Exhibit 1
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INDEPENDENT BANK CORP.
(a Massachusetts corporation); and
INDEPENDENT CAPITAL TRUST II
(a Delaware statutory business trust)
2,000,000
____% Cumulative Trust
Preferred Securities
UNDERWRITING AGREEMENT
Dated: __________, 1999
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EXHIBIT 1
INDEPENDENT BANK CORP.
(a Massachusetts corporation); and
INDEPENDENT CAPITAL TRUST II
(a Delaware statutory business trust)
2,000,000
____% Cumulative Trust
Preferred Securities
(Liquidation Amount $10 Per Cumulative Preferred Security)
UNDERWRITING AGREEMENT
______, 1999
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED c/▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Director
Ladies and Gentlemen:
Independent Capital Trust II (the "Trust"), a statutory business trust
organized under the Delaware Business Trust Act, 12 Del. C. ▇▇.▇▇. 3801 ET SEQ.
(the "Delaware Act"), confirms its agreement with you and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, Incorporated ("▇▇▇▇ ▇▇▇▇▇") with respect to the issuance and sale by the
Trust, and the purchase by the Underwriter of the respective numbers of _____ %
Cumulative Trust Preferred Securities (liquidation amount $10 per preferred
security) set forth in Schedule A hereto and the grant by the Trust to the
Underwriter, of the option described in Section 2(b) hereof to purchase all or
any part of 300,000 additional Preferred Securities to cover overallotments, if
any. The aforesaid 2,000,000 preferred securities (the "Initial Preferred
Securities") to be purchased by the Underwriter and all or any part of the
300,000 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 Underwriter proposes to make a public
offering of the Preferred Securities as soon as it deems 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 2029 (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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as administrative trustees (the "Administrative Trustees"
and together with the Property Trustee and the Delaware 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 (Nos.
333-_____and 333-_____-01) 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 deliver of this Agreement,
the Company will either (i) prepare and file a prospectus in accordance with the
provisions of Rule 430A ("Rule 430A") and 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
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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 call the "Prospectus." If Rule 434 is relied on, the term
"Prospectus" shall refer to the preliminary prospectus dated __________, 1999
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 ("▇▇▇▇▇").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) The Offerors jointly and severally represent and warrant
to the 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 the 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 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
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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 the Underwriter
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 Underwriter for use in connection with this
offering was substantively identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to
the extent permitted by Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified
the financial statements incorporated by reference in the Prospectus
are independent public accountants within the meaning of the 1933 Act
and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The consolidated historical
financial statements, together with the related schedules and notes,
incorporated by reference 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 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 incorporated by reference 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 financial condition, 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
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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 Commonwealth 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 Commonwealth 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.
(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 or similar rights arising by operation of law, under
the Articles of Organization or bylaws of the Company or under any
agreement to which the Company is a party. 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 September 30, 1999 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
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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.
(xii) AUTHORIZATION OF COMMON SECURITIES. The Common
Securities have been duly authorized for issuance by the Trust pursuant
to the Declaration and, when certificates therefor have been issued,
executed and authenticated 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. The Preferred Securities
Guarantee has been qualified under the 1939 Act and each of the
Guarantees 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 "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,
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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, 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 DISPUTES. 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; the
aggregate of all pending legal or governmental proceedings to which the
Trust or the Company or any of its
8
subsidiaries is a party or of which any of their respective properties
or assets is the subject which are not described in the Prospectus,
including ordinary routine litigation incidental to the business, are
not, in the reasonable judgement of the Company or the Trust, expected
to result in a Material Adverse Effect.
(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 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. Each of the Trust, the Company and
its subsidiaries has 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 Trust, or 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
9
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
reasonably expected to, cause or result in stabilization or
manipulation of the price of the Preferred Securities.
