Exhibit 4(p)
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REPUBLIC BANCORP INC.
$25,000,000
7.17% SENIOR DEBENTURES DUE APRIL 1, 2001
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DEBENTURE PURCHASE AGREEMENT
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Dated as of March 30, 1994
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TABLE OF CONTENTS
(Not Part of Agreement)
Page
1. AUTHORIZATION OF ISSUE OF DEBENTURES. . . . . . . . . . 1
2. PURCHASE AND SALE OF DEBENTURES . . . . . . . . . . . . 1
3. CONDITIONS OF CLOSING . . . . . . . . . . . . . . . . . 2
4. NO PREPAYMENTS. . . . . . . . . . . . . . . . . . . . . 3
5. COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 3
6. EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . 4
7. REPRESENTATIONS, COVENANTS AND WARRANTIES . . . . . . . 7
8. REPRESENTATIONS OF THE PURCHASERS . . . . . . . . . . . 10
9. SUBSEQUENT OFFERS AND RESALES OF THE SECURITIES . . . . 10
10. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . 12
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . 15
PURCHASER SCHEDULE
EXHIBIT A - FORM OF DEBENTURE
EXHIBIT B - FORM OF OPINION OF COMPANY'S COUNSEL
EXHIBIT C - LIST OF AGREEMENTS RESTRICTING DEBT
REPUBLIC BANCORP INC.
1070 East Main Street
Owosso, Michigan 48867
As of March 30, 1994
SCUDDER, STEVENS & CLARK, INC.
600 Vine Street - Suite 2000
Cincinnati, Ohio 45202
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
One Penn Valley Park
BMA Tower - 18th Floor
Kansas City, Missouri 64141
COLUMBUS LIFE INSURANCE COMPANY
400 Broadway
Cincinnati, Ohio 45202
MUTUAL OF AMERICA LIFE INSURANCE COMPANY
666 Fifth Avenue
New York, New York 10103
Gentlemen:
The undersigned, Republic Bancorp Inc. (herein called the
"Company"), hereby agrees with you as follows:
1. AUTHORIZATION OF ISSUE OF DEBENTURES. The Company will
authorize the issue of its Senior Debentures (herein called the
"Debentures") to be issued in global form, in the aggregate
principal amount of $25,000,000, to be dated the date of issue
thereof, to mature April 1, 2001, to bear interest on the unpaid
balance thereof from the date thereof until the principal thereof
shall have become due and payable at the rate of 7.17% per annum,
paid semiannually, and to be substantially in the form of
Exhibit A attached hereto. The term "Debentures" as used herein
shall include the global Debenture delivered pursuant to any
provision of this Agreement and each Debenture delivered in
substitution or exchange for any such Debenture pursuant to any
such provision.
2. PURCHASE AND SALE OF DEBENTURES. The Company hereby
agrees to sell to you and, subject to the terms and conditions
herein set forth, you agree to purchase from the Company the
aggregate principal amount of Debentures set forth opposite your
name in the Purchaser Schedule attached hereto at 100% of such
aggregate principal amount.
Payment of the purchase price for and delivery of the
Debentures to be purchased by the Purchasers shall be made
through the systems of the Depository Trust Company, with
delivery of the Debentures to the accounts of the Purchasers to
be made against payment for the Debentures in same day funds, or
in such other manner as shall be agreed upon by the Purchasers
and the Company, at 10:00 A.M. on the fifth New York business day
following the date hereof.
3. CONDITIONS OF CLOSING. Your obligation to purchase and
pay for the Debentures to be purchased by you hereunder is
subject to the satisfaction, on or before the date of closing, of
the following conditions:
3A. Opinion of Purchasers' Special Counsel. You shall have
received from Brown & Wood, who are acting as special counsel for
you in connection with this transaction, a favorable opinion
satisfactory to you as to: (i) the due organization, existence
and good standing of the Company; (ii) the due authorization by
all requisite corporate action, execution and delivery and the
validity, legally binding character and enforceability of this
Agreement and the Debentures; (iii) the absence of any
requirement to register the Debentures under the Securities Act
or to qualify an indenture under the Trust Indenture Act of 1939,
as amended; and (iv) such other matters incident to the matters
herein contemplated as you may reasonably request. In rendering
such opinion, such counsel may rely, as to matters of Michigan
law and the matters specified in clause (i) above, upon the
opinion referred to in paragraph 3B. Such opinion shall also
state that, based upon such investigation and inquiry as is
deemed relevant and appropriate by such counsel, the opinion
referred to in paragraph 3B is satisfactory in form and scope to
such counsel and, while such investigation and inquiry into the
matters covered by such opinion (other than the matters specified
in clauses (ii) and (iii) above) were not sufficient to enable
such counsel independently to render such opinion, nothing has
come to the attention of such counsel which has caused it to
question the legal conclusions expressed in the opinion referred
to in paragraph 3B and such counsel believe that you are
justified in relying on such opinion.
3B. Opinion of Company's Counsel. You shall have received
from Dickinson, Wright, Moon, Van Dusen & Freeman, special
counsel for the Company, a favorable opinion satisfactory to you
and substantially in the form of Exhibit B attached hereto.
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3C. Representations and Warranties; No Default. The
representations and warranties contained in Section 7 shall be
true on and as of the date of closing, except to the extent of
changes caused by the transactions herein contemplated; there
shall exist on the date of closing no Event of Default or
Default; and the Company shall have delivered to you an Officer's
Certificate, dated the date of closing, to both such effects.
3D. Proceedings. All corporate and other proceedings taken
or to be taken in connection with the transactions contemplated
hereby and all documents incident thereto shall be satisfactory
in substance and form to you, and you shall have received all
such counterpart originals or certified or other copies of such
documents as you may reasonably request.
