UNENFORCEABLE, THE REMAINING
PROVISIONS HEREOF, OR THE APPLICATION OF SUCH PROVISION TO PERSONS OR
CIRCUMSTANCES OTHER THAN THOSE AS TO WHICH IT HAS BEEN HELD INVALID OR
UNENFORCEABLE, WILL REMAIN IN FULL FORCE AND EFFECT AND SHALL IN NO WAY BE
AFFECTED, IMPAIRED OR INVALIDATED THEREBY, SO LONG AS THE ECONOMIC OR LEGAL
SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY IS NOT AFFECTED IN ANY MANNER
MATERIALLY ADVERSE TO ANY PARTY.
UPON SUCH DETERMINATION, THE PARTIES SHALL
NEGOTIATE IN GOOD FAITH IN AN EFFORT TO AGREE UPON A SUITABLE AND EQUITABLE
SUBSTITUTE PROVISION TO EFFECT THE ORIGINAL INTENT OF THE PARTIES.
SECTION 6.10
NO THIRD-PARTY BENEFICIARIES.
NOTHING CONTAINED IN THIS
AGREEMENT, EXPRESSED OR IMPLIED, IS INTENDED TO CONFER UPON ANY PERSON OR ENTITY
OTHER THAN THE COMPANY AND THE INVESTOR ANY BENEFIT, RIGHT OR REMEDIES, EXCEPT
THAT (I) THE PROVISIONS OF SECTION 4.4 SHALL INURE TO THE BENEFIT OF THE PERSONS
REFERRED TO IN THAT SECTION AND (II) THE PROVISIONS OF SECTION 5.5 SHALL INURE
TO THE BENEFIT OF THE PERSONS HOLDING CAPITAL SECURITIES DURING ANY TACKED
HOLDING PERIOD, AS CONTEMPLATED BY THAT SECTION.
SECTION 6.11
ENTIRE AGREEMENT, ETC.
THIS AGREEMENT (INCLUDING THE ANNEXES
AND SCHEDULES HERETO) CONSTITUTES THE ENTIRE AGREEMENT, AND SUPERSEDES ALL OTHER
PRIOR AGREEMENTS, UNDERSTANDINGS, REPRESENTATIONS AND WARRANTIES, BOTH WRITTEN
AND ORAL, BETWEEN THE PARTIES, WITH RESPECT TO THE SUBJECT MATTER HEREOF.
FOR
THE AVOIDANCE OF DOUBT, THE SECURITIES PURCHASE AGREEMENT SHALL REMAIN IN FULL
FORCE AND EFFECT.
SECTION 6.12
COUNTERPARTS AND FACSIMILE.
FOR THE CONVENIENCE OF THE PARTIES
HERETO, THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF SEPARATE COUNTERPARTS,
EACH SUCH COUNTERPART BEING DEEMED TO BE AN ORIGINAL INSTRUMENT, AND ALL SUCH
COUNTERPARTS WILL TOGETHER CONSTITUTE THE SAME AGREEMENT.
EXECUTED SIGNATURE
PAGES TO THIS AGREEMENT MAY BE DELIVERED BY FACSIMILE AND SUCH FACSIMILES WILL
BE DEEMED AS SUFFICIENT AS IF ACTUAL SIGNATURE PAGES HAD BEEN DELIVERED.
SECTION 6.13
SPECIFIC PERFORMANCE.
THE PARTIES AGREE THAT IRREPARABLE DAMAGE
WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT WERE NOT
PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS.
IT IS ACCORDINGLY AGREED
THAT THE PARTIES SHALL BE ENTITLED (WITHOUT THE NECESSITY OF POSTING A BOND) TO
SPECIFIC PERFORMANCE OF THE TERMS HEREOF, THIS BEING IN ADDITION TO ANY OTHER
REMEDIES TO WHICH THEY ARE ENTITLED AT LAW OR EQUITY.
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[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
Independent Bank Corporation
By:
/s/ Robert N. Shuster
Name:
Robert N. Shuster
Title:
EVP and Chief Finanicial Officer
UNITED STATES DEPARTMENT OF THE TREASURY
By:
/s/ David N. Miller
Name:
David N. Miller
Title:
Chief Investment Officer, OFS
[Signature Page to Exchange Agreement]
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ANNEX A
FORM OF AMENDED WARRANT
THE SECURITIES REPRESENTED BY THIS INSTRUMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT