the Common Securities is not subject to
preemptive or other similar rights; and at the Closing Time all of the
issued and outstanding Common Securities of the Trust will be directly
owned by the Company free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equitable right.
(xiii) AUTHORIZATION OF PREFERRED SECURITIES. At the Closing
Time, the Preferred Securities will have been duly authorized for issuance
by the Trust pursuant to the Declaration, and the Preferred Securities,
when certificates therefore have been issued, executed and authenticated in
accordance with the Declaration and delivered against payment therefor as
provided herein, will be validly issued and fully paid and nonassessable
undivided beneficial ownership interests in the assets of the Trust and
will conform to the description thereof in the Prospectus. The issuance of
the Preferred Securities will not be subject to preemptive or other similar
rights.
(xiv) AUTHORIZATION OF AGREEMENT. This Agreement has been duly
authorized, executed and delivered by the Offerors.
(xv) AUTHORIZATION OF DECLARATION. The Declaration has been
qualified under the 1939 Act and has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and the Trustees, and assuming due authorization, execution and
delivery of the Declaration by the Trustees, the Declaration will, at the
Closing Time, be a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except to the extent that
enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws now
or hereafter in effect relating to creditors' rights generally, (b) general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity) and (c) any public policy underlying
applicable federal or state laws (collectively, the "Enforceability
Exceptions").
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(xvi) AUTHORIZATION OF GUARANTEES. Each of the Guarantees has
been qualified under the 1939 Act and has been duly authorized by the
Company; at the Closing Time, each of the Guarantees will have been duly
executed and delivered by the Company and will constitute a valid and
binding agreement of the Company, enforceable against the Company in
accordance with its terms, except to the extent that enforceability may be
limited by the Enforceability Exceptions; and the Preferred Securities
Guarantee will conform in all material respects to the description thereof
in the Prospectus.
(xvii) AUTHORIZATION OF INDENTURE. The Indenture has been
qualified under the 1939 Act and has been duly authorized by the Company
and, at the Closing Time, will have been duly executed and delivered by the
Company and will constitute a valid, legal and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except to the extent that enforceability may be limited by the
Enforceability Exceptions.
(xviii) AUTHORIZATION OF DEBENTURES. The Junior Subordinated
Debentures have been duly authorized by the Company; at the Closing Time,
the Junior Subordinated Debentures, will have been duly executed by the
Company and, when authenticated in the manner provided for in the Indenture
and delivered by the Company to the Trust against payment therefor as
described in the Prospectus, will constitute valid and binding obligations
of the Company, enforceable against the Company in accordance with their
terms, except to the extent that enforceability may be limited by the
Enforceability Exceptions; and the Junior Subordinated Debentures will be
in the form contemplated by, and entitled to the benefits of, the Indenture
and will conform in all material respects to the descriptions thereof in
the Prospectus.
(xix) AUTHORIZATION OF TRUSTEES. Each of the Administrative
Trustees of the Trust is an officer of the Company and has been duly
authorized by the Company to execute and deliver the Declaration.
(xx) TRUST AND CORPORATION NOT INVESTMENT COMPANY. Neither the
Trust nor the Company is, and immediately following consummation of the
transactions contemplated hereby and the application of the net proceeds as
described in the Prospectus neither the Trust nor the Company will be, an
"investment company" or a company "controlled" by an
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"investment company" which is required to be registered under the
Investment Company Act of 1940, as amended (the "1940 Act").
(xxi) ACCURACY OF DISCLOSURE. The Operative Documents conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(xxii) ABSENCE OF DEFAULTS AND CONFLICTS. The Trust is not in
violation of the trust certificate of the Trust filed with the State of
Delaware (the "Trust Certificate") or the Declaration, and neither the
Company nor the Bank is in violation of its charter or by-laws; none of the
Trust, the Company or the Bank is in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by
which it or any of them may be bound, or to which any of its property or
assets is subject (collectively, "Agreements and Instruments") except for
such defaults under Agreements and Instruments that would not result in a
Material Adverse Effect; and the execution, delivery and performance of the
Operative Documents by the Trust or the Company, as the case may be, the
issuance, sale and delivery of the Preferred Securities, the Junior
Subordinated Debentures, the Preferred Securities Guarantee and the Common
Securities Guarantee, the consummation of the transactions contemplated by
the Operative Documents and compliance by the Offerors with the terms of
the Operative Documents to which they are a party have been duly authorized
by all necessary corporate action on the part of the Company and, at the
Closing Time, will have been duly authorized by all necessary action on the
part of the Trust and do not and will not, whether with or without the
giving of notice or passage of time or both, violate, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any security interest,
mortgage, pledge, lien, charge, encumbrance, claim or equitable right upon
any property or assets of the Trust, the Company or any of its subsidiaries
pursuant to any of the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action result
in any violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or the Declaration or the Trust Certificate, or
violation by the Company or any of its subsidiaries of any applicable law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government authority,
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agency or instrumentality or court, domestic or foreign, including,
without limitation, the Board of Governors of the Federal
Reserve System, the Federal Deposit Insurance Corporation
and the Commissioner of Banks of the Commonwealth of Massachusetts, having
jurisdiction over the Trust, the Company, the Company's subsidiaries, or
their respective properties (collectively, "Governmental Entities"). As
used herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Trust, the Company or any of its subsidiaries.
