Exhibit 4.4(a)
EXECUTION COPY
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WHITE RIVER CAPITAL, INC.
$15,000,000
Secured Note due April 1, 2010
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NOTE PURCHASE AGREEMENT
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Dated March 9, 2005
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WHITE RIVER CAPITAL, INC.
ATTN: MARK R. RUH, PRESIDENT
C/O CASTLE CREEK CAPITAL LLC
6051 EL TORDO
P.O. BOX 1329
RANCHO SANTA FE, CALIFORNIA 92067
Telephone: (858) 759-6042
Facsimile: (858) 756-8301
10.75% Secured Note due April 1, 2010
March 9, 2005
To Each of the Purchasers Listed in
the Attached Schedule A
Ladies and Gentlemen:
White River
Capital, Inc., a
corporation organized
under the laws of
the
State of Indiana (the "Company"),
agrees with each of
the purchasers listed
in
the attached Schedule A (the "Purchasers")
as follows:
ARTICLE 1. AUTHORIZATION OF ISSUANCE OF
NOTES.
The Company has authorized the issue and sale to the Purchasers of
$15,000,000 in principal amount of its 10.75% Secured Note due April 1, 2010
(the notes being referred to herein as the "Notes"). The Notes shall be
substantially in the form set out in Exhibit 1. The terms and provisions
contained in the Notes shall constitute, and are hereby expressly made, a
part
of this Agreement and, accordingly, each of the Purchasers and the
Company, by
its respective execution and delivery of
this Agreement,
expressly agree to the
terms and provisions thereof and to be bound thereby. In the event of any
conflict between the terms of the Notes and
the terms of this
Agreement, this
Agreement shall control.
ARTICLE 2. SALE AND PURCHASE OF NOTES.
Sale and
Purchase. Subject to the terms and conditions of this Note
Purchase Agreement (the "Agreement"), the Company will issue and sell to
each
Purchaser, and each Purchaser will purchase from the Company, the aggregate
principal amount of the Notes set forth opposite the Purchaser's name on
Schedule A at a purchase price equal to 100% of the principal amount of the
Notes (the "Purchase Price"). The obligations hereunder of each Purchaser
are
several and not joint, and each of the Purchasers
shall have no
obligation and
no liability to any Person for the
performance or
nonperformance
hereunder by
any other Purchaser.
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Section 2.1
Restricted Securities.
Each Purchaser, and each subsequent
holder of any Note), by such Purchaser's or
the subsequent
holder's
acceptance
thereof agrees that no transfer or sale (including, without limitation, by
pledge or hypothecation) of the Notes which
is otherwise permitted
hereunder,
other than a transfer or sale to the
Company, shall be effective, unless the
transfer or sale is made:
(a) pursuant
to an effective registration statement under the
Securities
Act of 1933,
as amended (the
"Securities
Act"), and a valid
qualification
under applicable state securities or "blue sky" laws; or
(b) without
the registration or qualification as a result of the
availability
of an exemption
therefrom and, if requested by the
Company,
counsel for such
holder of Notes shall have furnished the Company with an
opinion,
satisfactory in form
and substance to the Company, to the effect
that
no registration is required because of the availability of an
exemption from
the registration requirements of the Securities Act.
Section 2.2
Guaranty and Pledge.
The Note shall be secured by (i) a pledge
of 100% of the ownership interests in Coastal Credit,
LLC, a Virginia
limited
liability company ("Coastal") pursuant to a Pledge Agreement,
in substantially
the form of Exhibit 2 between the Company and the Purchaser; and (ii) by the
Subordinated Guaranty of Coastal, in substantially the form of
Exhibit 3. This
Note Purchase Agreement, the Note, the Pledge Agreement and the Subordinated
Guaranty are collectively referred to as "Collateral Documents" and the
Company's obligations to Purchaser under the Collateral Documents are
collectively referred to as the
"Obligations".
ARTICLE 3. CLOSING.
The sale and
purchase of the Notes
contemplated hereby
shall occur at the
offices of Barnes & Thornburg LLP, 11 South Meridian Street, Indianapolis,
Indiana at 8:00 a.m. (EST), (the "Closing") on the date that all conditions
precedent to the Closing are first
satisfied or on such other business day as
may be agreed upon by the Company and the
Purchasers in writing. At the Closing,
the Company will deliver to each Purchaser the Notes to be purchased by the
Purchaser in a single Note dated the date of
the Closing (the
"Closing Date")
and made payable to the Purchaser, against delivery by the Purchaser to the
Company of the Purchaser's Purchase Price, by wire transfer of immediately
available funds for the account of the
Company to the account
specified to the
Purchaser in writing by the Company.
