EXHIBIT 4(C)
DEBENTURE PURCHASE AGREEMENT
DATED AS OF JANUARY 29, 1996
==============================================================================
REPUBLIC BANCORP INC.
$9,000,000
6.75% SENIOR DEBENTURES DUE
January 15, 2001
AND
$13,500,000
6.95% SENIOR DEBENTURES DUE
January 15, 2003
----------------------------
DEBENTURE PURCHASE AGREEMENT
----------------------------
Dated as of January 29, 1996
==============================================================================
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 January 29, 1996
American United Life Insurance
1 American Square
Indianapolis, IN 46206
State Life Insurance Co.
c/o American United Life Insurance
1 American Square
Indianapolis, IN 46206
Mutual of America Life Insurance Co.
320 Park Avenue
9th Floor
New York, NY 10022
Great Northern Insured Annuity Corporation
Two Union Square
Suite 5600
Seattle, WA 98101
Mega Life & Health Insurance Co.
100 Chetwynd Drive
Suite 202
Rosemont, PA 19010
Provident Mutual Life Insurance Company
1600 Market Street
4th Floor
Philadelphia, PA 19101
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 to be issued in global form, in the
aggregate principal amount of $22,500,000, to be dated the date of issue
thereof, $9,000,000 of which Debentures will mature on January 15, 2001 (the
"2001 Debentures)
and $13,500,000 of which Debentures will mature on January 15, 2003 (the "2003
Debentures") and, collectively with the 2001 Debentures, the "Debentures") as
the case may be. The 2001 Debentures and the 2003 Debentures shall bear
interest on the unpaid balance thereof from January 29, 1996 until the
principal thereof shall have become due and payable at the rate of 6.75% and
6.95% per annum, respectively, and paid semiannually beginning October 1,
1996, respectively. The Debentures will be substantially in the forms of
Exhibit A-1 and A-2 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. The 2001 Debentures and the
2003 Debentures shall be treated for purposes of this Debenture Purchase
Agreement as a single series and class of Debentures, except to the extent
expressly set forth herein.
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 2001 Debentures or
2003 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 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 is 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
2
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.
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:
3
(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 $95 million or 7.0% of Consolidated Assets during the term
ending December 31, 1996 and 6.5% of Consolidated Assets thereafter.
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 (other than
dividends or distributions payable in its capital stock), 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 or (ii) immediately after, and after giving
effect to such restricted payment, the aggregate amount of all restricted
payments declared or made after December 31, 1995 would not exceed the sum of
a) $6,000,000, plus b) 50% (or 100% in the case of a deficit) of Consolidated
Net Income for the period commencing December 31, 1995 and ending on and
including the date such restricted payment is declared or made, plus c) 100%
of the proceeds of issuances of equity securities after December 31, 1995.
5D. Nonperforming Assets. The ratio of Nonperforming Assets to loans,
excluding loans held for sale, and other real estate owned will not exceed
4.0%.
5E. Double Leverage Ratio. The Double Leverage Ratio shall not exceed
125%.
5F. 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 corpora-
4
tion shall succeed to and be substituted for the Company as if such successor
corporation had been named as the Company in this Agreement.
5G. 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.
5H. Line of Business. So long as the Debentures are outstanding, the
Company will remain principally engaged in the business of banking or mortgage
banking.
5I. Financial Information. The Company shall deliver or cause to be
delivered to each holder of the Debentures:
(i) as soon as practicable after the end of each quarterly fiscal
period in each fiscal year of the Company (other than the last
quarterly fiscal period of each such fiscal year), and in any
event within 45 days thereafter: (a) a consolidated statement of
financial condition of the Company and its subsidiaries, as at the
end of such quarter, and (b) shareholders' equity of the Company
and its subsidiaries, for such quarter and (in the case of the
second and third quarters) for the portion of the fiscal year
ending with such quarter, setting forth in each case, in
comparative form, the figures for the corresponding periods in the
previous fiscal year, all in reasonable detail, prepared in
accordance with generally accepted accounting principles, but in
such detail as is customarily applied to quarterly financial
statements, and certified as complete and correct, subject to
changes resulting from year-end adjustments, by a Senior Financial
Officer, and accompanied by the certificate required by Section
5J; and
(ii) as soon as practicable after the end of each fiscal year of
the Company, and in any event within 90 days thereafter (a)
audited consolidated statements of financial condition of the
Company and its subsidiaries, as at the end of such year, and (b)
audited consolidated statements of operations, cash
5
flows and shareholders' equity of the Company and its
subsidiaries, for such year, setting forth in the case of each
audited consolidated financial statement, in comparative form, the
figures for the previous fiscal year, all in reasonable detail,
prepared in accordance with generally accepted accounting
principles.
