EXPENSE SHARING AGREEMENT
Exhibit
10.1
THIS
EXPENSE SHARING AGREEMENT is made and entered effective as of the date indicated
below (“Agreement”),
by
and between WHITE RIVER CAPITAL, INC., an Indiana corporation (“WRC”), CASTLE
CREEK CAPITAL LLC and CASTLE CREEK ADVISORS LLC, each Delaware limited liability
companies (collectively, “Castle
Creek”).
RECITALS
WRC,
on
the one hand, and Castle Creek, on the other hand, are in separate businesses
but have certain executive officers in common and wish to share certain limited
activity expenses on a fee basis.
Castle
Creek will provide various facilities and equipment to WRC throughout the
term
of this Agreement, including, but not limited to, computer and telephone
network
systems, office space, copy services and data services, collectively,
“Operating
Facilities.”
NOW,
THEREFORE, in consideration of the mutual terms, covenants, and conditions
herein set forth, the parties agree as follows:
SERVICES
PROVIDED
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1.
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Castle
Creek shall provide the following Operating Facilities to WRC utilizing
Castle Creek facilities and equipment located at 0000 Xx Xxxxx,
Xxxxxx
Xxxxx Xx, XX 00000.
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a.
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Technology
and Related Support.
Castle Creek shall provide technology services including, but not
limited
to, telephone systems, data services, internet services, and other
future
business technology solutions that may be provided by Castle Creek
for its
own personnel with respect to its own operations as required by
WRC, from
time to time.
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b.
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Facilities
and Equipment Rental.
Castle Creek shall provide office space, office furniture, office
equipment, all leasehold improvements, janitorial and maintenance,
facilities management, access to common areas including conference
rooms,
lunch rooms, lobby, rest room facilities,
etc.
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c.
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Other.
Other miscellaneous items such as office supplies, facsimile, and
copying
machines, mail room support, and reasonable
postage.
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2.
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Cost
of Operating Facilities.
Castle Creek will charge, and WRC will pay, fees equal to a flat
ten
percent (10%) of Castle Creek’s monthly expenses for the services provided
under Section 1. At all times the fee shall represent a reasonable
allocation of actual expenses that is proportionate to actual facilities,
equipment and services provided to WRC. WRC shall not otherwise
be
required to make any payment or reimbursement to Castle Creek for
any
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services
or expenses except as provided in this Agreement. All fees will be calculated
and billed in arrears. The billing cycle will be quarterly.
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3.
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No
Other Shared Expenses.
WRC is solely responsible for all other expenses incurred by WRC
for
services provided by entities other than Castle Creek. WRC is not
obligated to pay or reimburse Castle Creek for any expenses or
obligations
other than as provided under this
Agreement.
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OTHER
PROVISIONS
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4.
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Correction
of Errors.
Castle Creek and WRC will work in good faith together in selecting
the
best way to correct any errors. The cost of the correction, if
significant, will be borne by the responsible party in accordance
with
this agreement.
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5.
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Term.
This Agreement is effective from and after the September 1, 2005
and shall
continue thereafter until terminated by either party upon 30 days’ prior
written notice (“Termination
Notice”).
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6.
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Reports
and Records.
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a.
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Castle
Creek will maintain mutually satisfactory documentary evidence
in
reasonable detail of the expenses paid by Castle Creek on behalf,
or for
the benefit, of WRC pursuant to this Agreement. When expenses are
shared,
Castle Creek will prepare and retain reasonable supporting evidence
of its
method of allocation of those expenses as between the parties.
All of
these books and records will be maintained for not less than three
years
after December 31 of the year in which they were created.
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b.
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Upon
reasonable request, during normal business hours, Castle Creek
will
provide to WRC and, as requested, the SEC or state securities regulatory
authorities complete access to the books and records covered by
this
Agreement upon and only upon the assurance that such information
disclosed
to the regulators shall be accorded confidential treatment pursuant
to the
Freedom of Information Act, 5 U.S.C. §552(b)(4) and that it not be made
available for inspection or copying except as compelled by applicable
laws, rules, regulations, or order.
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7.
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Independent
Relationship.
Nothing is this Agreement will be deemed to constitute a partnership
or
other relationship between the parties other than the specific
contractual
relationship described here.
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8.
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Indemnification.
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a.
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WRC
will hold harmless, defend, and indemnify Castle Creek for, and
will pay
to Castle Creek the amount of any liability, cost, obligation,
loss, fee,
penalty, or expense (including costs of investigation and defense
and
reasonable attorneys’ fees), involving a third-party claim alleged or
asserted to be in connection with or as
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2
a
result
of the facilities and equipment provided under this Agreement by Castle Creek
to
WRC, other than claims arising out of the nonperformance or negligence of
Castle
Creek in providing Operating Facilities covered by this Agreement.
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b.
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Castle
Creek will hold harmless, defend, and indemnify WRC for, and will
pay to
WRC the amount of any liability, cost, obligation, loss, fee, penalty,
or
expense (including costs of investigation and defense and reasonable
attorneys’ fees), involving a third-party claim alleged or asserted to be
in connection with or as a result of the nonperformance or negligence
of
Castle Creek in providing Operating Facilities covered by this
Agreement.
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9.
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Confidentiality.
Except for disclosure to its attorneys, bankers, underwriters,
lenders, or
regulators, neither party will disclose any information obtained
pursuant
to this Agreement without the other party’s prior written approval. This
will not, however, apply to information which (i) is generally
available
to the public other than as a result of a breach of this Agreement;
(ii)
becomes available on a nonconfidential basis from a source other
than the
other party or its affiliates or agents, which source was not itself
bound
by a confidentiality agreement; or (iii) which is required to be
disclosed
by law or pursuant to court or arbitrator’s
order.
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10.
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Miscellaneous.
This Agreement contains the entire agreement between the parties
with
respect to the subject matter of this Agreement. This Agreement
may be
amended from time to time, by mutual written agreement of the parties.
The
parties may add additional services to be performed by adding a
schedule
of additional services.
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11.
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Governing
Law.
This Agreement shall be governed by and construed in accordance
with the
laws of the State of California without regard to conflict of laws
principles.
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12.
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Castle
Creek.
WRC shall make payments hereunder to Castle Creek Capital LLC,
which shall
allocate or apply proceeds hereunder to Castle Creek Advisors LLC
as it
reasonably deems equitable. The obligations of Castle Creek Capital
LLC
and Castle Creek Advisors LLC hereunder are joint and
several.
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3
IN
WITNESS WHEREOF, the parties have executed this Agreement as of November 8,
2005.
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Castle
Creek Capital LLC
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By:
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/s/
Xxxxxxx X. Xxx
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Its:
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Executive
Vice President
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Castle
Creek Advisors LLC
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By:
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/s/
Xxxxxxx X. Xxx
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Its:
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Executive
Vice President
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WHITE
RIVER CAPITAL, INC.
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By:
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Xxxxxx
X. Xxxxxxx
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Its:
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Chief
Financial Officer
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