ARTICLE 4. CONDITIONS TO CLOSING;
TERMINATION.
Section 4.1
Conditions to Purchaser's Obligation to Close. Each Purchaser's
obligation to purchase and pay for the
Notes to be sold to that Purchaser at the
Closing is subject to the fulfillment to
the Purchaser's satisfaction, prior to
or at the Closing of the following
conditions:
(a) The representations and warranties of the Company in this
Agreement shall
be true in all material respects when made and at the
time
of the Closing,
as applicable.
(b) The Company shall have delivered the Note, the Pledge Agreement
and the
Subordinated Guaranty
duly executed by the Company and Coastal, as
applicable.
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(c) The Registration
Statement for the shares of the Company's common
stock
to be issued pursuant to the Plan of Exchange shall have been
declared
effective and the exchange of shares pursuant to the Plan of
Exchange shall
have been consummated.
(d) The Registration
Statement for the shares of the Company's common
stock to be
issued in the
Subscription Offering
shall have been
declared
effective, the
Subscription Offering shall have closed.
(e) All conditions
precedent to the
obligations of UAC
restructured
noteholders to
deliver and sell their UAC restructured and accrual notes to
the Company in connection with the Noteholder Buyout pursuant to the
noteholder
tender agreements in effect on the date
hereof shall have been
met.
(f) There shall not be pending by or before any court or
governmental
authority any
suit, action or proceeding challenging or seeking to restrain
or prohibit,
or to obtain material
damages in respect of
the Transactions
contemplated
herein and the
Registration Statement
or that has had or may
have,
in the reasonable judgment of the Purchaser, a Material Adverse
Effect on the
Company or Coastal.
(g) All conditions precedent to the Closing of the transactions
contemplated in
the Coastal Purchase Agreement shall have been satisfied or
shall be prepared to
be satisfied simultaneously with the Closing.
(h) The Company shall
have paid Purchasers a
$150,000 cash
facility
fee related to
the transactions contemplated hereby.
(i) Barnes & Thornburg LLP, legal counsel to the Company,
shall have
delivered an
opinion to the Purchasers in the form of Exhibit 4.
(j) Holders of
Coastal's outstanding
subordinated
notes shall have
agreed to
subordinate Coastal's
obligations under such
subordinated notes
to Coastal's guaranty obligations to Purchaser under the Subordinated
Guaranty in the
form of Exhibit 5.
Section 4.2
Termination.
This Agreement may be terminated
(a) by mutual
written agreement of the Company and each
Purchaser, or (b) upon
written notice
from either party to the other after
August 15,
2005, if the Closing has not
occurred on or before such date.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY.
The Company
represents and warrants to each of the Purchasers, as follows;
provided, that only the representations set forth in Sections 5.1 through
5.4
shall be deemed made as of the date hereof
and, if the Closing
occurs, all of
the following representations shall be
deemed made by the Company as of the date
of Closing.
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Section 5.1
Organization
and Good Standing The Company is a
corporation
duly formed and validly existing under the laws of the State of
Indiana with
full power and authority to conduct its business
as it is now being
conducted,
to own or use the properties and assets that it purports to own or use and
to
perform the business described in the Registration Statement. Neither the
ownership nor use of the properties
owned or used by
Company, or the nature
of
the activities conducted by it, requires the Company to be qualified to do
business as a foreign legal entity in any
state. Notwithstanding
the foregoing,
Company has conducted no business
operations since its incorporation on December
30, 2004, other than activities associated with the planning,
negotiation and
consummation of the transactions
contemplated
herein, including, the Plan of
Exchange, the Subscription Offering, the Coastal Purchase and the
Noteholder
Buyout.
Section 5.2
Authority; No Conflict
(a) The Company has
full power and
authority to execute
and deliver
this Agreement
and the other documents and agreements contemplated by this
Agreement to be executed and
delivered by the
Company, and to
perform the
Obligations.
(b) The execution
and delivery by the
Company of this
Agreement and
the other
documents and
agreements
contemplated
by this Agreement to
be
executed
and delivered by the Company
have been duly
authorized
by all
necessary
action on the part of
the Company. This
Agreement constitutes
and,
when issued, executed and delivered, each of the Notes and other
Collateral
Documents to which the
Company is a party will constitute, the
legal,
valid, and binding
obligation of the Company, enforceable against
the Company in
accordance with their
respective terms.