4. NO PREPAYMENTS. The Company shall not, and shall not
permit any of its Subsidiaries or Affiliates to, prepay or
otherwise retire in whole or in part prior to their stated final
maturity (other than upon acceleration of such final maturity
pursuant to paragraph 6A), or purchase or otherwise acquire,
directly or indirectly, Debentures held by any holder.
5. COVENANTS.
5A. Limitation on Funded Indebtedness and Indebtedness.
The Company will not, and will not permit any Subsidiary to
create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable in respect of any:
(i) Funded Indebtedness unless, after giving effect
thereto, Funded Indebtedness shall not exceed 70% of
Consolidated Net Worth;
(ii) Indebtedness unless, after giving effect thereto,
Indebtedness shall not exceed 75% of Consolidated Net
Worth.
5B. Consolidated Tangible Equity Capital. The Company will
at all times maintain Consolidated Tangible Equity Capital in an
amount no less than the greater of $50 million or 4.0% of
Consolidated Assets.
5C. Restrictions as to Dividends and Certain Other
Payments. So long as the Debentures are outstanding, the Company
will not declare or pay any dividend or make any other
distribution on its capital stock or to its respective
stockholders (other than dividends or distributions payable in
its capital stock) or purchase, redeem or otherwise acquire for
value (except pursuant to a bona fide pledge or employee benefit
plan) any of its capital stock or permit any Subsidiary to do so,
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if at the time of such action (i) there exists a default in the
payment of interest on the Debentures which has continued for 15
days or more (except that dividends declared prior to such a
default may be paid) or if such a default has occurred during the
preceding 12 months or such shorter period as the Debentures have
been outstanding, (ii) the aggregate amount of any such
dividends, distributions or other payments during the period from
January 1, 1994 through and including the date of any such
dividend, distribution or other payment would exceed an amount
equal to the Company's cumulative Net Income for such period plus
$10 million or (iii) the Total Shareholders' Equity of the
Company is or as a result of such action would become, less than
$50 million.
5D. Merger, Consolidation or Sale of Assets; Successor
Corporations. The Company will not merge or consolidate with, or
sell all or substantially all of its assets to any person, firm
or corporation unless it is the continuing corporation in such
transaction and, immediately thereafter, it is not in default
under this Agreement or, if it is not the successor, the
successor corporation expressly assumes the Company's obligations
under this Agreement and immediately after such transaction, it
is not in default under this Agreement. Any successor
corporation shall succeed to and be substituted for the Company
as if such successor corporation had been named as the Company in
this Agreement.
5E. Modification of the Debentures or the Debenture
Purchase Agreement. With the consent of the holders of not less
than 66 2/3% in principal amount of the Debentures, any term,
covenant, agreement, or condition of the Debentures or this
Agreement may be amended or compliance therewith waived, provided
that no amendment or waiver shall, without the consent of the
holders of all the Debentures: (i) change the principal amount of
any Debenture or the maturity of the principal of any Debenture
or (ii) reduce the rate or extend the time of payment of interest
on any Debenture or (iii) reduce the percentage of holders of
Debentures required to consent to any such amendment or waiver.
5F. Line of Business. So long as the Debentures are
outstanding, the Company will remain principally engaged in the
business of banking or mortgage banking.
6. EVENTS OF DEFAULT.
6A. Acceleration. If any of the following events shall
occur and be continuing for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about
or be effected by operation of law or otherwise):
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(i) default in the payment of the principal of or
premium, if any, on any Debenture when the same becomes
due and payable at maturity, upon redemption or
otherwise;
(ii) default in the payment of interest on the
Debentures when the same becomes due and payable and
the continuance of such default for a period of 15
days;
(iii) failure to comply with any agreement or covenant
of the Company in, or provisions of, the Debentures or
this Debenture Purchase Agreement and the continuance
of such default for a period of 60 days;
(iv) an event of default occurs under any mortgage,
bond, indenture, loan agreement or other evidence of
indebtedness under which there may be issued or by
which there may be secured or evidenced any
Indebtedness (other than non-recourse Indebtedness) for
money borrowed by the Company or any Subsidiary thereof
(or the payment of which is guaranteed by the Company
or any Subsidiary) whether such Indebtedness or
guarantee now exists or shall be created hereafter;
provided, however, that no such event of default shall
constitute an Event of Default unless the effect of
such Event of Default is to cause the acceleration of
such Indebtedness prior to its stated maturity, which,
together with the principal amount of any other such
Indebtedness so caused to be accelerated, aggregates
$2,000,000 or more at any time;
(v) a final judgment or final judgments for the
payment of money are entered by a court or courts of
competent jurisdiction against the Company or any
Subsidiary thereof which remains or remain undischarged
for a period (during which execution shall not be
effectively stayed) for 45 days, provided that the
aggregate of all such judgements is $10,000,000 or more
at any time;
(vi) any representation or warranty made by the
Company in this Agreement, or made by the Company in
any written statement or certificate furnished by the
Company in connection with the issuance and sale of the
Debentures or furnished by the Company pursuant to this
Agreement proves false in any material respect as of
the date of the issuance or making thereof;
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(vii) the Company or any Subsidiary thereof shall
institute proceedings to be adjudicated insolvent, or
shall consent to the filing of an insolvency proceeding
against it, or shall file a petition or answer or
consent seeking reorganization, readjustment,
arrangement, composition, appointment of a receiver or
similar relief under the federal insolvency laws, or
any other similar applicable law of any governmental
unit, domestic or foreign, or shall consent to the
appointment of a receiver or conservator or liquidator
or trustee or assignee in insolvency of it or of a
substantial part of its property, or shall make an
assignment for the benefit of creditors, or shall admit
in writing its inability to pay its debts generally as
they become due, or if the Company shall voluntarily
suspend transaction of its business, or if corporate
action shall be taken by the Company or any Subsidiary
thereof in furtherance of any of the aforesaid
purposes;
then in the cases of (i), (ii), (iv) (v), (vi) and
(vii) above, unless the principal of the Debentures
shall have already become due and payable, holders of
no less than 51% in aggregate principal amount of the
Debentures then outstanding may declare the principal
of the Debentures to be immediately due and payable,
anything in this Agreement or in the Debentures to the
contrary notwithstanding. In the case of (iii) above,
unless the principal of the Debentures shall have
already become due and payable, holders of no less than
51% in aggregate principal amount of the Debentures
then outstanding may declare the principal of the
Debentures to be due and payable, along with all
accumulated interest, 10 days after the Company has
been in default under (iii) above and the applicable
grace period set forth therein has expired. A
Debenture holder, by written notice to the Company, may
waive all defaults and rescind such acceleration and
its consequences as to the Debentures held by such
Debenture holder; but no such waiver or rescission and
annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent
upon any subsequent default.