5J. Officer's Certificates. Each set of financial statements delivered
to each holder of the Debentures pursuant to Section 5I(i) or 5I(ii) shall be
accompanied by a certificate of a Senior Financial Officer, setting forth the
information (including detailed calculations) required in order to establish
whether the Company was in compliance with the requirements of Section 5A
through Section 5E, inclusive, and Section 5I as of the end of the period
covered by the financial statements then being furnished (including with
respect to each such section, where applicable, the calculations of the
maximum or minimum amount, ratio or percentage, as the case may be,
permissible under the terms of such sections, and the calculation of the
amount, ratio or percentage then in existence).
5K. Inspections. If an Event of Default (as defined herein) shall have
occurred and be continuing, the Company shall permit any officer, employee or
agent designated in writing by any holder, at such holder's expense, to
examine with an officer of the Company, its books of record and accounts, all
at such reasonable times as a holder may request. Prior to any inspection or
examination, each holder shall agree in writing that it will treat as
confidential, any information obtained during any such visit, inspection or
examination that is not publicly available and not disclose any such
information unless legally required to do so.
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):
(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 5 days;
6
(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 30 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 judgments is $5,000,000 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 and, if susceptible
of cure, is not cured within 60 days of notice thereof;
(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
7
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, 30 days after the Company has been in default under
(iii) above and the applicable grace period set forth therein has
expired. Holders of 66-2/3 of the aggregate principal amount of the
Debenture, 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 holders; 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 5 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 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 Agree-
8
ment, 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 December 1, 1995 (including all appendices thereto and as updated by the
press release dated January 19, 1996, 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 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, investigation or
proceeding pending or, to the knowledge of the Company,
9
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 (i) a lien
held by Firstar Bank Milwaukee, N.A. pursuant to a security agreement dated
October 1, 1993 and (ii) a mortgage loan on Republic Bancorp Mortgage Inc.'s
office pursuant to documents 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
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
10
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.
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
11
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 connection with the placement of the Debentures contemplated
hereby.
9. SUBSEQUENT OFFERS AND RESALES OF THE SECURITIES.
12
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"), and (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 Company, including
any losses, damages or liabilities under the 1933 Act, arising from or
relating to any resale or transfer of any Debenture.
13
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)(4) 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 exclusive of any
unrealized gains or losses in the available for sale security portfolios.
"Consolidated Tangible Equity Capital", shall mean Consolidated
Net Worth minus Goodwill.
"Double Leverage Ratio", shall mean period-end investments in
Subsidiaries plus period-end parent company goodwill all divided by period-end
total Stockholders' Equity.
"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
14
that is extendible or renewable at the option of any party 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,
such as:
1) all guarantees, other than guarantees on secured
indebtedness; and
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, commercial paper 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;
15
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 and mortgage
banking business not involving any obligation for borrowed
money;
j) Capitalized Leases;
k) any borrowing under mortgage warehousing lines of credit,
including revolving repurchase agreements utilized pending
securitization of pledged loans;
l) 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;
m) drafts outstanding or official bank checks outstanding used
to fund mortgage loan volume; and
n) indebtedness ranking junior to the Debentures in right of
payment or on liquidation;
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) and (k).
"Nonperforming Assets" shall mean and include non-accrual and
restructured loans and other real estate owned.
"Person" shall mean and include an individual, a partnership, a
joint venture, a corporation, a trust, an
16
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.
"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
17
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 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.
18
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.
19
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:
Senior Vice President and
Chief Financial Officer
The foregoing Agreement is
hereby accepted as of the
date first above written.
AMERICAN UNITED LIFE INSURANCE
By: /s/ KENNETH ADAMS
---------------------
Title: Vice President
STATE LIFE INSURANCE CO.
By: /s/ KENNETH ADAMS
---------------------
Title: Vice President
MUTUAL OF AMERICA LIFE INSURANCE CO.
By: Mutual of America Capital Management Corp.
By: /s/ NANCY MCAVEY
----------------------------
Title: Senior Vice President
Great Northern Insured Annuity Corporation
By: /s/ JEROME R. POWERS
-----------------------------------
Title: Vice President - Investments
20
MEGA LIFE & HEALTH INSURANCE CO.
