EXHIBIT (4)(H)
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of September 20, 2001 (this
"Trust Agreement"), among (i) REPUBLIC BANCORP, INC., a Michigan corporation
(the "Depositor"), (ii) WILMINGTON TRUST COMPANY, a Delaware banking
corporation, as trustee, and (iii) Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx and
Xxxxxx Xxxxx, each an individual, as trustees (each of such trustees in (ii) and
(iii) a "Trustee" and collectively, the "Trustees"). The Depositor and the
Trustees hereby agree as follows:
1. The trust created hereby (the "Trust") shall be known as
"Republic Capital Trust I" in which name the Trustees, or the Depositor to the
extent provided herein, may engage in the transactions contemplated hereby, make
and execute contracts, and xxx and be sued.
2. The Depositor hereby assigns, transfers, conveys and sets
over to the Trustees the sum of $25. The Trustees hereby acknowledge receipt of
such amount in trust from the Depositor, which amount shall constitute the
initial trust estate. The Trustees hereby declare that they will hold the trust
estate in trust for the Depositor. It is the intention of the parties hereto
that the Trust created hereby constitutes a business trust under Chapter 38 of
Title 12 of the Delaware Code, 12 Del. C. Section 3801, et seq. (the "Business
Trust Act"), and that this document constitutes the governing instrument of the
Trust. The Trustees are hereby authorized and directed to execute and file a
certificate of trust with the Delaware Secretary of State in accordance with the
provisions of the Business Trust Act.
3. The Depositor and the Trustees will enter into an amended
and restated Trust Agreement, satisfactory to each such party and substantially
in the form included as an exhibit to the 1933 Act Registration Statement (as
defined below), to provide for the contemplated operation of the Trust created
hereby and the issuance of the Preferred Securities and Common Securities
referred to therein. Prior to the execution and delivery of such amended and
restated Trust Agreement, the Trustees shall not have any duty or obligation
hereunder or with respect to the trust estate, except as otherwise required by
applicable law or as may be necessary to obtain prior to such execution and
delivery any licenses, consents or approvals required by applicable law or
otherwise.
4. The Depositor and the Trustees hereby authorize and direct
the Depositor, as the sponsor of the Trust, (i) to file with the Securities and
Exchange Commission (the "Commission") and execute, in each case on behalf of
the Trust, (a) the Registration Statement on Form S-3 (the "1933 Act
Registration Statement"), including any pre-effective or post-effective
amendments to the 1933 Act Registration Statement, relating to the registration
under the Securities Act of 1933, as amended, of the Preferred Securities of the
Trust and possibly certain other securities and (b) a Registration Statement on
Form 8-A (the "1934 Act Registration Statement") (including all pre-effective
and post-effective amendments thereto) relating to the registration of the
Preferred Securities of the Trust under the Securities Exchange Act of 1934, as
amended; (ii) to file with the Nasdaq National Market or a national stock
exchange (each, an "Exchange") and execute on behalf of the Trust one or more
listing applications and all other
applications, statements, certificates, agreements and other instruments as
shall be necessary or desirable to cause the Preferred Securities to be included
in or listed on any of the Exchanges; (iii) to file and execute on behalf of the
Trust such applications, reports, surety bonds, irrevocable consents,
appointments of attorney for service of process and other papers and documents
as shall be necessary or desirable to register the Preferred Securities under
the securities or blue sky laws of such jurisdictions as the Depositor, on
behalf of the Trust, may deem necessary or desirable; and (iv) to execute on
behalf of the Trust that certain Underwriting Agreement relating to the
Preferred Securities, among the Trust, the Depositor and the several
Underwriters named therein, substantially in the form included as an exhibit to
the 1933 Act Registration Statement. In the event that any filing referred to in
clauses (i), (ii) and (iii) above is required by the rules and regulations of
the Commission, an Exchange or state securities or blue sky laws, to be executed
on behalf of the Trust by one or more of the Trustees, each of the Trustees, in
its, his or her capacity as a Trustee of the Trust, is hereby authorized and, to
the extent so required, directed to join in any such filing and to execute on
behalf of the Trust any and all of the foregoing, it being understood that
Wilmington Trust Company in its capacity as a Trustee of the Trust shall not be
required to join in any such filing or execute on behalf of the Trust any such
document unless required by the rules and regulations of the Commission, the
Exchange or state securities or blue sky laws. In connection with the filings
referred to above, the Depositor and Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxxx and
Xxxxxx Xxxxx, each as Trustees and not in their individual capacities, hereby
constitutes and appoints Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxxxx, and each of
them, as its true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for the Depositor or such Trustee or in the
Depositor's or such Trustees' name, place and stead, in any and all capacities,
to sign any and all amendments (including post-effective amendments) to the 1933
Act Registration Statement and the 1934 Act Registration Statement and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, the Exchange and administrators of the state
securities or blue sky laws, granting unto said attorneys-in-fact and agents
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in connection therewith, as fully to all
intents and purposes as the Depositor or such Trustee might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their respective substitute or substitutes, shall do
or cause to be done by virtue hereof.