(xxiii) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent, which may reasonably be expected to
result in a Material Adverse Effect.
(xxiv) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any Governmental
Entity now pending, or, to the knowledge of the Trust or the Company,
threatened, against or affecting the Trust or the Company or any of its
subsidiaries, which is not disclosed in the Prospectus and which in the
reasonable judgment of the Trust or the Company might result in a Material
Adverse Effect, or which in the reasonable judgment of the Company might
materially and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated by the Operative Documents or
the performance by the Trust or the Company of its obligations hereunder or
thereunder.
(xxv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any Governmental Entity, other than those that
have been made or obtained, is necessary or required for the performance by
the Trust or the Company of their obligations under the Operative
Documents, as applicable, or the consummation by the Trust and the Company
of the transactions contemplated by the Operative Documents.
(xxvi) POSSESSION OF LICENSES AND PERMITS. The Trust, the
Company and the Bank possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses") issued by
the appropriate Governmental Entities necessary to conduct the business
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now operated by them; the Trust, the Company and the Bank are in compliance
with the terms and conditions of all such Governmental Licenses, except
where the failure so to comply would not, singly or in the aggregate have a
Material Adverse Effect; all of the Governmental Licenses are valid and in
full force and effect, except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force
and effect would not have a Material Adverse Effect; and neither the Trust,
the Company nor the Bank has received any notice of proceedings relating to
the revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, in the reasonable judgment of the Company, is
likely to result in a Material Adverse Effect.
(xxvii) NO OTHER AGREEMENTS. Other than such agreements,
contracts and other documents as are described in the Prospectus or
otherwise filed as exhibits to the Company's annual report on Form 10-K or
quarterly reports on Form 10-Q or current reports on Form 8-K incorporated
by reference in the Prospectus, there are no agreements, contracts or
documents of a character described in Item 601 of Regulation S-K of the
Commission to which the Company or the Bank is a party.
(xxviii) TITLE TO PROPERTY. The Company and its subsidiaries
have good and marketable title to all of their respective real and personal
properties, in each case free and clear of all liens, encumbrances and
defects, except as stated in the Prospectus, or such as do not materially
affect the value of such properties in the aggregate to the Company and its
subsidiaries considered as one enterprise; and all of the leases and
subleases material to the business of the Trust, and to the Company and its
subsidiaries, considered as one enterprise, and under which either of the
Offerors or any of such subsidiaries holds properties described in the
Prospectus, are in full force and effect and neither the Offerors nor such
subsidiaries have any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of the Offerors or such
subsidiaries under any of the leases or subleases mentioned above, or
affecting or questioning the rights of such entity to the continued
possession of the leased or subleased premises under any such lease or
sublease, which individually or in the aggregate might result in a Material
Adverse Effect.
(xxix) REGULATION M. The Company has not taken and will not
take, directly or indirectly, any action designed to, or that might be
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reasonably expected to, cause or result in stabilization or manipulation of
the price of the Preferred Securities.
(b) Any certificate signed by any Trustee of the Trust or any duly
authorized officer of the Company or any of its subsidiaries and delivered to
you or to counsel for the Underwriters shall be deemed a representation and
warranty by the Trust or the Company, as the case may be, to the Underwriters
as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a) INITIAL PREFERRED SECURITIES. On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Trust agrees to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Trust, at the purchase price of $25 per Initial
Preferred Security, the number of Initial Preferred Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number
of Initial Preferred Securities which such Underwriter may become obligated
to purchase pursuant to the provisions of Section 10 hereof, subject, in each
case, to such adjustments among the Underwriters as they in their sole
discretion shall make to eliminate any sales or purchases of fractional
securities. As compensation to the Underwriters for their commitments
hereunder and in view of the fact that the proceeds of the sale of the
Preferred Securities will be used to purchase the Junior Subordinated
Debentures, the Company hereby agrees to pay at the Closing Time and at any
Date of Delivery to the Underwriters a commission of $______ per Preferred
Security purchased by the Underwriters.