(xxx) INTELLECTUAL PROPERTY. Each of the Trust, the Company
and the subsidiaries of the Company own or possess, or can acquire on
reasonable terms, adequate patents, licenses, trademarks, service
marks, or trade names (collectively, "Intellectual Property") presently
employed by them in connection with the business now operated by them
or reasonably necessary in order to conduct such business, and neither
the Trust, the Company nor any of the Company's subsidiaries has
received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Trust, the Company or any of its subsidiaries therein,
and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in
the aggregate, in the reasonable judgment of the Company, is likely to
result in a Material Adverse Effect.
(xxxi) YEAR 2000. The computer software operated by the
Company and any subsidiary which is material to the conduct of the
business of the Company and any subsidiary is in compliance in all
material respects with all relevant Federal Financial Institutions
Examination Council guidance and requirements relating to the Year 2000
computer issues.
(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 Underwriter shall be deemed a representation and
warranty by the Trust or the Company, as the case may be, to the Underwriter as
to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO UNDERWRITER; 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 the Underwriter, and
the Underwriter agrees to purchase from the Trust, at the purchase price of $10
per Initial Preferred Security, the number of Initial Preferred Securities set
forth in Schedule A opposite the name of the Underwriter, plus any additional
number of Initial Preferred Securities which the Underwriter may become
obligated to purchase pursuant to the provisions of Section 10 hereof, subject,
in each case, to such adjustments to the Underwriter as it in its sole
discretion shall make to eliminate any sales or purchases of fractional
securities. As compensation to the Underwriter for its 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
10
Delivery to the Underwriter a commission of $____ per Preferred Security
purchased by the Underwriter by wire transfer of immediately available funds.
(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
Underwriter to purchase up to 300,000 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, but only once, solely 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 Underwriter to the Trust
setting forth the number of Optional Preferred Securities as to which the
Underwriter is 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 Underwriter, but
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, the Underwriter
will purchase and the Trust agrees to sell to the Underwriter 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 the Underwriter bears to the total number of Initial Preferred
Securities, subject in each case to such adjustments as the Underwriter in its
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 Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. in Washington, D.C., or at such other
place as shall be agreed upon by the Underwriter and the Offerors, at 9:00 a.m.,
Washington, D.C. time, on ________, 1999 (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 Underwriter 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 Underwriter, 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 Underwriter and the Offerors on the Date of Delivery as specified in
the notice from the Underwriter 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 Underwriter through the facilities of the Depository
Trust Company ("DTC") of certificates for the Preferred Securities to be
purchased by them.
(d) DENOMINATIONS, REGISTRATION. Certificates for the Initial
Preferred Securities and the Optional Preferred Securities, if any, shall be in
definitive form, and in such denominations and registered in such names as the
Underwriter may request in writing at least one business day before the Closing
Time
11
or the Date of Delivery, as the case may be. All such certificates shall be made
available for examination and packaging by the Underwriter at the office of DTC
or its designated custodian not later than 10:00 a.m. on the last business day
prior to the Closing Time or the Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE OFFERORS. The Offerors jointly and
severally covenant with the 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 Underwriter 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 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 Underwriter 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
Underwriter 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 Underwriter or counsel for the Underwriter shall
reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has
furnished or will deliver to the Underwriter and counsel for the Underwriter,
without charge, two copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and copies of all consents and certificates of experts, and
will also deliver to the Underwriter, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for the Underwriter. The copies of the Registration Statement
and each amendment thereto furnished to the Underwriter will be substantively
identical to the electronically transmitted copies thereof filed with the Commis
sion pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
12
(d) DELIVERY OF PROSPECTUSES. The Offerors, as promptly as
possible, will furnish to the Underwriter, 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
Underwriter 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 the 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 the Underwriter may reasonably request. The
Prospectus and any amendments or supplements thereto furnished to the
Underwriter will be substantively identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(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 Underwriter 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 tile 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
Underwriter such number of copies of such amendment or supplement as the
Underwriter may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company and the Trust will
each use its best efforts, in cooperation with the Underwriter, to qualify the
Preferred Securities for offering and sale under the applicable securities laws
of such states and other jurisdictions as the Underwriter 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 later of
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
13
(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 Underwriter, 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 Underwriter as evidenced by a notice in writing from
the Underwriter 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 Underwriter or counsel to the Underwriter, 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 Underwriter 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
Underwriter) 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) DTC. The Offerors will cooperate with the Underwriter and
use their best efforts to permit the Preferred Securities to be eligible for
clearance and settlement through the facilities of DTC.
