EXHIBIT 10.4
AGREEMENT TO TENDER
(SUBORDINATED 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 Subordinated 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
"Subordinated Note Cash Consideration") equal to 0.13 times the principal
amount of such holder's Restructured Subordinated Notes, less any amount
distributed in cash by UAC to the holder of Subordinated Notes prior to the
Buyout Date (defined below) and (ii) Noteholder's ratable portion of any
Additional Consideration as defined and as provided in the Memorandum.
(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 Subordinated 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
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(defined below) shall not have occurred on or prior to August 15, 2005 or,
if earlier, occurrence of the Termination Date (defined below).
(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 Subordinated 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 Subordinated 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 Additional Payments. If the Buyout occurs, the Buyer agrees to
pay to Noteholder after the Buyout Noteholder's ratable portion of any
Additional Consideration as provided for in the Memorandum.
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):
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(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.]
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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 IN SCHEDULE 1)
--------------------------------
By:
Title:
Schedule 1
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Record Owner: Beneficial Owner:
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Restructured Subordinated Notes Cusip: 904832 AG 7 Principal Balance (@ 12/31/2004):
Note # ______
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Accrual Notes Cusip: 904832 AH5 Principal Balance (@ 12/31/2004):
Note # ______
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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
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