(b) OPTIONAL PREFERRED SECURITIES. In addition, on the basis of
the representations and warranties herein contained and subject to the terms
and conditions herein set forth, the Trust hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to 150,000 Optional
Preferred Securities at the price per share set forth in the immediately
preceding paragraph. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial Preferred Securities upon
notice by the Underwriters to the Trust setting forth the number of Optional
Preferred Securities as to which the Underwriters are then exercising the
option and the time and date of payment and delivery for such Optional
Preferred Securities. Any such time and date of delivery (a "Date of
Delivery") shall be determined by the Underwriters, but
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shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time. If the option is
exercised as to all or any portion of the Optional Preferred Securities, each
of the Underwriters, acting severally and not jointly, will purchase and the
Trust agrees to sell to the Underwriters that proportion of the total number
of Optional Preferred Securities to be sold by the Trust which the number of
Initial Preferred Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Preferred Securities,
subject in each case to such adjustments as the Underwriters in their
discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for the Initial Preferred Securities shall be made at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in New York, New York, or
at such other place as shall be agreed upon by the Underwriters and the
Offerors, at 9:00 a.m., New York, New York time, on May__, 1997 (unless
postponed in accordance with the provisions of Section 10 hereof), or such
other time not later than ten (10) business days after such date as shall be
agreed upon by the Underwriters and the Offerors (such time and date of
payment and delivery being herein called the "Closing Time").
In addition, in the event that any or all of the Optional Preferred
Securities are purchased by the Underwriters, payment of the purchase price
for, and delivery of certificates for, such Optional Preferred Securities
shall be made at the above-mentioned offices, or at such other place as shall
be agreed upon by the Underwriters and the Offerors on each Date of Delivery
as specified in the notice from the Underwriters to the Offerors.
Payment shall be made to the Trust by wire transfer of immediately
available funds, to the order of the Trust, to a bank designated by the
Company, against delivery to the Underwriters of certificates for the
Preferred Securities to be purchased by them. It is understood that each
Underwriter has authorized Xxxx Xxxxx, for its account, to accept delivery
of, receipt for, and make payment of the Purchase Price for, the Initial
Preferred Securities and the Optional Preferred Securities, if any, which it
has agreed to purchase. Xxxx Xxxxx, individually and not as representative
of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Preferred Securities or the Optional Preferred
Securities, if any, to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
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(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial
Preferred Securities and the Optional Preferred Securities, if any, shall be
in such denominations and registered in such names as the Underwriters may
request in writing at least one business day before the Closing Time or the
relevant Date of Delivery, as the case may be. All such certificates shall
be made available for examination and packaging by the Underwriters in New
York, New York not later than 10:00 a.m. on the last business day prior to
the Closing Time or the relevant Date of Delivery, as the case may be.
As compensation to the Underwriters for their commitments hereunder
and in view of the fact that the proceeds of the sale of the Preferred
Securities will be used to purchase the Junior Subordinated Debentures of the
Company, the Company hereby agrees to pay at the Closing Time or each Date of
Delivery, as the case may be, to the Underwriters in immediately available
funds the commission payable at such time under this Section 2 to Xxxx Xxxxx
on behalf of the Underwriters by wire transfer of immediately available funds.
SECTION 3. COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company and the Trust, subject to Section 3(b) hereof, will comply with
the requirements of Rule 430A or Rule 434, as applicable, and will notify the
Underwriters immediately, and confirm the notice in writing, (i) when any
post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus, or
of the suspension of the qualification of the Preferred Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of
any proceedings for any of such purposes. The Company and the Trust will
promptly effect the filings necessary pursuant to Rule 424(b) and will take
such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such prospectus. The Company and the Trust will make every
16
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) FILING OF AMENDMENTS. The Company and the Trust will give the
underwriters notice of their intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or to
the Prospectus, whether pursuant to the 1933 Act or otherwise, will furnish
the Underwriters with copies of any such documents a reasonable amount of
time prior to such proposed filing or use, as the case may be, and will not
file or use any such document to which the Underwriters or counsel for the
Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Underwriters and counsel for the Underwriters, without
charge, two signed copies of the Registration Statement as originally filed
and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Underwriters, without
charge, a conformed copy of the Registration Statement as originally filed
and of each amendment thereto (without exhibits) for each of the
Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwrites will be substantively identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Offerors, as promptly as
possible, will furnish to the Underwriters, without charge, such number of
copies of the preliminary prospectus, the Final Prospectus and any amendments
and supplements thereto and documents incorporated by reference therein as
the Underwriters may reasonably request, and the Company and the Trust hereby
consent to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each Underwriter, without charge, during the
period when the Prospectus is required to be delivered under the 1933 Act or
the Securities Exchange Act of 1934 (the "1934 Act"), such number of copies
of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto
furnished to the Underwriters will be substantively identical to the
electronically transmitted copies thereof filed with the Commission pursuant
to XXXXX, except to the extent permitted by Regulation S-T.
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(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company and the
Trust will comply with the 1933 Act and the 1933 Act Regulations so as to
permit the completion of the distribution of the Securities as contemplated
in this Agreement and in the Prospectus. If at any time when a prospectus is
required by the 1933 act to be delivered in connection with sales of the
Preferred Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement or amend
or supplement the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser, or
if it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company and the Trust will promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements, and
the Company will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company and the Trust will each
use its best efforts, in cooperation with the Underwriters, to qualify the
Preferred Securities for offering and sale under the applicable securities
laws of such states and other jurisdictions as the Underwriters may
reasonably designate and to maintain such qualifications in effect for a
period of not less than one year from the later of the effective date of the
Registration Statement and any Rule 462(b) Registration Statement; provided,
however, that neither the Company nor the Trust shall be obligated to file
any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In
each jurisdiction in which the Preferred Securities have been so qualified,
the Company and the Trust will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
18
(g) RULE 158. The Company will timely file such reports pursuant
to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of
Section 11(a) of the 1933 Act.