5. This Trust Agreement may be executed in one or more
counterparts.
6. The number of Trustees initially shall be four (4) and
thereafter the number of Trustees shall be such number as shall be fixed from
time to time by a written instrument signed by the Depositor which may increase
or decrease the number of Trustees; provided, however, that to the extent
required by the Business Trust Act, one Trustee shall either be a natural person
who is a resident of the State of Delaware or, if not a natural person, an
entity which has its principal place of business in the State of Delaware and
otherwise meets the requirements of applicable Delaware law. Subject to the
foregoing, the Depositor is entitled to appoint or remove without cause any
Trustee at any time. The Trustees may resign upon thirty (30) days' prior notice
to the Depositor.
7. (a) The Trustee and its officers, directors, agents and
servants (collectively, the "Fiduciary Indemnified Persons") shall not
be liable, responsible or
2
accountable in damages or otherwise to the Trust, the Depositor, the
Trustees or any holder of the Trust Securities (the Trust, the
Depositor and any holder of the Trust Securities being a "Covered
Person") for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by the Fiduciary Indemnified Persons in
good faith on behalf of the Trust and in a manner the Fiduciary
Indemnified Persons reasonably believed to be within the scope of
authority conferred on the Fiduciary Indemnified Persons by this Trust
Agreement or by law, except that the Fiduciary Indemnified Persons
shall be liable for any such loss, damage or claim incurred by reason
of the Fiduciary Indemnified Person's negligence or willful misconduct
with respect to such acts or omissions.
(b) The Fiduciary Indemnified Persons shall be fully
protected in relying in good faith upon the records of the Trust and
upon such information, opinions, reports or statements presented to the
Trust by any person as to matters the Fiduciary Indemnified Persons
reasonably believes are within such other person's professional or
expert competence and who has been selected with reasonable care by or
on behalf of the Trust, including information, opinions, reports or
statements as to the value and amount of the assets, liabilities,
profits, losses, or any other facts pertinent to the existence and
amount of assets from which distributions to holders of Trust
Securities might properly be paid.
(c) The Depositor agrees, to the fullest extent permitted
by applicable law, (i) to indemnify and hold harmless each Fiduciary
Indemnified Person, or any of its officers, directors, shareholders,
employees, representatives or agents, from and against any loss,
damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by the Fiduciary Indemnified Persons by reason of
the creation, operation or termination of the Trust in a manner the
Fiduciary Indemnified Persons reasonably believed to be within the
scope of authority conferred on the Fiduciary Indemnified Persons by
this Trust Agreement of Trust, except that no Fiduciary Indemnified
Persons shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by the Fiduciary Indemnified Persons by reason
of negligence or willful misconduct with respect to such acts or
omissions, and (ii) to advance expenses (including legal fees) incurred
by a Fiduciary Indemnified Person in defending any claim, demand,
action, suit or proceeding shall, from time to time, prior to the final
disposition of such claim, demand, action, suit or proceeding, upon
receipt by the Trust of an undertaking by or on behalf of such
Fiduciary Indemnified Persons to repay such amount if it shall be
determined that such Fiduciary Indemnified Person is not entitled to be
indemnified as authorized in the preceding subsection.
(d) The provisions of Section 7 shall survive the
termination of this Trust Agreement or the earlier resignation or
removal of the Fiduciary Indemnified Persons.
8. This Trust Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware (without regard to conflict
of laws of principles).
3
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed as of the day and year first above written.
REPUBLIC BANCORP, INC.,
as Depositor
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President and Chief Executive Officer
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ W. Xxxxx Xxxxxxxxxx
-----------------------------------------
Name: W. Xxxxx Xxxxxxxxxx
Title: Vice President
/s/ Xxxx X. Xxxxxxx
----------------------------------------------
Xxxx X. Xxxxxxx, as Trustee
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------
Xxxxxx X. Xxxxxxxx, as Trustee
/s/ Xxxxxx Xxxxx
----------------------------------------------
Xxxxxx Xxxxx, as Trustee
4
