Exhibit 10.34
SUBORDINATED DEBT SECURITIES SUBSCRIPTION AGREEMENT
November 14, 2001
THIS SUBORDINATED DEBT SECURITIES SUBSCRIPTION AGREEMENT (this
"Subscription Agreement") is between the Gold Banc Corporation, Inc. (the
"Company") and MM Community Funding II, Ltd, a newly formed company with limited
liability established under the laws of the Cayman Islands (the "Purchaser").
RECITALS:
A. The Company desires to issue and sell to the Purchaser $30,000,000
principal amount of its Floating Rate Subordinated Debt Securities due 2011 (the
"Securities") to be issued pursuant to an Indenture between the Company and
Wilmington Trust Company as trustee (the "Indenture");
B. The Purchaser intends to complete an offering of its notes (the "CBO
Offering") on or about November 28, 2001 or such other business day as may be
agreed upon (the "Closing Date") by the Company and the placement agent
("Placement Agent") identified in the Placement Agreement and to use the
proceeds of the CBO Offering to, among other things, acquire the Securities from
the Company and other subordinated debt and capital securities in a quantity and
with other particular characteristics, in an aggregate, sufficient to permit the
successful completion of the CBO Offering; and
C. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF SECURITIES
1.1 Upon the execution of this Agreement, subject to the conditions
precedent set forth in Section 1.5, the Purchaser hereby agrees to purchase from
the Company the Securities with an aggregate amount of $30,000,000 at a purchase
price equal to 100% of the principal amount thereof (the "Purchase Price"). The
rights and preferences of the Securities will be set forth in the Indenture in
form and substance reasonably acceptable to the Purchaser. The Purchase Price is
payable by the Purchaser in immediately available funds to the Company's Account
No. 56593-0 at Wilmington Trust Company on the Closing Date.
1.2 The certificate for the Securities shall be delivered in definitive
form by the Company on the Closing Date to the Purchaser or its designee, and
shall be registered in the name of the Purchaser and shall represent the
aggregate liquidation amount of the Securities being purchased by the Purchaser.
1.2.1 The Purchaser acknowledges and the Company agrees that it will
not register any transfer of the Securities not made in accordance with
Regulation S, pursuant to
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registration under the Securities Act of 1933, as amended (the "Securities Act")
or pursuant to an available exemption from registration.
1.3 The Placement Agreement, dated November 14, 2001 (the "Placement
Agreement"), between the Company and the Placement Agent identified therein
includes certain representations and warranties, covenants and conditions to
closing and certain other matters governing the issuance and sale of the
Securities by the Company to the Purchaser. Each of the provisions of the
Placement Agreement, including the definitions therein, are hereby incorporated
by reference into this Subscription Agreement. In addition, to the extent
provided for in the Placement Agreement, the Purchaser shall be entitled to the
benefits of the Placement Agreement and shall be entitled to enforce such
obligations of the Company under the Placement Agreement as fully as if the
Purchaser were a party to such Placement Agreement, it being agreed between the
parties that any and all representations made by the Company to the Placement
Agent in the Placement Agreement shall be deemed to have also been made to the
Purchaser.
1.4 If any condition specified herein or in the Placement Agreement shall
not have been fulfilled when and as required to be fulfilled by, on behalf of or
in respect of the Company or the Securities, this Subscription Agreement may be
terminated by the Purchaser by notice to the Company at any time at or prior to
the Closing Date, and such termination shall be without liability of any party
to any other party except as provided in Section 7 of the Placement Agreement
and except that Sections 1 and 8 of the Placement Agreement shall survive any
such termination and remain in full force and effect.
1.5 If the CBO Offering is not successfully completed for any reason,
including, without limitation, as a result of the inability of the Purchaser to
acquire sufficient subordinated debt and capital securities from the Company and
other issuers and sellers in a quantity and with other particular
characteristics, in the aggregate, sufficient to satisfy rating agency criteria
with respect to expected ratings on the Securities to be issued by the Purchaser
and other criteria deemed necessary or advisable by the Purchaser, all
obligations of the Purchaser hereunder shall terminate and be extinguished.
1.6 Notwithstanding any other provision of this Subscription Agreement,
the obligations of the Purchaser hereunder are limited recourse obligations of
the Purchaser, payable solely from the proceeds of the CBO Offering, and if the
CBO Offering is not completed or the proceeds of the CBO Offering are
insufficient to satisfy the obligations of the Purchaser, any claims hereunder
shall be extinguished. The Company further agrees: (i) not to take any action in
respect of any claims hereunder against any subscriber, officer, director,
employee or administrator of the Purchaser, and (ii) not to institute against
the Purchaser any insolvency, bankruptcy, reorganization, liquidation or similar
proceedings in any jurisdiction until one year and one day or, if longer, the
applicable preference period then in effect, shall have elapsed since the final
payments to the holders of the Notes issued by the Purchaser in connection with
the CBO Offering.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1 The Purchaser understands and acknowledges that none of the Securities
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any other applicable securities laws, and are being
offered for sale by the Company in transactions not requiring registration under
the Securities Act, and the Securities may not be offered, sold, pledged or
otherwise transferred by the Purchaser except in compliance with the
registration requirements of the Securities Act, or any other applicable
securities laws, pursuant to an exemption therefrom or in a transaction not
subject thereto. The Purchaser represents and warrants that until 40 days after
the Closing Date, it will not offer, sell, pledge or otherwise transfer the
Securities within the United States or to, or for the account or benefit of,
U.S. Persons (as defined in Regulation S under the Securities Act).