(h) NOTICE AND EFFECT OF MATERIAL EVENTS. The Offerors will
immediately notify the Underwriters, and confirm such notice in writing, of
(x) any filing made by the Offerors of information relating to the offering
of the Preferred Securities with any securities exchange or any other
regulatory body in the United States, and (y) prior to the completion of the
distribution of the Preferred Securities by the Underwriters as evidenced by
a notice in writing from the Underwriters to the Offerors, any Material
Adverse Effect, which (i) makes any statement in the Prospectus false or
misleading or (ii) is not disclosed in the Prospectus. In such event or if
during such time any event shall occur as a result of which it is necessary,
in the reasonable opinion of the Company, its counsel or the Underwriters or
counsel to the Underwriters, to amend or supplement the Final Prospectus in
order that the Final Prospectus not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances then
existing, the Company will forthwith amend or supplement the Final Prospectus
by preparing and furnishing to the Underwriters an amendment or amendments
of, or a supplement or supplements to, the Final Prospectus (in form and
substance satisfactory in the reasonable opinion of counsel for the
Underwriters) so that, as so amended or supplemented, the Final Prospectus
will not include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a Subsequent
Purchaser, not misleading.
(i) RATING. The Offerors shall take all reasonable action
necessary to enable Duff & Xxxxxx to provide its credit rating of the
Preferred Securities.
(j) DTC. The Offerors will cooperate with the Underwriters and use
their best efforts to permit the Preferred Securities to be eligible for
clearance and settlement through the facilities of DTC.
(k) USE OF PROCEEDS. The Trust will use the proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds." The Company will use the net proceeds received by it
19
from the sale of the Junior Subordinated Debentures, in the manners
specified in the Prospectus under "Use of Proceeds."
(l) LISTING. The Company will use its best efforts to effect the
listing of the Preferred Securities on the National Association of Securities
Dealers Automated Quotation System ("NASDAQ"). If the Junior Subordinated
Debentures are distributed on the occurrence of a Tax Event (as defined in
the Prospectus), the Company will use its best efforts to effect the listing
of the Junior Subordinated Debentures on NASDAQ on such other exchange where
the Preferred Securities are listed.
(m) RESTRICTION ON SALE OF SECURITIES. During a period of 90 days
from the date of the Prospectus, neither the Company nor the Trust will,
without the prior written consent of Xxxx Xxxxx, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any Preferred
Securities or Junior Subordinated Debentures (or any equity or debt
securities substantially similar to the Preferred Securities or Junior
Subordinated Debentures, respectively) or any capital stock of the Company,
or any securities convertible into or exercisable or exchangeable for
Preferred Securities or Junior Subordinated Debentures (or any equity or debt
securities substantially similar to the Preferred Securities or Junior
Subordinated Debenture, respectively) or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into
any swap or any other agreement or any transaction that transfers, in whole
or in part, directly or indirectly, the economic consequence of ownership of
Preferred Securities or Junior Subordinated Debentures (or any equity or debt
securities substantially similar to the Preferred Securities or Junior
Subordinated Debentures, respectively) or any capital stock of the Company,
whether any such swap or transaction described in clause (i) or (ii) above is
to be settled by delivery of Preferred Securities or Junior Subordinated
Debentures (or any equity or debt securities substantially similar to the
Preferred Securities or Junior Subordinated Debentures, respectively) or such
other securities, in cash or otherwise. The foregoing sentence shall not
apply to the Preferred Securities or Junior Subordinated Debentures to be
sold hereunder.
(n) REPORTING REQUIREMENTS. The Company and the Trust, during the
period when the Prospectus is required to be delivered under the 1933 Act or
the 1934 Act, will file all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time
periods required by the 1934 Act and the 1934 Act Regulations.
20
(o) FURNISH REPORTS. For and during the period ending three years
after the effective date of the Registration Statement, the Company will
furnish to the Underwriters copies of all reports and other communications
(financial or otherwise) furnished by the Company to its securityholders
generally and copies of any reports or financial statements furnished to or
filed by the Company with the Commission or any national securities exchange
on which any class of securities of the Company may be listed.
