EXHIBIT 10.3
AGREEMENT TO TENDER
(SENIOR NOTEHOLDERS)
This AGREEMENT TO TENDER, dated as of February __, 2005 (this "Agreement"),
is made by and between WHITE RIVER CAPITAL, Inc., an Indiana corporation
("Buyer") and the Noteholder whose name appears on Schedule 1 (the
"Noteholder").
RECITALS
1. Noteholder owns beneficially the aggregate principal amount of
Restructured Senior Notes and Accrual Notes of UNION ACCEPTANCE CORPORATION, an
Indiana corporation ("UAC") set forth opposite Noteholder's name on Schedule 1.
All such notes so owned and any notes which may hereafter be beneficially owned
by Noteholder prior to the Termination Date (defined below) of this Agreement,
whether by means of purchase or otherwise, are referred to in this Agreement as
Noteholder's "Notes".
2. Buyer, UAC and the Plan Committee ("Committee") (appointed under UAC's
Second Amended and Restated Plan of Reorganization ("Plan") as confirmed by the
Bankruptcy Court) have entered into a Memorandum of Understanding,
("Memorandum") dated February 15, 2005, providing for a series of transactions.
A copy of the Memorandum has been provided to Noteholder. The Memorandum
provides in part for Buyer to offer to purchase outstanding Senior and
Subordinated Restructured Notes and Accrual Notes of UAC, including the Notes
(the "Buyout") and for holders of Notes to agree in advance to tender their
Notes in the Buyout, as provided herein.
3. To induce Buyer to incur expense and expend efforts to pursue the
Buyout, Buyer and UAC have requested that Noteholder enter into this Agreement.
AGREEMENT
In consideration of the foregoing and the mutual covenants and agreements
in this Agreement, the parties, intending to be legally bound, agree as follows:
ARTICLE 1. AGREEMENT TO TENDER
Section 1.1 Tender of Notes.
(a) Noteholder hereby agrees, pursuant to the terms and subject to the
conditions set forth in this Agreement, to validly tender (or cause the
record owner of such Notes to validly tender) to Buyer or its affiliated
assignee designated in an Exercise Notice (defined below) all of
Noteholder's Notes in exchange for (i) payment in cash in an amount (the
"Senior Note Cash Consideration") equal to 100% of the principal balance of
the Restructured Senior Notes at closing of the Buyout plus accrued
interest thereon as of such date. No additional consideration shall be paid
for the Accrual Notes.
(b) Not later than ten (10) days after Buyer delivers to Noteholder a
Notice of Exercise of Right to Purchase, substantially in the form of
Exhibit A (the "Exercise Notice"), Noteholder shall, as appropriate:
(i) deliver to Buyer (x) a letter of transmittal transferring
Noteholder's Notes as provided herein, together with instructions for
payment of the Senior Note Cash Consideration for such Notes, and (y)
Noteholder's original Notes (such documents in clauses (x) and (y)
collectively being hereinafter referred to as the "Tender Documents"),
and/or
(ii) direct and cause its broker, agent or such other person who
is the holder of record of any Notes Beneficially Owned (as defined
below) by Noteholder to tender the Tender Documents on behalf of the
Noteholder.
(c) Noteholder shall not withdraw any tender required to be made under
this Agreement; provided, however, that Noteholder shall be permitted to
withdraw tender of the Notes if the Buyout Date (defined below) shall not
have occurred on or prior to August 15, 2005 or, if earlier, occurrence of
the Termination Date (defined below).
1
(d) If the Notes have been lost, stolen or destroyed, in lieu of
tendering the original Notes, the Noteholder may provide a suitable
certification and indemnity in customary form reasonably acceptable to
Buyer and UAC.
Section 1.2 Payment for Notes; Conditions. Subject to delivery of the
Tender Documents, Buyer agrees to pay (or to cause its affiliated assignee
to pay) the Senior Note Cash Consideration to Noteholder, not later than
the third (3rd) business day after satisfaction or waiver of all conditions
precedent to Buyer's obligations. Such date is referred to herein as the
"Buyout Date"; provided that the Buyout Date shall occur on or before the
Termination Date. Title to the Notes shall pass to Buyer upon such payment.
Buyer's obligation to purchase the Notes is subject to satisfaction or
waiver of the conditions precedent set forth in Section 4 of the
Memorandum, including consummation of the Recapitalization (as defined in
the Memorandum).
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF NOTEHOLDER
Noteholder hereby represents and warrants to Buyer that Noteholder has
all requisite power and authority to execute, deliver and perform this
Agreement. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby have been duly
authorized by all necessary action on the part of Noteholder. This
Agreement constitutes a legal, valid and binding obligation of Noteholder,
enforceable against Noteholder in accordance with its terms. No consent of
any other party is required for the execution and delivery of this
Agreement or the consummation by Noteholder of the transactions
contemplated hereby, Noteholder is the sole, true, lawful and beneficial
owner of Noteholder's Notes. Upon payment of the Senior Note Cash
Consideration, all right, title and interest of Noteholder in the Notes
shall be assigned to Buyer, free and clear of any liens or encumbrances.