The Company shall deliver to the Purchasers, within 15
days after it becomes aware of the occurrence thereof,
written notice of any event which with the giving of
notice and the lapse of time or both would become an
Event of Default under (iv) or (v) above, its status
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and what action the Company is taking or proposes to
take with respect thereto.
In the event Debenture holders shall have proceeded to
enforce any right under this Agreement and such
proceeding shall have been discontinued or abandoned or
shall have been determined adversely to the holders,
then in every such case the Company and the Debenture
holders shall be restored, respectively, to their
former positions under the Debentures and this
Agreement, and all other rights, remedies and powers of
the Company and the Debenture holders, respectively,
under the Debentures and this Agreement shall continue
as though no such proceedings had been undertaken.
6B. Other Remedies. If any Event of Default or Default
shall occur and be continuing, the holder of any Debenture may
proceed to protect and enforce its rights under this Agreement
and such Debenture by exercising such remedies as are available
to such holder in respect thereof under applicable law, either by
suit in equity or by action at law, or both, whether for specific
performance of any covenant or other agreement contained in this
Agreement or in aid of the exercise of any power granted in this
Agreement. No remedy conferred in this Agreement upon the holder
of any Debenture is intended to be exclusive of any other remedy,
and each and every such remedy shall be cumulative and shall be
in addition to every other remedy conferred herein or now or
hereafter existing at law or in equity or by statute or
otherwise.
7. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants:
7A. Organization. The Company is a corporation duly
organized and existing in good standing under the laws of the
State of Michigan, each Subsidiary is duly organized and existing
in good standing under the laws of the jurisdiction in which it
is incorporated, and the Company has and each Subsidiary has the
corporate power to own its respective property and to carry on
its respective business as now being conducted.
7B. Financial Statements. The consolidated financial
statements of the Company and its subsidiaries included in the
Private Placement Memorandum, dated February 11, 1994 the
"Private Placement Memorandum") present fairly the consolidated
financial position of the Company and its subsidiaries as of and
at the dates indicated and the consolidated results of their
operations for the periods specified and said consolidated
financial statements have been prepared in conformity with
generally accepted accounting principles applied on a basis
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consistent in all material respects during the periods involved
and the independent certified public accountants who certified
the financial statements included in the Private Placement
Memorandum are independent public accountants as required by the
Securities Act of 1933 and the rules and regulations thereunder.
7C. Actions Pending. There is no action, suit, investi-
gation or proceeding pending or, to the knowledge of the Company,
threatened against the Company or any of its Subsidiaries, or any
properties or rights of the Company or any of its Subsidiaries,
by or before any court, arbitrator or administrative or
governmental body which has not been previously disclosed to the
Purchasers and which might result in any material adverse change
in the business, condition or operations of the Company and its
Subsidiaries, taken as a whole.
7D. Outstanding Debt. Neither the Company nor any of its
Subsidiaries has outstanding any debt with a term in excess of
one year except as disclosed in the Private Placement Memorandum.
There exists no default under the provisions of any instrument
evidencing such Debt or of any agreement relating thereto.
7E. Title to Properties. The Company has and each of its
Subsidiaries has good and indefeasible title to its respective
real properties (other than properties which it leases) and good
title to all of its other respective properties and assets,
subject to no Lien of any kind, other than a lien held by Firstar
Bank Milwaukee, N.A. pursuant to a security agreement dated
September 27, 1993 and except for any liens, encumbrances or
defects in title which are not material to the Company and its
Subsidiaries, taken as whole. All leases necessary in any
material respect for the conduct of the respective businesses of
the Company and its Subsidiaries are valid and subsisting and are
in full force and effect.
7F. Taxes. The Company has and each of its Subsidiaries
has filed all Federal, State and other income tax returns which,
to the best knowledge of the officers of the Company, are
required to be filed, and each has paid all taxes as shown on
such returns and on all assessments received by it to the extent
that such taxes have become due, except such taxes as are being
contested in good faith by appropriate proceedings for which
adequate reserves have been established in accordance with
generally accepted accounting principles.