SECTION 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Company, as borrower under the Junior
Subordinated Debentures, will pay all expenses incident to the performance of
its, and the Trust's, obligations under this Agreement, including (i) the
preparation, printing and any filing of the Registration Statement (including
financial statements and any schedules or exhibits and any document
incorporated therein by reference) and of each amendment or supplement
thereto, (ii) the preparation, printing and delivery to the Underwriters of
this Agreement, the Operative Documents and such other documents as may be
required in connection with the offering, purchase, sale and delivery of the
Preferred Securities, (iii) the preparation, issuance and delivery of the
certificates for the Preferred Securities to the Underwriters, including any
stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance, or delivery of the Preferred Securities to the Underwriters,
(iv) the fees and disbursements of the Company's counsel, accountants and
other advisors, (v) rating agency fees, (vi) the fees and expenses of any
trustee appointed under any of the Operative Documents, including the fees
and disbursements of counsel for such trustees in connection with the
Operative Documents, (vii) the fees and disbursements up to $ of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters,
(viii) the qualification of the Preferred Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, if any, (ix) the printing and delivery to
the Underwriters of copies of each preliminary prospectus, any Term Sheets
and of the Prospectus and any amendments or supplements thereto, if any, (x)
the preparation, printing and delivery supplement thereto, if any, (xi) the
fees and expenses of any transfer agent or registrar for the Preferred
Securities, (xii) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review
by the National Association of Securities Dealers, Inc. (the "NASD") of the
terms of the sale of the Preferred Securities, (xiii) the fees and expenses
incurred in connection with the listing of the Preferred Securities and, if
21
applicable, the Junior Subordinated Debentures on NASDAQ, (xiv) the fees and
expenses of the Indenture Trustee, including the fees and disbursements of
counsel for the Indenture Trustee in connection with the Indenture and the
Junior Subordinated Debentures, (xv) the fees and expenses of the Delaware
Trustee and the Property Trustee, including the fees and disbursements of
counsel for the Delaware Trustee and Property Trustee in connection with the
Declaration and the Certificate of Trust, (xvi) the fees and expenses of the
Guarantee Trustee, (xvii) any fees and expenses in connection with the rating
of the Preferred Securities and the Junior Subordinated Debentures and
(xviii) the cost and charges of qualifying the Preferred Securities with the
Depositary Trust Company.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 10 hereof, the Company shall reimburse the Underwriters for all of their
reasonable, actual, accountable out-of-pocket expenses, including the reasonable
fees and disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Offerors contained in Section 1 hereof
or in certificates of any Trustee of the Trust, officer of the Corporation or
any of its subsidiaries delivered pursuant to the provisions hereof, to the
performance by the Offerors of their obligations hereunder, and to the
following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, has become
effective and at Closing Time no stop order suspending the effectiveness of
the Registration Statement shall have been issued under the 1933 Act or
proceedings therefor initiated or threatened by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. A prospectus containing the Rule 430A Information shall have
been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430(a) or, if
the Company has elected to rely upon Rule 434, a Term Sheet shall have been
filed with the Commission in accordance with Rule 424(b)).
22
(b) OPINION OF OUTSIDE COUNSEL FOR OFFERORS. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., counsel for the
Offerors, substantially in the form of Exhibit A attached hereto. Such
counsel may state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of
Trustees of the Trust, officers of the Corporation or any designated
subsidiary and certificates of public officials. Such counsel may also state
that, insofar as such opinion involves matters of Massachusetts law, they
have relied, to the extent they deem proper, on local Massachusetts counsel
acceptable to the Underwriters.
(c) OPINION OF SPECIAL DELAWARE COUNSEL FOR OFFERORS. At the
Closing Time, the Underwriters shall have received the favorable opinion,
dated as of the Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Delaware), special Delaware counsel for the Offerors, in form and substance
reasonably satisfactory to the Underwriters.
(d) OPINION OF COUNSEL FOR THE BANK OF NEW YORK. At the Closing
Time, the Underwriters shall have received the favorable opinion, dated as of
the Closing Time, of Xxxxx, Xxxxxx & Xxxxxx, LLP, counsel to The Bank of New
York, as Property Trustee under the Declaration, Guarantee Trustee under the
Preferred Securities Guarantee Agreement and Debenture Trustee under the
Indenture, in form and substance reasonably satisfactory to counsel for the
Underwriters.
(e) OPINION OF SPECIAL TAX COUNSEL FOR THE OFFERORS. At the
Closing Time, the Underwriters shall have received an opinion, dated as of
the Closing Time, of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., special tax
counsel to the Offerors, substantially to the effect that (i) the Junior
Subordinated Debentures will be classified as indebtedness for United States
federal income tax purposes, (ii) the Trust will be classified as a grantor
trust for United States federal income tax purposes, and (iii) the statements
set forth in the Prospectus under the caption "Certain Federal Income Tax
Consequences" constitute, in all material respects, a fair and accurate
summary of the United stated federal income tax consequences of the ownership
and disposition of the Preferred Securities under current law. Such opinion
may be conditioned on, among other things, the initial and continuing
accuracy of the facts, financial and other information, covenants and
representations set forth in certificates of officers of the Corporation and
other documents deemed necessary for such opinion.
23
(f) OPINION OF COUNSEL FOR THE UNDERWRITERS. At the Closing Time,
the Underwriters shall have received the favorable opinion, dated as of the
Closing Time, of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, with respect to the Preferred Securities, the Operative
Documents, the Prospectus and other related matters as the Underwriters may
require. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of Trustees of the Trust, officers of the Company or the Bank
and certificates of public officials.