2.1.1 The Purchaser represents and warrants and certifies that it is
not a "U.S. person" (as such term is defined in Rule 902 under the Securities
Act), that it is not acquiring the securities for the account or benefit of any
U.S. person, and that the offer and sale of Securities to the Purchaser
constitutes an "offshore transaction" under Regulation S under the Securities
Act.
2.2 The Purchaser represents and warrants that it is purchasing the
Securities for its own account, for investment and not with a view to, or for
offer or sale in connection with, any distribution thereof in violation of the
Securities Act or other applicable securities laws, subject to any requirement
of law that the disposition of its property be at all times within its control
and subject to its ability to resell such Securities pursuant to an effective
registration statement under the Securities Act or under Rule 144A under the
Securities Act or any other exemption from registration available under the
Securities Act, and the Purchaser agrees to the legends and transfer
restrictions applicable to the Securities contained in the Indenture.
2.2.2 The Purchaser represents and warrants that it will not engage in
hedging transactions with regard to the Securities unless in compliance with the
Securities Act.
2.3 The Purchaser has full power and authority to execute and deliver this
Subscription Agreement, to make the representations and warranties specified
herein, and to consummate the transactions contemplated herein and it has full
right and power to subscribe for the Securities and perform its obligations
pursuant to this Subscription Agreement.
2.4 The Purchaser, a Cayman Islands company whose business includes the
issuance of certain notes and acquiring the Securities, and other similar
securities, has had the opportunity to ask questions of, and receive answers and
request additional information from, the Company and is aware that it may be
required to bear the economic risk of an investment in the Securities.
2.5 No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any governmental body, agency or court
having jurisdiction over the Purchaser, other than those that have been made or
obtained, is necessary or required for the
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performance by the Purchaser of its obligations under this Subscription
Agreement or to consummate the transactions contemplated herein.
2.6 This Subscription Agreement has been duly authorized, executed and
delivered by the Purchaser.
2.7 The Purchaser is not in violation or default of any term of its
Amended and Restated Memorandum of Association or Articles of Association, of
any provision of any mortgage, indenture, contract, agreement, instrument or
contract to which it is a party or by which it is bound or of any judgment,
decree, order, writ or, to its knowledge, any statute, rule or regulation
applicable to the Purchaser which would prevent the Purchaser from performing
any material obligation set forth in this Subscription Agreement. The execution,
delivery and performance of and compliance with this Subscription Agreement, and
the consummation of the transactions contemplated herein, will not, with or
without the passage of time or giving of notice, result in any such material
violation, or be in conflict with or constitute a default under any such term,
or the suspension, revocation, impairment, forfeiture or non-renewal of any
permit, license, authorization or approval applicable to the Purchaser, its
business or operations or any of its assets or properties which would prevent
the Purchaser from performing any material obligations set forth in this
Subscription Agreement.
2.8 The Purchaser is an exempted company with limited liability duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction where it is organized, with full power and authority to perform its
obligations under this Subscription Agreement.
2.9 The Purchaser understands and acknowledges that the Company will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements and agrees that, if any of the acknowledgments,
representations, warranties or agreements deemed to have been made by it by its
purchase of the Securities are no longer accurate, it shall promptly notify the
Company.
2.10 The Purchaser understands that no public market exists for any of the
Securities, and that it is unlikely that a public market will ever exist for the
Securities.
ARTICLE III
MISCELLANEOUS
3.1 Any notice or other communication given hereunder shall be deemed
sufficient if in writing and sent by registered or certified mail, return
receipt requested, international courier, or delivered by hand against written
receipt therefor, or by facsimile transmission and confirmed by telephone, to
the following addresses, or such other address as may be furnished to the other
parties as herein provided:
To the Company: Gold Banc Corporation, Inc.
00000 Xxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
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To the Purchaser: MM Community Funding II, Ltd
x/x XXXX Xxxxxxx
X.X. Xxx 0000 XX
Xxxxxxxxxx House
113 Church Street
Xxxxxx Town, Grand Cayman
Cayman Islands
British West Indies
Attention: Directors
Telephone: 000-000-0000
Fax: 000-000-0000
Unless otherwise expressly provided herein, notices shall be deemed to have
been given when received.
3.2 This Subscription Agreement shall not be changed, modified or amended
except by a writing signed by the parties to be charged.
3.3 Upon the execution and delivery of this Subscription Agreement by the
parties hereto, this Subscription Agreement shall become a binding obligation of
each such party with respect to the matters covered herein, including those
incorporated by reference from the Placement Agreement.
3.4 NOTWITHSTANDING THE PLACE WHERE THIS SUBSCRIPTION AGREEMENT MAY BE
EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL THE
TERMS AND PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PURCHASER AND THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE
CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO
THIS SUBSCRIPTION AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY,
IRREVOCABLY WAIVES ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY
AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD
AND DETERMINED IN ANY SUCH COURT. EACH OF THE PURCHASER AND THE COMPANY, ON
BEHALF OF ITSELF AND ITS SUBSIDIARIES IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
3.5 The parties agree to execute and deliver all such further documents,
agreements and instruments and take such other and further action as may be
necessary or appropriate to carry out the purposes and intent of this
Subscription Agreement.
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3.6 This Subscription Agreement may be executed in one or more
counterparts each of which shall be deemed an original, but all of which shall
together constitute one and the same instrument.
SIGNATURES APPEAR ON THE FOLLOWING PAGE
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IN WITNESS WHEREOF, I have set my hand the day and year first written
above.
MM COMMUNITY FUNDING II, LTD
By:
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Print Name:
-------------------------
Title: Director
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IN WITNESS WHEREOF, this Subscription Agreement is agreed to and accepted
as of the day and year first written above.
GOLD BANC CORPORATION, INC.
By:
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Name:
Title:
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