EXHIBIT 10.6
CAPITAL SECURITIES SUBSCRIPTION AGREEMENT
June 28, 2001
THIS CAPITAL SECURITIES SUBSCRIPTION AGREEMENT (this "Subscription
Agreement") made among Matrix Bancorp Capital Trust III (the "Trust"), Matrix
Bancorp, Inc. (the "Company" and, collectively with the Trust, the "Offerors"),
and MM Community Funding Ltd (the "Purchaser").
RECITALS:
A. The Trust desires to issue $15,000,000 of its 10.25 % Fixed Rate
MMCapSSM (the "Capital Securities"), with a liquidation amount of $1,000 per
Capital Security, representing an undivided beneficial interest in the assets of
the Trust (the "Offering"), to be issued pursuant to an Amended and Restated
Declaration of Trust (the "Declaration"), by the Company, The Bank of New York,
as institutional and Delaware trustee, the administrator(s) named therein, and
the holders, from time to time, of the Capital Securities, which Capital
Securities are to be guaranteed by the Company with respect to distributions and
payments upon liquidation, redemption and otherwise to the extent provided in
and pursuant to the terms of a Guarantee Agreement between the Company and The
Bank of New York, as guarantee trustee (the "Guarantee"); and
B. The proceeds from the sale of the Capital Securities will be combined
with the proceeds from the sale of the common securities by the Trust to the
Company and will be used by the Trust to purchase an equivalent aggregate
principal amount of 10.25% Fixed Rate Junior Subordinated Debentures due July
25, 2031 of the Company (the "Debentures"), to be issued by the Company pursuant
to an Indenture to be executed by the Company and The Bank of New York, as
debenture trustee (the "Indenture"); and
C. The Purchaser intends to complete an offering of its Notes (the "CBO
Offering") on or about July 16, 2001 or such other business day as may be agreed
upon (the "Closing Date") by the Offerors and the placement agents ("Placement
Agents") identified in the Placement Agreement and to use the proceeds of the
CBO Offering to, among other things, acquire the Capital Securities from the
Trust and comparable capital securities from other trusts in a quantity and with
other particular characteristics, in the aggregate, sufficient to permit the
successful completion of the CBO Offering; and
D. In consideration of the premises and the mutual representations and
covenants hereinafter set forth, parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE OF CAPITAL SECURITIES
1.1. Upon the execution of this Subscription Agreement, subject to the
conditions precedent set forth in Section 1.5, the Purchaser hereby agrees to
purchase from the Trust $15,000,000 of its Capital Securities at a price equal
to $1,000 per Capital Security (the "Purchase Price") and the Trust agrees to
sell Capital Securities with a liquidation amount of
$1,000 per Capital Security to the Purchaser for the Purchase Price. The rights
and preferences of the Capital Securities will be set forth in the Declaration.
The Purchase Price is payable by the Purchaser in immediately available funds to
the Trust's Account No. 234206 at The Bank of New York on the Closing Date.
1.2. The certificate for the Capital Securities shall be delivered in
definitive form by the Trust 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 Capital Securities being
purchased by the Purchaser.
1.3. The Placement Agreement, dated June 28, 2001 (the "Placement
Agreement"), among the Offerors 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 Capital
Securities by the Trust 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 Offerors under the Placement Agreement as fully as if the
Purchaser were a party to such Placement Agreement.
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 Offerors or the Capital Securities, this Subscription
Agreement may be terminated by the Purchaser by notice to the Offerors 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 that Sections 1, 7 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 capital securities from the Trust and other trusts in a
quantity and with other particular characteristics, in the aggregate, sufficient
to satisfy rating agency criteria with respect to expected ratings on the Notes
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 Trust, the Bank of New York (on behalf of the Trust),
and the Company further agree (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.
1.7 The Offerors represent and warrant to the Purchaser that upon the
delivery or transfer of the Capital Securities to the Purchaser on the Closing
Date as contemplated herein, the Purchaser will receive good and marketable
title to the Capital Securities, free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASER
2.1. The Purchaser understands and acknowledges that none of the Capital
Securities, the Debentures or the Guarantee 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 Offerors in
transactions not requiring registration under the Securities Act, and the
Capital 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.
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 Capital 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
Capital 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 Capital 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 Capital Securities contained
in the Declaration.
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 Capital 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 Capital Securities, and other
similar securities, has had the opportunity to ask questions of, and receive
answers and request additional information from, the Offerors and is aware that
it may be required to bear the economic risk of an investment in the Capital
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 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 Capital 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 Capital Securities, and that it is unlikely that a public market will ever
exist for the Capital 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 Offerors: Matrix Bancorp, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
ATTN: T. Xxxxx XxXxxxxxx
To the Purchaser: MM Community Funding 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 TRUST, PURCHASER AND THE
COMPANY, ON BEHALF OF ITSELF AND ITS SUBSIDIARIES (INCLUDING, WITHOUT
LIMITATION, THE TRUST), 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 TRUST, PURCHASER AND THE COMPANY, ON BEHALF OF ITSELF
AND ITS SUBSIDIARIES (INCLUDING, WITHOUT LIMITATION, THE TRUST), 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.
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
IN WITNESS WHEREOF, I have set my hand the day and year first written
above.
MM Community Funding Ltd
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Print Name: Xxxxx Xxxxxxx
------------------------
Title: Director
IN WITNESS WHEREOF, this Subscription Agreement is agreed to and accepted
as of the day and year first written above.
MATRIX BANCORP, INC.
By: /s/ Xxxxx XxXxxxxxx
--------------------------------------
Name: T. Xxxxx XxXxxxxxx
Title: Senior Vice President,
Secretary and General Counsel
MATRIX BANCORP CAPITAL TRUST III
By: /s/ Xxxxx XxXxxxxxx
--------------------------------------
Name: T. Xxxxx XxXxxxxxx
Administrator