(g) CERTIFICATES. At the Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectus, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Trust, or the Company and its subsidiaries, considered as
one enterprise, whether or not arising in the ordinary course of business,
and the Underwriters shall have received a certificate of the Chairman, the
Chief Executive Officer, the President or any Vice President of the
Corporation and of the Chief Financial Officer of the Corporation and a
certificate of an Administrative Trustee of the Trust, dated as of the
Closing Time, to the effect that, to his or her knowledge (i) there has been
no such material adverse change (ii) the representations and warranties in
Section 1 hereof were true and correct when made and are true and correct
with the same force and effect as though expressly made at and as of the
Closing Time, and (iii) the Offerors have complied with all agreements and
satisfied all conditions on their part to be performed or satisfied at or
prior to the Closing Time.
(h) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of
this Agreement, the Initial Purchaser shall have received from Xxxxxx
Xxxxxxxx, LLP (the "Accountants") a letter dated such date, in form and
substance satisfactory to the Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to Underwriters with respect to the financial statements and certain
financial information included or incorporated by reference in the Prospectus.
(i) BRING-DOWN COMFORT LETTER. At the Closing Time, the
Underwriters shall have received from the Accountants a letter dated as of
the Closing Time, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (h) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to the Closing Time.
24
(j) MAINTENANCE OF RATING. At the Closing Time, the Preferred
Securities shall be rated at least BB- by Duff & Xxxxxx, and the Trust shall
have delivered to the Underwriters a letter dated the Closing Time, from such
rating agency, or other evidence satisfactory to the Underwriters, confirming
that the Preferred Securities have such a rating; and between the date of this
Agreement and the Closing Time, there shall not have occurred a downgrading in
such rating assigned to the Preferred Securities or the rating assigned to any
of the Company's other debt securities by any nationally recognized statistical
rating organization, and no such organization shall have publicly announced that
it has under surveillance or review its rating of any of the Preferred
Securities or any of the Company's other debt securities.
(k) APPROVAL OF LISTING. At the Closing Time, the Preferred
Securities shall have been approved for listing on NASDAQ.
(l) CONDITIONS TO PURCHASE OF OPTIONAL PREFERRED SECURITIES. In
the event that the Underwriters exercise their option provided in Section
2(b) hereof to purchase all or any portion of the Optional Preferred
Securities, the representations and warranties of the Company and the Trust
contained herein and the statements in any certificates furnished by the
Company and any Trustee hereunder shall be true and correct as of each Date
of Delivery and, at the relevant Date of Delivery, the Underwriters shall
have received:
(i) OPINION OF OUTSIDE COUNSEL FOR OFFERORS. The favorable
opinion of Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., counsel for the Offerors,
in form and substance satisfactory to counsel for the Underwriters, dated
such Date of Delivery, relating to the Optional Preferred Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(b) hereof.
(ii) OPINION OF SPECIAL DELAWARE COUNSEL FOR OFFERORS. The
favorable opinion, dated such Date of Delivery, of Skadden, Arps, Slate,
Xxxxxxx & Xxxx (Delaware), special Delaware counsel for the Offerors, in
form and substance satisfactory to counsel for the Underwriters, relating
to the Optional Preferred Securities to be purchased on such Date of
Delivery and otherwise to the same effects as the opinion required by
Section 5(c) hereof.
(iii) OPINION OF COUNSEL FOR THE BANK OF NEW YORK. The favorable
opinion, dated such Date of Delivery, of Xxxxx, Xxxxxx & Xxxxxx, LLP,
counsel to The Bank of New York, as Property Trustee
25
under the Declaration, Guarantee Trustee under the Preferred Securities
Guarantee Agreement and Debenture Trustee under the Indenture, in
form and substance satisfactory to counsel for the Underwriters,
relating to the Optional Preferred Securities to be Purchased
on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(d) hereof.
(iv) OPINION OF SPECIAL TAX COUNSEL FOR THE OFFERORS. The
favorable opinion, dated such Date of Delivery, of Elias, Matz, Xxxxxxx &
Xxxxxxx L.L.P., special tax counsel to the Offerors, in form and substance
satisfactory to counsel for the Underwriters, relating to the Optional
Preferred Securities to be purchased on such Date of Delivery and otherwise
to the same effect as the opinion required by Section 5(e) hereof.
(v) OPINION OF COUNSEL FOR THE UNDERWRITERS. The favorable
opinion, dated such Date of Delivery, of Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP, counsel for the Underwriters, relating to the Optional Preferred
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(f) hereof.
(vi) CERTIFICATES. Certificates, dated such Date of Delivery, of
the Chairman, the Chief Executive Officer, the President or any Vice
President of the Company and of the Chief Financial Officer of the Company
and a certificate of an Administrative Trustee of the Trust, confirming
that the certificates delivered at the Closing Time pursuant to Section
5(g) hereof remain true and correct as of such Date of Delivery.