7G. Conflicting Agreements and Other Matters. Neither the
Company nor any of its Subsidiaries is a party to any contract or
agreement or subject to any charter or other corporate
restriction which materially and adversely affects its business,
property or assets, or financial condition. Neither the
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execution nor delivery of this Agreement or the Debentures, nor
the offering, issuance and sale of the Debentures, nor
fulfillment of nor compliance with the terms and provisions
hereof and of the Debentures will conflict with, or result in a
breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the
creation of any Lien upon any of the properties or assets of the
Company or any of its Subsidiaries pursuant to, the charter or
by-laws of the Company or any of its Subsidiaries, any award of
any arbitrator or any agreement (including any agreement with
stockholders), instrument, order, judgment, decree, statute, law,
rule or regulation to which the Company or any of its
Subsidiaries is subject. Neither the Company nor any of its
Subsidiaries is a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness of the
Company or such Subsidiary, any agreement relating thereto or any
other contract or agreement (including its charter) which limits
the amount of, or otherwise imposes restrictions on the incurring
of, Debt of the Company of the type to be evidenced by the
Debentures except as set forth in the agreements listed in
Exhibit C attached hereto.
7H. Offering of Debentures. Neither the Company nor, to
the Company's knowledge, any agent acting on its behalf has,
directly or indirectly, offered the Debentures or any similar
security of the Company for sale to, or solicited any offers to
buy the Debentures or any similar security of the Company from,
or otherwise approached or negotiated with respect thereto with,
any Person other than institutional investors, and neither the
Company nor any agent acting on its behalf has taken or will take
any action which would subject the issuance or sale of the
Debentures to the provisions of section 5 of the Securities Act
or to the provisions of any securities or Blue Sky law of any
applicable jurisdiction.
7I. Governmental Consent. Neither the nature of the
Company or of any Subsidiary, nor any of their respective
businesses or properties, nor any relationship between the
Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offering, issuance, sale or
delivery of the Debentures is such as to require any
authorization, consent, approval, exemption or other action by or
notice to or filing with any court or administrative or
governmental body (other than routine filings after the date of
closing with the Securities and Exchange Commission and/or any
state securities commissions) in connection with the execution
and delivery of this Agreement, the offering, issuance, sale or
delivery of the Debentures or fulfillment of or compliance with
the terms and provisions hereof or of the Debentures.
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7J. Disclosure. Neither this Agreement nor any other
document, certificate or statement furnished to you by or on
behalf of the Company in connection herewith contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements contained herein and
therein not misleading. There is no fact peculiar to the Company
or any of its Subsidiaries which materially adversely affects the
business, business prospects, property or assets, or financial
condition of the Company or any of its Subsidiaries and which has
not been set forth in this Agreement or in the other documents,
certificates and statements furnished to you by or on behalf of
the Company prior to the date hereof in connection with the
transactions contemplated hereby.
7K. Rule 144A Eligibility. The Debentures are eligible for
resale pursuant to Rule 144A and will not be, at the Closing
Time, of the same class as securities listed on a national
securities exchange registered under Section 6 of the U.S.
Securities Exchange Act of 1934, as amended (the "1934 Act"), or
quoted in a U.S. automated interdealer quotation system.
7L. No General Solicitation. None of the Company, its
affiliates (as defined in Rule 501(b) under the 1933 Act) or any
person (other than the Purchasers, as to whom the Company makes
no representation) acting on its behalf has engaged, in
connection with the offering of the Securities, in any form of
general solicitation or general advertising within the meaning of
Rule 502(c) under the 1933 Act.
7M. No Registration Required. Subject to compliance by the
Purchasers with the representations and warranties set forth in
Section 8 and the procedures set forth in Section 9 hereof, it is
not necessary in connection with the offer, sale and delivery of
the Securities to the Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Private
Placement Memorandum to register the Debentures under the 1933
Act.
8. REPRESENTATIONS OF THE PURCHASERS.
8A. Each Purchaser hereby represents and warrants to, and
agrees with, the Company that it (i) is a "qualified
institutional buyer" within the meaning of Rule 144A under the
1933 Act and an "accredited investor" within the meaning of
Regulation D under the 1933 Act; (ii) has not and will not
solicit offers for, or offer or sell, Debentures by means of any
general solicitation or general advertising within the meaning of
Rule 502(c) under Regulation D under the 1933 Act; and (iii) will
otherwise act in accordance with the terms and conditions set
forth in this Agreement, including Section 9 hereof, in
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connection with the placement of the Debentures contemplated
hereby.
9. SUBSEQUENT OFFERS AND RESALES OF THE SECURITIES.
Each of the Purchasers and the Company hereby establish and
agree to observe the following procedures in connection with the
offer and sale by the Purchasers of the Debentures.
9A. Offers and Sales Only to Institutional Accredited
Investors or Qualified Institutional Buyers. Offers and sales of
the Debentures will be made by the Purchasers only to (i)
institutional investors that are reasonably believed to qualify
as accredited investors (as defined in Rule 501(a) under the 1933
Act) (each such institutional investor being hereinafter referred
to as an "institutional accredited investor"), or (ii), in the
case of Debentures resold or otherwise transferred pursuant to
Rule 144A, to institutional investors that are reasonably
believed to qualify as qualified institutional buyers (as therein
defined) (each such institutional investor being hereinafter
referred to as a "qualified institutional buyer").
9B. No General Solicitation. The Debentures will be
offered by the Purchasers only by approaching prospective
purchasers on an individual basis. No general solicitation or
general advertising (as such terms are used in Regulation D under
the 1933 Act) will be used in connection with the offering of the
Debentures.
9C. Purchases by Non-Bank Fiduciaries. In the case of a
non-bank purchaser of a Security acting as a fiduciary for one or
more third parties, in connection with an offer and sale to such
purchaser pursuant to clause (a) above, each third party shall,
in the judgment of the applicable Purchaser, be an institutional
accredited investor or a qualified institutional buyer.