(j) 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
from the sale of the Junior Subordinated Debentures, in the manner specified in
the Prospectus under "Use of Proceeds."
(k) LISTING. The Company will use its best efforts to effect
the listing of the Preferred Securities on the Nasdaq National Market
("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 or such other exchange where the Preferred Securities are listed.
(l) 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 the Underwriter, (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
14
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), 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.
(m) 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 rules and regulations of the Commission under
the 1934 Act.
(n) FURNISH REPORTS. For and during the period ending three
years after the effective date of the Registration Statement, the Company will
furnish to the Underwriter 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 Underwriter 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 and
the Junior Subordinated Debentures, (iii) the preparation, issuance and delivery
of the certificates for the Preferred Securities to the Underwriter, 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 Underwriter, (iv)
the fees and disbursements of the Company's counsel, accountants and other
advisors, (v) 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, (vi) the printing and
delivery to the Underwriter of copies of each preliminary prospectus, any Term
Sheets and of the Prospectus and any amendments or supplements thereto, if any,
(vii) the fees and expenses of any transfer agent or registrar for the Preferred
Securities, (viii) the filing fees incident to the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Preferred Securities, (ix) the fees and expenses incurred in
15
connection with the listing of the Preferred Securities and, if applicable, the
Junior Subordinated Debentures on NASDAQ, and (x) the cost and charges of
qualifying the Preferred Securities with DTC.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated
by the Underwriter in accordance with the provisions of Section 5 or Section
9(a)(i) hereof, the Company shall reimburse the Underwriter for all of their
reasonable, actual, accountable out-of-pocket expenses, including the reasonable
fees and disbursements of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, counsel for the Underwriter,
up to the limit specified in Section 4(a)(vi) hereof.
SECTION 5. CONDITIONS OF UNDERWRITER' OBLIGATIONS. The obligations of
the Underwriter 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 Underwriter. 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)).
(b) OPINION OF OUTSIDE COUNSEL FOR OFFERORS. At the Closing
Time, the Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the
Offerors, in form and substance reasonably satisfactory to the Underwriter. 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
Underwriter.
(c) OPINION OF SPECIAL DELAWARE COUNSEL FOR OFFERORS. At the
Closing Time, the Underwriter shall have received the favorable opinion, dated
as of the Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger P.A., special Delaware
counsel for the Offerors, in form and substance reasonably satisfactory to the
Underwriter.
(d) OPINION OF COUNSEL FOR THE BANK OF NEW YORK. At the
Closing Time, the Underwriter shall have received the favorable opinion, dated
as of the Closing Time, of ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to The Bank of
New York, as Property Trustee under the Declaration, Guarantee
16
Trustee under the Preferred Securities Guarantee Agreement and Debenture Trustee
under the Indenture, in form and substance reasonably satisfactory to counsel
for the Underwriter.
(e) OPINION OF SPECIAL TAX COUNSEL FOR THE OFFERORS. At the
Closing Time, the Underwriter shall have received an opinion, dated as of the
Closing Time, of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ 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
States 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.
(f) OPINION OF COUNSEL FOR THE UNDERWRITER. At the Closing
Time, the Underwriter shall have received the favorable opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Wood, counsel for the Underwriter, with
respect to the Preferred Securities, the Operative Documents, the Prospectus and
other related matters as the Underwriter 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
financial condition 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 Underwriter
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 ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP (the "Accountants") a letter dated such date, in form and substance
satisfactory to the Underwriter, containing statements and information of the
type ordinarily included in accountants' "comfort letters" to Underwriter with
respect to the financial statements and certain financial information included
or incorporated by reference in the Prospectus.
17
(i) BRING-DOWN COMFORT LETTER. At the Closing Time, the
Underwriter 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.