(vii) BRING-DOWN COMFORT LETTER. A letter from the Accountants
dated such Date of Delivery, in form and substance satisfactory to the
Underwriters, substantially in the same form and substance as the letter
furnished to the Underwriters pursuant to Section 5(i) hereof, except that
the specified date referred to shall be a date not more than five days
prior to such Date of Delivery.
(m) ADDITIONAL DOCUMENTS. At the Closing Time, counsel for the
Underwriters shall have been furnished such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Preferred Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties of
the Offerors, or the fulfillment of any of the conditions, herein contained;
and all proceedings
26
taken by the Offerors in connection with the issuance and sale of the
Preferred Securities as herein contemplated shall be satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
(n) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled,
this Agreement may be terminated by the Underwriters by notice to the
Offerors at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided
in Section 4 hereof and except that Sections 7 and 8 hereof shall survive any
such termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Offerors agree to jointly
and severally indemnify and hold harmless (x) each Underwriter, (y) each
person, if any, who controls any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act (each such person, a "Control
Person") and (z) the respective partners, directors, officers, employees and
agents of each Underwriter or any Control Person as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment or supplement thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or the omission or
alleged omission therefrom of a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or arising out of
any untrue statement of a material fact contained in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission; provided that (subject to
27
Section 6(d) below) any such settlement is effected with the written
consent of the Offerors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Underwriters), reasonably incurred in investigating, preparing for or
defending against any litigation or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission or any such
alleged untrue statement or omission to the extent that any such expense is
not paid under (i) or (ii) above; provided, however, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense
to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Offerors by any Underwriter through
Xxxx Xxxxx expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information an the Rule 434
Information, if applicable, or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto). The foregoing indemnity with
respect to any untrue statement or alleged untrue statement contained in or
omission or alleged omission from a preliminary prospectus shall not inure
to the benefit of the Underwriter (or any person controlling such
Underwriter) from whom the person asserting any loss, liability, claim,
damage or expense purchases any of the Preferred Securities which are the
subject thereof if the Company shall sustain the burden of proving that
such person was not sent or given a copy of the Prospectus (or the
Prospectus as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person and the untrue
statement contained in or omission from such preliminary prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented)
and the Company has previously furnished copies thereof to such
Underwriter.
(b) INDEMNIFICATION OF OFFERORS, DIRECTORS, OFFICERS AND EMPLOYEES.
Each Underwriter severally agrees to indemnify and hold harmless the Company,
its directors, officers and employees, the Trust, each of the Trustees and each
person, if any, who controls the Trust, any of the Trustees or the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 6(a) above, as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including
28
the Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information
furnished to the Offerors by such Underwriter through Xxxx Xxxxx expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof, and in any event shall not
relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. An indemnifying party may participate at its own
expense in the defense of any such action or, if it so elects within a
reasonable time after receipt of such notice, to assume the defense of any
suit brought to enforce any such claim, but if it so elects to assume the
defense, such defense shall be conducted by counsel chosen by it and approved
by the indemnified parties, which approval shall not be unreasonably
withheld. In the event that an indemnifying party elects to assume the
defense of any such suit and retain such counsel, the indemnified party or
parties shall bear the fees and expenses of any additional counsel thereafter
retained by such indemnified party or parties; provided, however, that the
indemnified party or parties shall have the right to employ counsel (in
addition to local counsel) to represent the indemnified party or parties who
may be subject to liability arising out of any action in respect of which
indemnity may be sought against the indemnifying party if, in the reasonable
judgement of counsel for the indemnified party or parties, there may be legal
defenses available to such indemnified person which are different from or in
addition to those available to such indemnifying person, in which event the
reasonable fees and expenses of appropriate separate counsel shall be borne
by the indemnifying party. In no event shall the indemnifying parties be
liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution
could be sought under this Section 6 or Section 7 hereof (whether or
29
not the indemnified parties are actual or potential parties thereto), unless
such settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written consent
if (i) such settlement is entered into more than 45 days after receipt by
such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with
such request prior to the date of such settlement. Notwithstanding the
immediately preceding sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel, an indemnifying party shall not be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected
without its consent if such indemnifying party (i) reimburses such
indemnified party in accordance with such request to the extent the
indemnifying party in its judgement considers such request to be reasonable
and (ii) provides written notice to the indemnified party stating the reason
it deems the unpaid balance unreasonable, in each case prior to the date of
such settlement.
SECTION 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnification provided for in
Section 6 hereof is for any reason held to be unenforceable by an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Offerors on the
one hand and the Underwriters on the other hand from the offering of the
Preferred Securities pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Offerors, on the one
hand, and of the Underwriters, on the other hand, in connection with
30
the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Offerors on the one hand and the
Underwriters on the other hand in connection with the offering of the
Preferred Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of
the Preferred Securities pursuant to this Agreement (before deducting
expenses) received by the Offerors and the total commission received by the
Underwriters, bear to the aggregate initial offering price of the Preferred
Securities.