9D. Minimum Principal Amount. No sale of the Debentures to
any one purchaser will be for less than U.S. $100,000 principal
amount and no Security will be issued in a smaller principal
amount. If the purchaser is a non-bank fiduciary acting on
behalf of others, each person for whom it is acting must purchase
at least U.S. $100,000 principal amount of the Debentures.
9E. Restrictions on Transfer. The transfer restrictions
and the other provisions set forth in the Debentures shall apply
to the Debentures except as otherwise agreed by the Company and
the Purchasers. Following the sale of the Debentures by the
Purchasers to subsequent purchasers pursuant to the terms hereof,
no Purchaser shall be liable or responsible to the Company for
any losses, damages or liabilities suffered or incurred by the
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Company, including any losses, damages or liabilities under the
1933 Act, arising from or relating to any resale or transfer of
any Debenture.
9F. Company to Provide Certain Information. The Company
will make available, upon request, to any seller of the
Debentures the information specified in Rule 144A(d)(1) under the
Securities Act.
10. DEFINITIONS. For the purpose of this Agreement the
following terms shall have the meanings specified with respect
thereto below:
"Affiliate" means any Person (i) which directly or
indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Company, (ii)
which beneficially owns or holds 5% or more of any class of the
voting stock of the Company or (iii) which beneficially owns or
holds 5% or more of the voting stock (or in the case of a Person
which is not a corporation, 5% or more of the equity interest) of
the Company or a Subsidiary thereof. The term "control" means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract
or otherwise.
"Capitalized Lease" shall mean any rental obligation
which, under generally accepted accounting principles, is or will
be required to be capitalized on the books of the Company or any
Subsidiary, taken at the amount thereof accounted for as
indebtedness (net of interest expense) in accordance with such
principles.
"Consolidated Net Worth", shall mean Stockholders'
Equity plus the unallocated Allowance for Loan Losses plus
Deferred Loan Fees.
"Consolidated Tangible Equity Capital", shall mean
Consolidated Net Worth minus Goodwill.
"Event of Default" shall mean any of the events
specified in paragraph 6A, provided that there has been satisfied
any requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further
condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
"Funded Indebtedness" shall mean all Indebtedness that
matures more than one year from the date of creation thereof, or
that is extendible or renewable at the option of any party
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thereto to a date more than one year from the date of creation
thereof (whether or not renewed or extended).
"Indebtedness" shall mean all indebtedness, liabilities
and other obligations, direct or contingent (other than deferred
income taxes and other credits, outside minority interests and
items of Stockholders' Equity) which would, in accordance with
generally accepted accounting principles, be classified upon the
consolidated balance sheet of the Company as liabilities, but in
any event including without limitation:
1) all guarantees, other than guarantees on secured
indebtedness;
2) all indebtedness, liabilities and other
obligations arising under any conditional sale or other
title retention agreement, whether or not the rights
and remedies of the seller or lender under such
agreement in the event of default are limited to
repossession or sale of such property; provided,
however, that the terms "Funded Indebtedness" and
"Indebtedness" shall not include any obligation of the
Company or of any Subsidiary incurred in the ordinary
course of its banking, mortgage banking or trust
business, with respect to:
a) any deposits with it or funds collected by it;
b) any banker's acceptance or letter of credit issued
by it;
c) any check, note, certificate of deposit, money
order, traveler's check, draft or bill of exchange
issued, accepted or endorsed by it;
d) any discount with, borrowing from, or other
obligation to any Federal Reserve Bank, the FDIC or any
Federal Home Loan Bank (or successor organization)
which discount or borrowing is in the ordinary course
of its banking business and not incurred in connection
with any unusual or extraordinary "rescue loan" or
substantially similar investment by such Federal
Reserve Bank, the FDIC or the Federal Home Loan Bank
(or successor organization);
e) any agreement, made by it in the ordinary course
of its banking business, to purchase or repurchase
securities, loans or federal funds, or to participate
in any such purchase or repurchase;
13
f) any transaction made by it in the ordinary course
of its banking business in the nature of any extension
of credit, whether in the form of a commitment,
guarantee or otherwise, undertaken by it for the
account of a third party with the application by it of
the same banking considerations and legal lending
limits that would be applicable if the transaction were
a loan to such party;
g) any transaction in which it acts solely in a
fiduciary or agency capacity;
h) other obligations incurred by it in the ordinary
course of its banking, mortgage banking or trust
business to its customers solely in their capacities as
such;
i) any other liability or obligation of such
Subsidiary incurred in the ordinary course of its
banking business not involving any obligation for
borrowed money;
j) any borrowing under mortgage warehousing lines of
credit;
k) any borrowings under any revolving line of credit
with a maturity date of less than one year up to an
aggregate amount at any time outstanding equal to 30%
of Consolidated Net Worth; and
l) drafts outstanding or official bank checks
outstanding used to fund mortgage loan volume;
provided, however, that notwithstanding the foregoing,
Indebtedness shall not be deemed to include the
guaranty by the Company of any secured Indebtedness of
any Subsidiary which is permitted to be incurred
pursuant to subsection 2(d).
"Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"Stockholders' Equity", "Allowance for Loan Losses",
"Deferred Loan Fees", "Consolidated Assets", "Net Income",
"Consolidated Net Loss", and "Goodwill" shall be defined
according to generally accepted accounting principles applicable
to the Company and in effect on the date the Debentures are
issued.