ARTICLE 3. ADDITIONAL AGREEMENTS
Section 3.1 Restriction on Transfer. Noteholder shall not transfer or
request that UAC register the transfer of any of Noteholder's Notes, unless
such transfer is made (i) after the Termination Date, or (ii) upon a
registration with UAC of such transfer accompanied by the written
acknowledgement of the transferee that the Notes in the hands of the
transferee remain subject to this Agreement, and the transferee remains
bound by this Agreement.
Section 3.2 Disclosure. Noteholder hereby authorizes Buyer, UAC or its
affiliated assignee to publish and disclose the terms of this agreement in
all documents and schedules filed with any regulatory agency and in any
press release or disclosure document, except for the identity of the
Noteholder (unless such identity disclosure is legally required).
Section 3.3 No Additional Payments. Noteholder shall be entitled to no
further consideration for the Notes other than the Senior Note Cash
Consideration. In the unlikely event that the Senior Restructured Notes
have been paid in full prior to the Buyout Date (with the result that the
Senior Note Cash Consideration shall be zero) Noteholder shall still be
obligated to tender its Accrual Notes in the Buyout as provided herein.
Section 3.4 Noteholder Action. Noteholder shall take no action with
the intention or effect of hindering or delaying the transactions
contemplated in the Memorandum or the Recapitalization.
ARTICLE 4. MISCELLANEOUS
Section 4.1 Termination. This Agreement shall terminate (a) on April
15, 2005, if the Registration Statement has not been filed on or before
such date; and (b) on August 15, 2005, if the Buyout Date has not yet
occurred on such date (in either case, the "Termination Date").
Section 4.2 Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally, by
facsimile (which is confirmed), or an internationally recognized overnight
courier service (which is confirmed) to the parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
2
(a) if to Buyer or UAC, to:
White River Capital, Inc.
c/o Castle Creek Capital LLC
0000 Xx Xxxxx
Xxxxxx Xxxxx Xx, XX 00000
Facsimile: 000-000-0000
Attention: Xxxx X. Xxx
(b) If to Noteholder, at the address set forth below
Noteholder's name on Schedule 1.
Section 4.3 Specific Performance. Noteholder agrees that irreparable
damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. Buyer shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of
competent jurisdiction, this being in addition to any other remedy to which
it is entitled at law or in equity.
Section 4.4 Amendments. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto. Buyer agrees that it
shall not amend the Memorandum of Understanding (a) unless such amendment
has received the unanimous approval of the Committee (as long as the
Committee is still constituted) and (b) in the case of any amendment that
would reduce or delay payments to which Noteholder is entitled hereunder,
unless it has received Noteholder's consent to such amendment.
* * * *
[The next page is the signature page.]
3
Buyer and Noteholder have caused this Agreement to be executed as of the date
first written above.
WHITE RIVER CAPITAL, INC.
________________________________
By:
Title:
NOTEHOLDER (NAMED ON SCHEDULE 1)
________________________________
By:
Title:
Schedule 1
--------------------------------------------------------------------------------------------------------------------
Record Owner: Beneficial Owner:
--------------------------------------------------------------------------------------------------------------------
Restructured Senior Notes, Series 1 Original Principal Balance: Principal Balance (@ 12/31/2004):
Cusip: 904832 AE 2
Note # ___ $_________________ $________________
---------------------------------------- ---------------------------------------------------------------------------
Accrual Notes Cusip: 904832 AH 5 Principal Balance (@ 12/31/2004):
Note #___ $_________________
--------------------------------------------------------------------------------------------------------------------
4
EXHIBIT A
FORM OF NOTICE OF EXERCISE
[Buyer letterhead]
_____________, 2005
[Address]
Re: Notice of Exercise of Right to Purchase Notes
Dear UAC Noteholder:
We hereby notify you that ______________________________________ ("Buyer")
is by this notice exercising its right to purchase the Restructured Senior
Notes, Restructured Subordinated Notes, and the related Accrual Notes described
in that certain Agreement to Tender, dated [February ____, 2005], between you
and Buyer (the "Agreement"). Capitalized terms used but not defined in this
Notice have the meaning specified in the Agreement.
Date of Buy-out
Pursuant to the Tender Agreement, and subject to the satisfaction of the
conditions set forth therein, Buyer will purchase the Notes no later than the
3rd day following the Closing of the Recapitalization. We currently expect the
Closing to occur on [_________, 2005], and the purchase of the Notes in the
Buyout to occur on [____________, 2005].
Instructions for Tendering
Enclosed with this Notice is a Letter of Transmittal, which describes the
procedure you should follow to tender your Notes (including related accrual
notes). In accordance with the instructions described in the Letter of
Transmittal, please return the executed Letter of Transmittal and your original
Notes to:
--------------------------
c/o Xxxxx X. Xxxxxxx, Esq.
Xxxxxx & Xxxxxxxxx LLP
00 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
(000) 000-0000
Deadline
We must receive your Tender Documents no later than [_________, 2005]. A
preaddressed, postage pre-paid envelope is enclosed for your convenience.
Additional Information
Should you have questions, please feel free to contact Xxxx Xxx at (858)
759-6042, or Xxxxx Xxxxx (Plan Committee counsel) at (000) 000-0000.
Sincerely,
Xxxx X. Xxx
President
--------------------------------------
A-1