When executed and
delivered by
Coastal, the
Subordinated Guaranty
will constitute the legal
valid and
binding obligation of
Coastal, enforceable
against Coastal in
accordance with
its terms.
(c) Neither the
execution and delivery of this Agreement by the
Company or the other documents and
agreement contemplated by this Agreement
to be
executed and delivered by the Company nor the consummation or
performance of
any of the transactions contemplated herein or therein will,
directly or
indirectly (with or without notice or lapse of time):
(i) contravene,
conflict with, or result in a violation of
(A)
any provision of the organizational documents of the Company,
or (B)
any resolution adopted by the board of directors of the
Company;
(ii) contravene,
conflict with, or
result in a violation of, or
give any governmental authority or other person the right to
challenge
any of the transactions contemplated herein or to exercise any
remedy,
or obtain any relief,
under any law or any
court order to which
the
Company, or any of the
assets owned or used
by the Company,
may be
subject;
(iii) contravene,
conflict with, or result in a violation of any
of the terms or requirements of, or give any governmental authority
the right to revoke, withdraw, suspend, cancel, terminate, or
modify,
any
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governmental
authorization or
permit that is held by
the Company or
that otherwise relates
to the business of, or any of the assets owned
or used by, the Company;
(iv) contravene,
conflict with, or result in a violation or
breach of any
provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity
or
performance of, or to
cancel, terminate, or modify, any material
contract to which the Company, Buyer or its assets are subject;
or
(v) result
in the imposition or creation of any lien or
encumbrance upon or with respect to any of the assets owned or used
by
the Company, except as
otherwise expressly contemplated under the
terms of this Agreement.
(d) No consent is
required in connection with the execution and
delivery
by the Company of this Agreement or the consummation or
performance
of any of the
transactions
contemplated
herein other than
regulatory
clearance and
investments by subscribers in connection with the
Subscription
Offering or as
described in the Registration Statement. All
Class 3
claimants and
approximately 81% of
Class 4 claimants
under UAC's
Plan
of Reorganization have agreed in writing to tender their UAC
restructured and
accrual notes to the Company for purchase pursuant to the
Noteholder Buyout following the
Closing.
Section 5.3
Certain Proceedings
There is no pending
legal proceeding that
has been commenced against the Company and that challenges, or may have the
effect of preventing, delaying, making illegal, or otherwise
interfering with,
any of the transactions contemplated by this Agreement, and to the Company's
knowledge, no such proceeding has been
threatened.
Section
5.4 Brokers of Finders
Except as described in the Registration
Statement, the Company has no obligation or
liability, contingent
or otherwise,
for brokerage or finders' fees or agents'
commissions or other
similar payment
in connection with this Agreement.
* * *
As of the date
of the Closing:
Section 5.5
Coastal Credit Representations. The representations of Coastal
set forth in the Coastal Purchase Agreement
are true as of the Closing date. The
Company has provided a true and complete
copy of the Coastal Purchase Agreement
to Purchaser.
Section 5.6
Recapitalization
Status. The
Registration Statement
has been
declared effective by the Securities and
Exchange Commission
and no stop order
has been issued with respect to the Registration Statement by the SEC or any
state securities governmental authority. The Plan of Share Exchange has
been
consummated and UAC is a wholly-owned
subsidiary of Company.
The Subscription
Offering has been consummated and the net cash proceeds of the Subscription
Offering (taken together with
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the proceeds of sale of the Notes) are
sufficient to fund the cash consideration
to be paid at Closing for the purchase of Coastal and (after taking account
funds to be made available to Company by Coastal
and funds available
for such
purpose from UAC in accordance with the
Plan of
Reorganization) the
Noteholder
Buyout.
Section 5.7
Financial Statements.
The Registration Statement contains: (a)
audited consolidated financial statements of UAC as of December 31, 2004
and
2003 and the related statements of operations, shareholders' equity and cash
flows for the years then ended ("UAC Annual Financial Statements"), and (b)
audited balance sheet of Company as of December 31, 2004 ("Buyer Balance
Sheet"). The UAC Annual Financial Statements and the Company Balance Sheet
present fairly in all material respects the financial position of UAC or
Company, as applicable, as of December 31,
2004 and 2003 and with respect to UAC
the results of its operations and its cash flows for the years
then ended, in
accordance with (x) accounting policies and practices consistently applied
throughout the periods included therein and (y) GAAP consistently applied
throughout the periods included
therein.