14
"Subsidiary" shall mean: any entity (i) that is
organized under the laws of the United States of America or any
state hereof or the District of Columbia and (ii) of which at
least 50% (by number of votes) of the voting stock of such entity
and all outstanding shares of preferred stock, all outstanding
securities convertible into or exchangeable for shares of capital
stock and all outstanding warrants, rights or options to purchase
shares of capital stock of such entity are owned directly by the
Company or by another Subsidiary.
11. MISCELLANEOUS.
11A. Debenture Payments. The Company agrees that, so long
as you shall hold any Debenture, it will make payments of
principal thereof and premium, if any, and interest thereon,
which comply with the terms of this Agreement, by wire transfer
of immediately available funds for credit to your account or
accounts as specified in the Purchaser Schedule attached hereto,
or such other account or accounts in the United States as you may
designate in writing, notwithstanding any contrary provision
herein or in any Debenture with respect to the place of payment.
You agree that, before disposing of any Debenture, you will make
a notation thereon (or on a schedule attached thereto) of all
principal payments previously made thereon and of the date to
which interest thereon has been paid. The Company agrees to
afford the benefits of this paragraph 11A to any Transferee which
shall have made the same agreement as you have made in this
paragraph 11A.
11B. Indemnification. The Company agrees to pay and save
you and any Transferee harmless against liability for the payment
of the costs and expenses, including attorneys' fees, incurred by
you or any Transferee in enforcing any rights under this
Agreement or the Debentures or in responding to any subpoena or
other legal process issued in connection with this Agreement or
the transactions contemplated hereby or by reason of your or any
Transferee's having acquired any Debenture, including without
limitation costs and expenses incurred in any bankruptcy case.
The obligations of the Company under this paragraph 11B shall
survive the transfer of any Debenture or portion thereof or
interest therein by you or any Transferee and the payment of any
Debenture.
11C. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein
or made in writing by or on behalf of the Company in connection
herewith shall survive the execution and delivery of this
Agreement and the Debentures, the transfer by you of any
Debenture or portion thereof or interest therein and the payment
of any Debenture, and may be relied upon by any subsequent
15
purchaser, regardless of any investigation made at any time by or
on behalf of you or any subsequent purchaser. Subject to the
preceding sentence, this Agreement and the Debentures embody the
entire agreement and understanding between you and the Company
and supersede all prior agreements and understandings relating to
the subject matter hereof.
11D. Successors and Assigns. All covenants and other
agreements in this Agreement contained by or on behalf of either
of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto
(including, without limitation, any Transferee) whether so
expressed or not.
11E. Notices. All written communications provided for
hereunder shall be sent by first class mail or nationwide
overnight delivery service (with charges prepaid) and (i) if to
you, addressed to you at the address specified for such
communications in the Purchaser Schedule attached hereto, or at
such other address as you shall have specified to the Company in
writing, (ii) if to any other holder of any Debenture, addressed
to such other holder at such address as such other holder shall
have specified to the Company in writing or, if any such other
holder shall not have so specified an address to the Company,
then addressed to such other holder in care of the last holder of
such Debenture which shall have so specified an address to the
Company, and (iii) if to the Company, addressed to it at 1070
East Main Street, Owosso, Michigan 48867, Attention: Thomas F.
Menacher, or at such other address as the Company shall have
specified to the holder of each Debenture in writing; provided,
however, that any such communication to the Company may also, at
the option of the holder of any Debenture, be delivered by any
other means either to the Company at its address specified above
or to any officer of the Company.
11F. Descriptive Headings. The descriptive headings of the
several paragraphs of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
11G. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall
be governed by, the law of the State of New York.
11H. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one
such counterpart.
16
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement between you and the Company.
Very truly yours,
REPUBLIC BANCORP INC.
By /s/ Thomas F. Menacher
-----------------------
Title: CHIEF FINANCIAL
OFFICER
The foregoing Agreement is
hereby accepted as of the
date first above written.
SCUDDER, STEVENS & CLARK, INC.
By:
--------------------------
Title:
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
By:
--------------------------
Title:
COLUMBUS LIFE INSURANCE COMPANY
By:
--------------------------
Title:
By:
--------------------------
Title:
MUTUAL OF AMERICA LIFE INSURANCE COMPANY
By:
--------------------------
Title:
17
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement between you and the Company.
Very truly yours,
REPUBLIC BANCORP INC.
By
-----------------------
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
SCUDDER, STEVENS & CLARK, INC.
By: /s/ John Schaefer
--------------------------
Title: Managing Director
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
By:
--------------------------
Title:
COLUMBUS LIFE INSURANCE COMPANY
By:
--------------------------
Title:
By:
--------------------------
Title:
MUTUAL OF AMERICA LIFE INSURANCE COMPANY
By:
--------------------------
Title:
17
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement between you and the Company.
Very truly yours,
REPUBLIC BANCORP INC.
By
-----------------------
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
SCUDDER, STEVENS & CLARK, INC.
By:
--------------------------
Title:
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
By: /s/ Conaught M. Troutman
--------------------------
Title: Vice President-Securities
COLUMBUS LIFE INSURANCE COMPANY
By:
--------------------------
Title:
By:
--------------------------
Title:
MUTUAL OF AMERICA LIFE INSURANCE COMPANY
By:
--------------------------
Title:
17
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement between you and the Company.
Very truly yours,
REPUBLIC BANCORP INC.
By
-----------------------
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
SCUDDER, STEVENS & CLARK, INC.
By:
--------------------------
Title:
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
By:
--------------------------
Title:
COLUMBUS LIFE INSURANCE COMPANY
By: /s/ W. F. Ledwin
--------------------------
Title: Vice President
By: /s/ D. J. Wuebbling
--------------------------
Title: Vice President
MUTUAL OF AMERICA LIFE INSURANCE COMPANY
By:
--------------------------
Title:
17
If you are in agreement with the foregoing, please sign the
form of acceptance on the enclosed counterpart of this letter and
return the same to the Company, whereupon this letter shall
become a binding agreement between you and the Company.