By: /s/ PATRICK MCLAUGHLIN
-------------------------------------------------
Title: Emerald Capital Corp, Ltd, Advisor to MEGA
PROVIDENT MUTUAL LIFE INSURANCE COMPANY
By: /s/ JAMES D. KESTNER
-------------------------------------------------
Title: Vice President
21
PURCHASER SCHEDULE
Aggregate Aggregate
Principal Principal
Amount of 2001 Amount of 2003
Debentures to Debentures to
be Purchased be Purchased
-------------- --------------
AMERICAN UNITED LIFE INSURANCE $8,000,000
<FN>
(1) Address for all notices relating to payments:
American United Life Insurance
1 American Square
Indianapolis, IN 46206
Attention: Securities Department
(2) Address for all other communications and notices:
American United Life Insurance
1 American Square
Indianapolis, IN 46206
Attention: Securities Department
PURCHASER SCHEDULE
Aggregate Aggregate
Principal Principal
Amount of 2001 Amount of 2003
Debentures to Debentures to
be Purchased be Purchased
-------------- --------------
STATE LIFE INSURANCE CO. $1,000,000
<FN>
(1) Address for all notices relating to payments:
State Life Insurance Co.
c/o American United Life Insurance
1 American Square
Indianapolis, IN 46206
Attention: Securities Department
(2) Address for all other communications and notices:
State Life Insurance Co.
c/o American United Life Insurance
1 American Square
Indianapolis, IN 46206
Attention: Securities Department
PURCHASER SCHEDULE
Aggregate Aggregate
Principal Principal
Amount of 2001 Amount of 2003
Debentures to Debentures to
be Purchased be Purchased
-------------- --------------
MUTUAL OF AMERICA LIFE
INSURANCE CO. $___________ $2,500,000
<FN>
(1) Address for all notices relating to payments:
Mutual of America Life Insurance Co.
320 Park Avenue
9th Floor
New York, NY 10022
Attention: Mutual of America Capital Management Corp.
(2) Address for all other communications and notices:
Mutual of America Life Insurance Co.
320 Park Avenue
9th Floor
New York, NY 10022
Attention: Mutual of America Capital Management Corp.
PURCHASER SCHEDULE
Aggregate Aggregate
Principal Principal
Amount of 2001 Amount of 2003
Debentures to Debentures to
be Purchased be Purchased
-------------- --------------
GREAT NORTHERN INSURED $___________ $5,000,000
ANNUITY CORPORATION
<FN>
(1) Address for all notices relating to payments:
Great Northern Insured Annuity Corporation
Two Union Square
Suite 5600
Seattle, WA 98101
Attention: Tami Henrickson
(2) Address for all other communications and notices:
Great Northern Insured Annuity Corporation
Two Union Square
Suite 5600
Seattle, WA 98101
Attention: Tami Henrickson
PURCHASER SCHEDULE
Aggregate Aggregate
Principal Principal
Amount of 2001 Amount of 2003
Debentures to Debentures to
be Purchased be Purchased
-------------- --------------
MEGA LIFE & HEALTH $___________ $3,000,000
INSURANCE CO.
<FN>
(1) Address for all notices relating to payments:
Mega Life & Health Insurance Co.
100 Chetwynd Drive
Suite 202
Rosemont, PA 19010
Attention: Patrick McLaughlin
(2) Address for all other communications and notices:
Mega Life & Health Insurance Co.
100 Chetwynd Drive
Suite 202
Rosemont, PA 19010
Attention: Patrick McLaughlin
PURCHASER SCHEDULE
Aggregate Aggregate
Principal Principal
Amount of 2001 Amount of 2003
Debentures to Debentures to
be Purchased be Purchased
-------------- --------------
PROVIDENT MUTUAL LIFE $___________ $3,000,000
INSURANCE COMPANY
<FN>
(1) Address for all notices relating to payments:
Provident Mutual Life Insurance Company
1600 Market Street
Philadelphia, PA 19101
Attention: Treasurer
(2) Address for all other communications and notices:
Provident Mutual Life Insurance Company
1600 Market Street
4th Floor
Philadelphia, PA 19101
Attention: Treasurer
EXHIBIT A-1
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.
6.75% SENIOR DEBENTURE DUE JANUARY 15, 2001
January 29, 1996
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
$9,000,000 on January 15, 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 6.75% 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 January 29, 1996 (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. This Debenture, together with the global Debenture or
definitive Debentures constituting the Company's 6.95% Senior Debentures Due
January 15, 2003 shall be deemed to constitute a single series and class of
Debentures for purposes of determining all rights and remedies available to
holders of Debentures under the Debenture Purchase Agreement, except as
otherwise expressly provided herein. All terms not defined in this Global
Debenture shall have the meanings set forth for such defined terms in the
Debenture Purchase Agreement.
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. 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 Debenture 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 _____________________________________
Senior Vice President and Chief
Financial Officer
By _____________________________________
President and Chief Operating Officer
EXHIBIT A-2
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.