Section 5.8
Offices and Other Properties; Encumbrances Section 5.8 of the
Company Disclosure Letter contains a complete and
accurate list of all real
property, leaseholds, or other interests in real
property owned by the Company
and UAC. Except as described in Section 5.8
of the Company
Disclosure Letter,
the Company owns (subject only to matters
that would not
reasonably be expected
to have a Material Adverse Effect and to
the matters permitted
by the following
sentence) all the properties and assets (whether real, personal or mixed and
whether tangible or intangible) that it
purports to own. All material properties
and assets of the Company are free and
clear of all encumbrances and are not, in
the case of real property, subject to any rights of way, building use
restrictions, exceptions, variances or, reservations or limitations of any
nature, except, with respect to all such
properties and assets, (a) mortgages or
security interests disclosed in Section 5.8 of the
Company Disclosure Letter as
securing specified liabilities or
obligations, with
respect to which no default
(or event that, with notice or lapse of time or both,
would constitute a
default) exists; (b) mortgages or security
interests incurred in connection with
the purchase of property or assets (such
mortgages and security
interests being
limited to the property or assets so
acquired), with respect to which no default
(or event that, with notice or lapse of time or both,
would constitute a
default) exists; and (c) liens for current
taxes not yet due.
Section 5.9 No
Undisclosed
Liabilities Neither the Company nor UAC has any
material liabilities or obligations of any nature that are required to be
reflected on a balance sheet in accordance
with GAAP or in
accordance with
the
Company's accounting policies and practices
consistently applied
by the Company
that are not set forth on the UAC Annual Financial Statements, the Company
Balance Sheet, or incurred after the date thereof in connection with the
transactions contemplated herein or in the ordinary course of business
(including anticipated non-recourse refinancings by UAC Securitization
Corporation of outstanding previously securitized receivables consistent with
prior practice).
Section 5.10
Taxes
(a) The Company and
UAC have timely
filed or caused to be
filed all
tax returns
required to be filed
on or prior to the date hereof, and all
such tax
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returns were
correct and complete in all material respects. The Company and
UAC have paid
all taxes that are shown to be due on any such tax returns.
(b) No outstanding
waivers or comparable consents regarding the
application of
the statute of limitations with respect to any taxes or
tax
returns
of the Company and UAC have been given by or on behalf of the
Company or
UAC.
(c) Except as
disclosed in Section
5.10 of the
Company Disclosure
Letter, to the
knowledge of the Company, there is no suit, audit, claim
or
assessment
pending or
proposed in writing with respect to taxes of the
Company or
UAC.
(d) Except as
disclosed in Section
5.10 of the
Company Disclosure
Letter,
there are no
Encumbrances for taxes upon the assets of the Company
or UAC.
(e) There are no written assessments of taxes from any taxing
authority
against the Company or UAC.
(f) All tax deficiencies which have been claimed, proposed, asserted
against the
Company an UAC have been fully paid and finally settled, and no
issue has been
raised in any examination by any taxing authority, which by
application of
similar principles may be expected to result in the proposal
or assertion of
a tax deficiency for another year not so examined.
(g) There are no tax sharing agreements or similar arrangements with
respect to or
involving the Company or UAC.
(h) The Company and UAC have withheld, collected or otherwise accrued
all taxes or
amounts they were
required to withhold
or collect under
any
applicable
federal, state or
local law in connection with the business and
operations
of the Company and UAC, including, without limitation, any
amounts required
to be withheld or collected with respect to employee state
and federal income tax withholding, social security, unemployment
compensation,
sales or use taxes or
workmen's
compensation, and all
such
amounts have
been timely remitted to the proper authorities.
Section 5.11 No
Material Adverse
Effect. Since December 31, 2004, to
the
knowledge of the Company, there has not been any Material Adverse Effect
regarding the Company and UAC, taken as a
whole.
Section 5.12
Employee Benefits
(a) Section 5.12 of the Company Disclosure Letter lists all employee
benefit plans
maintained by,
contributed to or with respect to which there
is or would be
any obligation or liability of the Company or UAC, including
all employment
agreements and other
agreements or arrangements containing
"golden
parachute" or other
similar provisions, incentive compensation
agreements, and
deferred compensation agreements. Except for such plans so
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listed neither
the Company nor UAC spon