The relative fault of the Offerors, on the one hand, and the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statements of a
material fact or omission or alleged omission to state a material fact
relates to information supplied by the Offerors or by the Underwriters and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Offerors and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section 7.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, the Underwriters shall
not be required to contribute any amount in excess of the amount by which the
total price at which the Preferred Securities purchased by it and distributed
to the public were offered to the public exceeds the amount of any damages
which the Underwriters has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 0000 Xxx) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
31
For purposes of this Section 7, each person, if any, who controls the
Underwriters within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act and the respective partners, directors, officers, employees
and agents of the Underwriters shall have the same rights to contribution as
the Underwriters, and each officer and director of the Company, and each
person, if any, who controls the Company within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or trustees of the
Trust submitted pursuant hereto, shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Trust or the
Company, and shall survive delivery of the Preferred Securities to the
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriters may terminate this
Agreement, by notice to the Offerors, at any time at or prior to the Closing
Time (i) if there has occurred, since the time of execution of this Agreement
or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Trust or the Company and its subsidiaries, considered as one enterprise,
whether or not arising in the ordinary course of business or (ii) if there
has occurred any material adverse change in the financial markets in the
United States, any outbreak of hostilities or escalation thereof or other
calamity or crisis, or any change or development involving a prospective
change in national political, financial or economic conditions, in each case
the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Preferred Securities or to enforce
contracts for the sale of the Preferred Securities, or (iii) if trading in
any securities of the Company has been suspended or limited by the
Commission, or if trading generally on the American Stock Exchange, the New
York Stock Exchange or NASDAQ has been suspended or limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either federal or Massachusetts authorities.
32
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 1, 6 and 7 hereof shall survive such termination and remain in full
force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one of the
Underwriters shall fail at Closing Time or a Date of Delivery to purchase the
Preferred Securities which it or they are obligated to purchase under this
Agreement (the "Defaulted Securities"), the remaining Underwriter shall have
the right, within 24 hours thereafter, to make arrangement, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, such
Underwriter shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Preferred Securities to be purchased on such date, the
non-defaulting Underwriter shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
the non-defaulting Underwriter, or
(b) if the number of Defaulted securities exceeds 10% of the number
of Preferred Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the Company to sell the
Optional Preferred Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of the non-defaulting
Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the underwriters to purchase and the Company to sell the
relevant Optional Preferred Securities, as the case may be, either the
underwriters or the Company shall have the right to postpone Closing Time or
the relevant Date of Delivery, as the case may be, for required changes in
the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
33
SECTION 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxx Xxxxx Xxxx Xxxxxx Incorporated, 0000
Xxxxxxxxxxxx Xxxxxx X.X., Xxxxxxxxxx, X.X. 00000, Attention Xxxx X. Xxxxxxx,
Managing Director, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxx,
Esq.; notices to the Offerors shall be directed to Independent Bank Corp.,
000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx, 00000, Attention: Xxxxxxx X.
Xxxxxx, with a copy to Elias, Matz, Xxxxxxx & Xxxxxxx L.L.P., The Xxxxxx
Building, 000 00xx Xxxxxx, XX, 00xx Xxxxx, Xxxxxxxxxx, XX 00000, Attention:
Xxxxxx X. Xxxxx, Esq.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriters and the Offerors and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters and the Offerors and their respective successors and
the controlling persons and officers and directors referred to in Sections 1,
6 and 7 hereof and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the
Underwriters and the Offerors and their respective successors, and said
controlling persons and officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation.
No purchaser of Preferred Securities from the Underwriters shall be deemed
to be a successor by reason merely of such purchase.
The Company, on behalf of itself and its subsidiaries (including, without
limitation, the Trust), hereby irrevocably submits to the exclusive
jurisdiction of the federal and New York State courts located in the City of
New York in connection with any suit, action or proceeding related to this
agreement or any of the matters contemplated hereby, irrevocably waives any
defense of lack of personal jurisdiction and irrevocably agrees that all
claims in respect of any suit, action or proceeding may be heard and
determined in any such court. The Company, on behalf of itself and the
subsidiaries (including, without limitation, the Trust), irrevocably waives,
to the fullest extent it may effectively do so under applicable law, any
objection which it may now or hereafter have to the laying of venue of any
such suit, action or proceeding brought in any such court and any claim that
any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
34
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES.
SECTION 14. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
35
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Offerors in accordance with its
terms.
Very truly yours,
INDEPENDENT BANK CORP.
By
------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
INDEPENDENT CAPITAL TRUST I
By
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXX XXXXX XXXX XXXXXX INCORPORATED
By
-------------------------------
Authorized Signatory
36
SCHEDULE A
Number of
Initial
Preferred
Name of Underwriter Securities
------------------- -------------
Xxxx Xxxxx Xxxx Xxxxxx Incorporated..................
Xxxxx Xxxxxxx, Inc...................................
Total................................................ ---------------
1,000,000
---------------
i