6.95% SENIOR DEBENTURE DUE JANUARY 15, 2003
January 29, 1996
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
$13,500,000 on January 15, 2003, ("Maturity") with interest (computed on the
basis of a 360-day year--30-day month) on the unpaid balance thereof at the
rate of 6.95% 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 January 29, 1996 (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. This Debenture, together with the global Debenture or
definitive Debentures constituting the Company's 6.75% Senior Debentures Due
January 15, 2001 shall be deemed to constitute a single series and class of
Debentures for purposes of determining all rights and remedies available to
holders of Debentures under the Debenture Purchase Agreement, except as
otherwise expressly provided herein. All terms not defined in this Global
Debenture shall have the meanings set forth for such defined terms in the
Debenture Purchase Agreement.
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. 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 Debenture 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 _____________________________________
Senior Vice President and Chief
Financial Officer
By _____________________________________
President and Chief Operating Officer
EXHIBIT B
FORM OF OPINION OF COMPANY'S COUNSEL
January 29, 1996
Names of purchasers
Re: $9,000,000 of 6.75% Senior Debentures Due
January 15, 2001 and $13,500,00 of 6.95% Senior
Debentures Due January 15, 2003; Debenture Purchase
Agreement dated as of January 29, 1996
Ladies and Gentlemen:
We have acted as counsel for Republic Bancorp Inc. ("Company") in
connection with the captioned Debenture Purchase Agreement ("Agreement"),
pursuant to which the Company has issued to you today $9,000,000 aggregate
principal amount of 6.75% Senior Debentures due January 15, 2001 (the "2001
Debentures" and $13,500,000 aggregate principal amount of 6.95% senior
debentures of the Company due January 15, 2003 (the "2003 Debentures" and,
collectively with the 2001 Debentures, the "Debentures"). We are rendering
this opinion at the request of the Company and you pursuant to Section 3B of
the Agreement.
This opinion letter is governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord ("Accord") of the American Bar
Association Section of Business Law (1991). As a consequence, it is subject to
a number of qualifications, exceptions, definitions, limitations on coverage
and other limitations, all as more particularly described in the Accord, and
this opinion should be read in conjunction therewith. The Law covered by the
opinion expressed herein is limited to Federal Law of the United States and
the Law of the State of Michigan. Capitalized terms not otherwise defined in
this letter shall have the meanings ascribed to them in the Agreement or the
Accord, as applicable.
We have also examined copies of such records of the Company,
certificates of officers of the Company, certificates of transfer agents and
public officials and such other documents as we have deemed relevant and
necessary as the basis for our opinions set forth in paragraphs numbered 1
through 5 below. We have also relied upon the factual representations made by
the Company in the Agreement. We note that various issues and matters are
addressed in the opinion of even date of Brown & Wood.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company is a corporation duly organized and validly
existing in good standing under the laws of the State of Michigan. Mayflower
Mortgage Corporation d/b/a Republic Bancorp Mortgage Inc. ("RBMI") and Market
Street Mortgage Corporation ("Market Street"), both Michigan corporations and
subsidiaries of the Company, have each been duly incorporated and are validly
existing as corporations in good standing under the laws of the State of
Michigan. Republic Bank ("Bank"), also a subsidiary of the Company, has been
duly organized and is validly existing as a validly existing state chartered
bank under the laws of the State of Michigan. Each of the Company, RBMI,
Market Street and Bank has full corporate power and authority to carry on its
respective businesses as now being conducted.
2. The Agreement and the global Debenture representing each of
the 2001 Debentures and the 2003 Debentures initially delivered pursuant
thereto have each been duly authorized, executed and delivered by the Company.
3. The execution, delivery and performance by the Company of
its agreements and obligations in the Agreement and the Global Debenture
initially delivered thereunder do not (i) violate the Company's Constituent
Documents, or (ii) to the best of our knowledge based solely upon the
Officers' Certificate of even date herewith, breach or result in a default
under any existing obligation of the Company under any documents or other
agreements required to be or actually filed by the Company with the Securities
and Exchange Commission in accordance with the Company's obligations under the
Securities Exchange Act of 1934 or breach or otherwise violate any existing
obligation of the Company under any Court Order.
4. The execution, delivery and performance by the Company of
its agreements in the Agreement and the initial Global Debenture delivered
thereunder do not violate applicable
provisions of statutory law or regulations thereunder, except that no opinion
is expressed with respect to state or federal securities or blue sky laws.
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 under the Agreement or the initial global Debenture
delivered thereunder, except such as may be required by state or federal
securities or Blue Sky law.
The General Qualifications apply to the opinions expressed
herein.
This Opinion Letter may be relied upon by you only in
connection with the transaction anticipated by the Transaction Documents and
may not be used or relied upon by you or any other person for any purpose
whatsoever, except to the extent authorized in the Accord, without in each
instance our prior written consent.
Very truly yours,
EXHIBIT C
LIST OF AGREEMENTS RESTRICTING DEBT
1. $25,000,000 7.17% SENIOR DEBENTURES DUE 2001
DEBENTURE PURCHASE AGREEMENT