Very truly yours,
REPUBLIC BANCORP INC.
By
-----------------------
Title:
The foregoing Agreement is
hereby accepted as of the
date first above written.
SCUDDER, STEVENS & CLARK, INC.
By:
--------------------------
Title:
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA
By:
--------------------------
Title:
COLUMBUS LIFE INSURANCE COMPANY
By:
--------------------------
Title:
By:
--------------------------
Title:
MUTUAL OF AMERICA LIFE INSURANCE COMPANY
By: /s/ Robert Stuart
--------------------------
Title: Senior Executive
Vice President
17
PURCHASER SCHEDULE
Aggregate
Principal
Amount of
Debentures
to be
Purchased
SCUDDER, STEVENS & CLARK, INC. $15,000,000
(1) Address for all notices relating to payments:
Scudder, Stevens & Clark, Inc.
600 Vine Street
Suite 2000
Cincinnati, OH 45202-2430
Attention: John Schaefer, Managing Director
(2) Address for all other communications and
notices:
Scudder, Stevens & Clark, Inc.
600 Vine Street
Suite 2000
Cincinnati, OH 45202-2430
Attention: John Schaefer, Managing Director
PURCHASER SCHEDULE
Aggregate
Principal
Amount of
Debentures
to be
Purchased
BUSINESS MEN'S ASSURANCE COMPANY OF AMERICA $5,000,000
(I) Address for all notices relating to payments:
Business Men's Assurance
P.O. Box 419458
Kansas City, MO 64141
Attention: Investment Accounting - 876
(2) Address for all other communications and
notices:
Business Men's Assurance
P.O. Box 419458
Kansas City, MO 64141
Attention: Investment Department - 1865
PURCHASER SCHEDULE
Aggregate
Principal
Amount of
Debentures
to be
Purchased
COLUMBUS LIFE INSURANCE COMPANY $2,500,000
(1) Address for all notices relating to payments:
Columbus Life Insurance Company
P. O. Box 1119
Cincinnati, OH 45201
Attention: Treasurer
(2) Address for all other communications and
notices:
Columbus Life Insurance Company
P. O. Box 1119
Cincinnati, OH 45201
Attention: Treasurer
PURCHASER SCHEDULE
Aggregate
Principal
Amount of
Debentures
to be
Purchased
MUTUAL OF AMERICA LIFE INSURANCE COMPANY $2,500,000
(1) Address for all notices relating to payments:
Mutual of America Capital Management
Corporation
666 Fifth Avenue, 19th Floor
New York, NY 10103
Attention: Investments - Private Placement
Group
(2) Address for all other communications and
notices:
Mutual of America Capital Management
Corporation
666 Fifth Avenue, 19th Floor
New York, NY 10103
Attention: Investments - Private Placement
Group
EXHIBIT A
[FORM OF DEBENTURE]
THIS DEBENTURE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
DEBENTURE PURCHASE AGREEMENT HEREINAFTER REFERRED TO AND IS REGISTERED
IN THE NAME OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), OR A NOMINEE THEREOF. THIS GLOBAL SECURITY MAY NOT BE
EXCHANGED, IN WHOLE OR IN PART, FOR A SECURITY REGISTERED IN THE NAME
OF ANY PERSON OTHER THAN DTC OR A NOMINEE THEREOF, AND MAY NOT BE
TRANSFERRED, IN WHOLE OR IN PART, EXCEPT IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE DEBENTURE PURCHASE AGREEMENT. UNLESS
THIS DEBENTURE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO
REPUBLIC BANCORP INC. (THE "COMPANY") OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE
FOR THIS DEBENTURE IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
THIS DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER
HEREOF, BY ITS ACCEPTANCE HEREOF, AGREES FOR THE BENEFIT OF
THE COMPANY THAT THIS DEBENTURE MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) SO LONG
AS THIS DEBENTURE IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER, AS DEFINED IN RULE 144A, THAT IS
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION IN ACCORDANCE WITH RULE 144 UNDER THE
SECURITIES ACT (IF AVAILABLE), (4) TO AN INSTITUTIONAL
INVESTOR THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE
501(a)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT
("INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS
DEBENTURE FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER
INSTITUTIONAL ACCREDITED INVESTOR FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT,
AND A SIGNED CERTIFICATION LETTER (A FORM OF WHICH MAY BE
OBTAINED FROM THE COMPANY) IS DELIVERED BY THE TRANSFEREE TO
THE COMPANY OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES. BY PURCHASING THIS DEBENTURE, THE
HOLDER HEREOF AGREES AND REPRESENTS FOR THE BENEFIT OF THE
COMPANY THAT (A) IT IS (1) A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A OR (2) AN INSTITUTION THAT
IS AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THIS
DEBENTURE FOR INVESTMENT PURPOSES FOR ITS OWN ACCOUNT OR THE
ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT AND (B) IT WILL NOTIFY ANY PURCHASER OF
THIS DEBENTURE FROM IT OF THE RESALE RESTRICTIONS REFERRED
TO ABOVE. THIS LEGEND WILL BE REMOVED AFTER THE EXPIRATION
OF THREE YEARS FROM THE ORIGINAL ISSUANCE OF THE DEBENTURE
EVIDENCED HEREBY.
REPUBLIC BANCORP INC.
