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Exhibit 4.4(d)
PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT is entered into as of ___________ __,
2005, by and
between Richard M. DeVos Charitable Lead Annuity Trust No. 2
("Pledgee"), and
WHITE RIVER CAPITAL, INC., an Indiana corporation
("Pledgor").
RECITALS
WHEREAS, Pledgor has acquired one hundred percent (100%) of the
ownership
interests in and is now the sole member of Coastal Credit, LLC,
a Virginia
limited liability company (the "Company"); and
WHEREAS, pursuant to a Note Purchase Agreement between Pledgee
and Pledgor
dated March 9, 2005, ("Note Purchase Agreement"), Pledgor has
issued to Pledgee
that certain Secured Note dated as of _________ __, 2005 (as
same may be amended
or modified from time to time, the "Note"), evidencing
indebtedness of the
Pledgor to the Pledgee in the principal amount of Fifteen
Million Dollars
($15,000,000) in connection with Pledgor's acquisition of the
ownership
interests in the Company; and
WHEREAS, Pledgee has required the Pledgor, as a condition to the
Pledgee's
loan to the Pledgor, to pledge and grant to Pledgee a security
interest in
Pledgor's ownership interest in the Company to secure Pledgor's
obligations to
the Pledgee pursuant to the Note Purchase Agreement and the Note
(collectively,
the "Obligations").
AGREEMENTS
NOW, THEREFORE, in consideration of the premises and intending
to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE 1. DEFINED TERMS.
Terms that are used herein as capitalized defined terms but that
are not
defined herein shall have the meanings ascribed to them in the
Note Purchase
Agreement. Other terms used herein as defined terms, and their
respective
meanings, are as follows:
"UCC" means the Uniform Commercial Code from time to time in
effect in the
State of Indiana.
"Collateral" means the Pledged Units and all Proceeds
thereof.
"Person" means and includes any individual, corporation,
partnership,
association, limited liability company, trust, estate, or other
entity.
"Pledge Agreement" means this Pledge Agreement, as amended,
supplemented,
or otherwise modified from time to time.
"Pledged Units" means the units of the Company listed on
Schedule 1 hereto,
together with all certificates, options, or rights of any nature
whatsoever that
may be issued or granted by the Company to Pledgor in respect of
the Pledged
Units while this Pledge Agreement is in effect.
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"Proceeds" means all "proceeds" as such term is defined in the
UCC and, in
any event, shall include, without limitation, all distributions
or other income
from, with respect to or on account of, the Pledged Units except
for Permitted
Distributions as hereinafter defined.
ARTICLE 2. PLEDGE; GRANT OF SECURITY INTEREST.
Pledgor hereby pledges and delivers all of Pledgor's right,
title and
interest in and to the Pledged Units and hereby grants to
Pledgee a first
priority security interest in the Collateral, as collateral
security for the
prompt and complete payment and performance when due (whether at
the stated
maturity, by acceleration, or otherwise) of the Obligations.
ARTICLE 3. INSTRUCTION TO COMPANY TO REGISTER PLEDGE.
This Agreement constitutes an instruction to the Company to
register the
Pledged Units in favor of the Pledgee, and Pledgor will execute
and deliver any
other instruction to the Company to register the pledge and
security interest of
the Pledgee which the Pledgee may reasonably request. The
Pledgor will execute
and deliver to the Pledgee any instrument of assignment and any
financing
statement, instruction or other instrument required, or
otherwise deemed
necessary by the Pledgee, to perfect the Pledgee's security
interest. Pledgee
may file any financing statement to perfect its security
interest in the
Collateral signed by the Pledgee or by the Pledgor alone or, if
permitted,
without signature.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES.
Section 4.1 Pledgor represents and warrants that:
(a) Pledgor is the record and beneficial owner of, and has good
and
marketable title to, the Pledged Units, free of any and all
claims, liens
or options in favor of, or claims of, any other Person, except
the security
interest created by this Pledge Agreement;
(b) the Pledged Units represent 100% of the ownership interests
in the
Company and no agreements, options, rights or privileges exist
that would
permit any Person to acquire an ownership interest in the
Company or a
right to participate in the revenues or profits of the
Company;
(c) upon delivery to Pledgee of the certificates evidencing
the
Pledged Units, the security interest granted pursuant to this
Pledge
Agreement constitutes a valid, first priority security interest
in the
Collateral.
ARTICLE 5. COVENANTS.
Section 5.1 Pledgor covenants and agrees with Pledgee that, from
and after
the date of this Pledge Agreement and until the Obligations are
paid in full in
cash:
(a) If Pledgor shall, as a result of its ownership of the
Pledged
Units, become entitled to receive or shall receive any
additional
percentage or units of ownership interest in the Company or any
option or
other rights or interest in the Company whether in addition to,
in
substitution of, as a conversion of, or in
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exchange for any of the Pledged Units, or otherwise in respect
thereof,
Pledgor shall accept it as Pledgee's agent, hold it in trust for
Pledgee
and deliver it forthwith to Pledgee in the exact form received,
duly
endorsed by Pledgor to Pledgee, if required, to be held by
Pledgee
hereunder as additional collateral security for the Obligations.
Any sums
paid upon or in respect of the Pledged Units upon the
liquidation or
dissolution of the Company shall be paid over to Pledgee to be
held by it
hereunder as additional collateral security for the Obligations,
and in
case any distribution of capital shall be made on or in respect
of the
Pledged Units or any property shall be distributed upon or with
respect to
the Pledged Units pursuant to the recapitalization or
reclassification of
the capital of the Company or pursuant to the reorganization
thereof, the
property so distributed shall be delivered to Pledgee to be held
by it,
subject to the terms hereof, as additional collateral security
for the
Obligations. If any sums of money or property so paid or
distributed in
respect of the Pledged Units shall be received by Pledgor,
Pledgor shall,
until such money or property is paid or delivered to Pledgee,
hold such
money or property in trust for Pledgee, segregated from other
funds of
Pledgor, as additional collateral security for the
Obligations.
(b) Without the prior written consent of Pledgee, Pledgor will
not (i)
vote to enable, or take any other action to permit, the Company
to issue
any percentages or units of ownership interest of any nature or
to issue
any other instrument or right convertible into or granting the
right to
purchase or exchange for any percentages or units of ownership
interest of
the Company, or (ii) sell, assign, transfer, exchange, or
otherwise dispose
of, or grant any option with respect to, the Collateral, or
(iii) create,
incur, or permit to exist any claim, lien or option in favor of,
or any
claim of any Person with respect to, any of the Collateral
(except
Permitted Distributions), or any interest therein, except for
the security
interest granted by this Pledge Agreement and except with
respect to
Permitted Distributions. Pledgor will defend the right, title,
and interest
of Pledgee in and to the Collateral held by Pledgor against the
claims and
demands of all Persons whomsoever.
(c) At any time and from time to time, upon the written request
of
Pledgee, and at the sole expense of Pledgor, Pledgor will
promptly and duly
execute and deliver such further instruments and documents and
take such
further actions as Pledgee may reasonably request for the
purposes of
obtaining or preserving the full benefits of this Pledge
Agreement and of
the rights and powers herein granted, including to further
perfect
Pledgee's security interest in the Pledged Units. If any amount
payable
under or in connection with any of the Collateral shall be or
become
evidenced by any promissory note, other instrument or chattel
paper, such
note, instrument or chattel paper shall be immediately delivered
to
Pledgee, dul
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