(j) APPROVAL OF LISTING. At the Closing Time, the Preferred
Securities shall have been approved for listing on NASDAQ.
(k) CONDITIONS TO PURCHASE OF OPTIONAL PREFERRED SECURITIES.
In the event that the Underwriter exercises its 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 the Date of Delivery and, at the Date
of Delivery, the Underwriter shall have received:
(i) OPINION OF OUTSIDE COUNSEL FOR OFFERORS. The favorable
opinion of Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., counsel for the
Offerors, in form and substance satisfactory to counsel for the
Underwriter, 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ &
Finger P.A., special Delaware counsel for the Offerors, in form and
substance satisfactory to counsel for the Underwriter, 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 ▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇, 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 satisfactory to counsel for the Underwriter, 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, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇ L.L.P., special tax counsel to the Offerors, in form and
substance satisfactory to counsel for the Underwriter, 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 UNDERWRITER. The favorable
opinion, dated such Date of Delivery, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇,
counsel for the Underwriter, relating to the Optional
18
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
Underwriter, substantially in the same form and substance as the letter
furnished to the Underwriter 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.
(l) ADDITIONAL DOCUMENTS. At the Closing Time, counsel for the
Underwriter 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 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 Underwriter and counsel for the Underwriter.
(m) 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 Underwriter 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 UNDERWRITER. The Offerors agree to
jointly and severally indemnify and hold harmless (x) the Underwriter, (y) each
person, if any, who controls the 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 and employees of
the 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
19
or arising out of any untrue statement of a material fact contained in
any preliminary prospectus or the Prospectus (or any amendment or
supple ment 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 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
Underwriter), 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
the Underwriter expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and 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 con trolling 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 Preferred 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 the Underwriter.
(b) INDEMNIFICATION OF OFFERORS, DIRECTORS, OFFICERS AND
EMPLOYEES. The Underwriter 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 the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or
20
supplement thereto) in reliance upon and in conformity with written information
furnished to the Offerors by the Underwriter 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 investi gation
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 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.
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 Underwriter 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
21
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
Underwriter, on the other hand, in connection with 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
Underwriter 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 Underwriter,
bear to the aggregate initial offering price of the Preferred Securities.
The relative fault of the Offerors, on the one hand, and the
Underwriter, 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
of omission or alleged omission to state a material fact relates to information
supplied by the Offerors or by the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Offerors and the Underwriter 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 Underwriter 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 Underwriter 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person, if any, who controls the Underwriter within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act and the respective
partners, directors, officers and employees of the Underwriter shall have the
same rights to contribution as the Underwriter, and each officer, director and
employee 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.
22
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 con
trolling person, or by or on behalf of the Trust or the Company, and shall
survive delivery of the Preferred Securities to the Underwriter.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Underwriter 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 Underwriter, 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 NASD or any other governmental authority, or (iv) if a banking
moratorium has been declared by either federal or Massachusetts authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to
this Section, such termination shall he without liability of any party to any
other party except as provided in Section 4 hereof, and provided further that
Sections 6 and 7 hereof shall survive such termination and remain in full force
and effect.
SECTION 10. 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
Underwriter shall be directed to ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Managing Director, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,
Esq.; notices to the Offerors shall be directed to Independent Bank Corp., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with
a copy to Elias, Matz, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., The ▇▇▇▇▇▇ Building, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq.
23
SECTION 11. PARTIES. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriter 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
Underwriter 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 Underwriter 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
Underwriter 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.
SECTION 12. 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 13. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
24
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 Underwriter and the Offerors in accordance with its terms.
Very truly yours,
INDEPENDENT BANK CORP.
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Financial Officer
INDEPENDENT CAPITAL TRUST II
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Administrative Trustee
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, INCORPORATED
By: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated
By:
------------------------------------
Authorized Signatory
25
SCHEDULE A
Number of Initial
Name of Underwriter Preferred-Securities
---------------------------------------------------- --------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Incorporated................
Total...............................................
26