7.17% SENIOR DEBENTURE DUE APRIL 1, 2001
$25,000,000 March 31, 1994
FOR VALUE RECEIVED, the undersigned, REPUBLIC BANCORP INC.
(herein called the "Company"), a corporation organized and existing
under the laws of the State of Michigan, hereby promises to pay to
Cede & Co., as nominee for the Depository Trust Company, or registered
assigns the principal sum of $25,000,000 on April 1, 2001,
("Maturity") with interest (computed on the basis of a 360-day
year-30-day month) on the unpaid balance thereof at the rate of 7.17%
per annum from the date hereof, payable semiannually on the 1st day of
April and October in each year (each, an "Interest Payment Date"),
commencing with the October 1 next succeeding the date hereof, until
the principal hereof shall have become due and payable.
In the case where the applicable Interest Payment Date or
Maturity with respect hereto, as the case may be, does not fall on a
Business Day, payment of principal or interest otherwise payable on
such day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or at Maturity and no interest shall accrue
with respect to such payment for the period from and after the
Interest Payment Date or such Maturity, as the case may be, to the
date of payment.
The Debentures (including all of the obligations of the Company
hereunder) are direct, unconditional obligations of the Company and
rank without preference or priority among themselves and at least pari
passu with all other existing and future unsecured and unsubordinated
indebtedness of the Company.
The Debentures will not be subject to any sinking fund and,
except as described below, will not be redeemable or repayable prior
to their Stated Maturity.
Payments of principal, premium, if any, and interest are to be
made at such other place as the holder hereof shall designate to the
Company in writing, in lawful money of the United States of America.
This global Debenture is issued pursuant to a Debenture Purchase
Agreement, dated as of March 30, 1994 (the "Debenture Purchase
Agreement") between the Company and the respective original purchasers
of the Debentures named in the Purchaser Schedule attached thereto and
is entitled to the benefits thereof.
In case an Event of Default, as defined in the Debenture Purchase
Agreement, shall occur and be continuing, the principal of this
Debenture may be declared or otherwise become due and payable in the
manner and with the effect provided in the Debenture Purchase
Agreement.
The Debenture Purchase Agreement permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of Holders of the
Debentures to be affected thereby by the Company with the consent of
the Holders of 66 2/3% of the aggregate principal amount of Debentures
at the time outstanding. The Debenture Purchase Agreement also
contains provisions permitting the Holders of a majority in principal
amount of the outstanding Debentures to waive compliance by the
Company with certain provisions of the Debenture Purchase Agreement.
Any such consent or waiver by or behalf of the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future
Holders of this Security and of any Security issued upon the
registration or transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Security.
No provision of this Security or of the Debenture Purchase
Agreement shall alter or impair the obligations of the Company, which
are absolute and unconditional, to pay the principal of and interest
on this Security at the time, place, and rate herein prescribed.
This Debenture shall be construed and enforced in accordance with
the law of the State of New York.
REPUBLIC BANCORP INC.
By
-------------------------------------
Chief Financial Officer
By
-------------------------------------
President and Chief Executive Officer
EXHIBIT B
[FORM OF OPINION OF COMPANY'S COUNSEL]
[Date of Closing]
[Names and addresses of
purchasers]
Dear Sirs:
We have acted as counsel for Republic Bancorp Inc. (the
"Company") in connection with the Agreement, dated as of March _,
1994, between the Company and each of you (the "Debenture Purchase
Agreement"), pursuant to which the Company has issued to you today
7.17% Senior Debentures of the Company due _________ __, 2001 in the
aggregate principal amount of $25,000,000. All terms used herein that
are defined in the Debenture Purchase Agreement have the respective
meanings specified in the Debenture Purchase Agreement.
In this connection, we have examined such certificates of public
officials, certificates of officers of the Company and copies
certified to our satisfaction of corporate documents and records of
the Company and of other papers, and have made such other
investigations, as we have deemed relevant and necessary as a basis
for our opinion hereinafter set forth. We have relied upon such
certificates of public officials and of officers of the Company with
respect to the accuracy of material factual matters contained therein
which were not independently established. With respect to the opinion
expressed in paragraph 3 below, we have also relied upon the
representation made by each of you in the first sentence of paragraph
9 of the Debenture Purchase Agreement.
Based on the foregoing it is our opinion that:
1. The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Michigan.
Each Subsidiary is a corporation duly organized and validly existing
in good standing under the laws of its jurisdiction of incorporation.
The Company and its Subsidiaries have the corporate power to carry on
their respective businesses as now being conducted.
2. Assuming that the Debentures have been duly authorized
by the Company, when delivered and paid for by the Purchasers in
accordance with the terms of the Debenture Purchase Agreement, the
Debentures will constitute the legal, valid and binding obligations of
the Company.
3. The Debentures conform in all material respects to the
descriptions thereof in the Private Placement Memorandum.
4. There are no laws or regulations, or any pending or
threatened legal or governmental proceedings or any contracts or
documents to which the Company is a party, that are material to the
Company's operations which are not described in the Private Placement
Memorandum.
5. No consent, approval, authorization, order, decree,
registration or qualification of or filing with any court or
governmental authority or agency is necessary or required for the
performance by the Company of its obligations hereunder or in the
Private Placement Memorandum, except such as may be required by state
securities or Blue Sky law.
6. To the best of such counsel's knowledge, the execution,
delivery and performance by the Company of the Debenture Purchase
Agreement and the consummation of the transactions contemplated
therein will not conflict with or constitute a breach of, any
applicable law or any rule, administrative regulation, judgment or
order of any governmental agency or body or any administrative or
court decree thereof.
EXHIBIT C
LIST OF AGREEMENTS RESTRICTING DEBT
NONE