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.
<PAGE>
"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
2
<PAGE>
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,
duly endorsed in a
manner satisfactory to
Pledgee, to
