Exhibit 10.40
AMENDMENT NO. 4 TO AMENDED AND RESTATED
CREDIT AGREEMENT
This Amendment No. 4 to Amended and Restated Credit Agreement ("Amendment")
dated as of June ____, 2005 by and among the lenders signatories hereto
("Banks"), Comerica Bank as agent for the Banks (in such capacity, "Agent"), and
North Pointe Holdings Corporation, a Michigan corporation ("Company").
RECITALS
A. Company and Banks entered into that certain Amended and Restated Credit
Agreement dated as of January 26, 2004, as amended by three amendments
("Agreement").
B. The parties desire to amend the Agreement.
NOW, THEREFORE, the parties agree that the Agreement and the Term Notes are
amended as follows:
1. The following definitions in Section 1 of the Agreement are amended to
read in their entireties as follows:
"`Revolving Credit Maturity Date' shall mean the earlier to occur of
(i) July 1, 2006, and (ii) the date on which the Revolving Credit Aggregate
Commitment shall be terminated pursuant to Section 2.13 or Section 8.2
hereof."
"`Term Loan' shall mean the term loans extended by the Term Loan Banks
to Company in the aggregate principal amount of Seventeen Million Dollars
($17,000,000) pursuant to Section 3 of this Agreement."
2. Sections 3.1, 3.2, 3.3 and 3.9 of the Agreement are amended to read in
their entireties as follows:
"3.1 Term Loan. Subject to the terms and conditions of this Agreement,
each Term Loan Bank, severally and for itself alone, agrees to loan to
Company on June ___, 2005, an amount equal to its Term Loan Percentage of
the Term Loan. At the time of the borrowing under this Section, Company
agrees to execute a separate Term Note for each Term Loan Bank with
appropriate insertions (acceptable to the Term Loan Banks in form and
substance) as evidence of the Indebtedness under this Section 5.1.
3.2 Repayment. The Indebtedness represented by the Term Notes shall be
repaid in equal quarterly principal installments each in the amount of
Eight Hundred Fifty Thousand Dollars ($850,000), plus accrued interest as
provided in Section 3.4. Such payments shall commence on August 15, 2005,
and shall continue on the fifteenth day of each November, February, May and
August thereafter, until the Term Loan Maturity Date, when the entire
unpaid principal
balance of such Indebtedness and accrued interest thereon, shall be due and
payable in full.
3.3 Disbursement of Term Loan. Subject to the satisfaction of the
conditions of the making of the Term Loan, each Term Loan Bank shall, not
later than 2:00 p.m. (Detroit time) on June ___, 2005, make available the
amount of its Percentage of the Term Loan in immediately available funds to
Agent, at the office of Agent located at 000 Xxxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxxx 00000. Agent shall make available to Company not later than 4:00
p.m. (Detroit time) on such date the aggregate of the amounts so received
by it in like funds by credit to an account of Company maintained with
Agent or to such other account or third party as Company may direct. Unless
Agent shall have been notified by any Term Loan Bank that such Term Loan
Bank does not intend to make available to Agent such Term Loan Bank's pro
rata share of the Term Loan, Agent may assume that such Term Loan Bank has
made such amount available to Agent on such date and may, in reliance upon
such assumption, make available to Company a corresponding amount. If such
amount is not in fact made available to Agent by such Term Loan Bank, Agent
shall be entitled to recover such amount on demand from such Term Loan
Bank. If such Term Loan Bank does not pay such amount forthwith upon
Agent's demand therefor, the Agent shall promptly notify Company and
Company shall pay such amount to Agent. Agent shall also be entitled to
recover from such Term Loan Bank or Company, as the case may be, interest
on such amount in respect of each day from the date such amount was made
available by Agent to Company to the date such amount is recovered by
Agent, at a rate per annum equal to the Applicable Interest Rate then
applicable to the Term Loan. The obligation of any Term Loan Bank to fund
its Percentage of the Term Loan shall not be affected by the failure of any
other Term Loan Bank to fund its Percentage of the Term Loan and no Term
Loan Bank shall have any liability to the Company, the Agent, or any other
Term Loan Bank for another Term Loan Bank's failure to fund its Percentage
of the Term Loan hereunder.
3.9 Use of Term Loan Proceeds. The proceeds of the Term Notes shall be
used to repay (by renewal) existing term indebtedness of Company to the
Banks under this Agreement and to make, through Financial, an investment in
Home Pointe Insurance Company, a Florida corporation, in an amount not
exceeding Seven Million Five Hundred Thousand Dollars ($7,500,000)."
3. Section 7.6 of the Agreement is amended to change the period at the end
of subsection (k) to read "; and" and to add the following subsection (l):
"(l) $7,500,000 cash equity investment in Home Pointe Insurance
Company."
4. Section 7.16 of the Agreement is amended to read in its entirety as
follows:
"7.16 Reinsurance Contracts. Enter into any reinsurance contract with
any Person for an amount that exceeds 10% of the aggregate dollar value of
such
reinsurance contract unless such Person (i) has a rating of at least A- as
determined by Best, or (ii) is secured through the Michigan Catastrophic
Claims Association; provided that this provision shall not apply to any
reinsurance contract with Sore Re until December 31, 2005."
5. Company hereby represents and warrants that, after giving effect to the
amendments contained herein, (a) execution, delivery and performance of this
Amendment and any other documents and instruments required under this Amendment
or the Agreement are within Company's powers, have been duly authorized, are not
in contravention of law or the terms of the Company's Articles of Incorporation
or Bylaws and do not require the consent or approval of any governmental body,
agency, or authority; and this Amendment and any other documents and instruments
required under this Amendment or the Agreement, will be valid and binding in
accordance with their terms; (b) the representations and warranties of Company
set forth in Sections 5.1 through 5.6 and 5.8 through 5.21 of the Agreement are
true and correct in all material respects on and as of the date hereof with the
same force and effect as if made on and as of the date hereof; (c) the
representations and warranties of Company set forth in Section 5.7 of the
Agreement are true and correct in all material respects as of the date hereof
with respect to the most recent financial statements furnished to the Bank by
Company in accordance with Section 6.1 of the Agreement; and (d) no Event of
Default, or condition or event which, with the giving of notice or the running
of time, or both, would constitute an Event of Default under the Agreement, has
occurred and is continuing as of the date hereof.
6. This Amendment shall be effective upon (a) execution hereof by Company,
Agent and the Banks, (b) execution by the Guarantors of a reaffirmation of
Guaranty in the form attached hereto as Exhibit A, (c) execution by Xxxxx X.
Xxxxxxx and B. Xxxxxxx Xxxxxxx of replacement Guaranties in form acceptable to
Agent, (d) execution and delivery by Company to Agent of replacement Revolving
Credit Notes and Term Notes in form acceptable to the Agent, and (e) payment by
Company to the Agent for distribution to the Banks of the amendment fees
specified in the separate fee letter from the Agent to the Company.
7. This Amendment may be signed in any number of counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
8. Capitalized terms not defined herein shall have the meanings given to
them in the Agreement.
WITNESS the due execution hereof as of the day and year first above
written.
COMERICA BANK, AS AGENT NORTH POINTE HOLDINGS
CORPORATION
By: By: /s/ Xxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxxxx Its: President
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Its: First Vice President
BANKS: COMERICA BANK
By:
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Its:
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FIFTH THIRD BANK
By:
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Its:
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JPMORGAN CHASE BANK N.A.,
SUCCESSOR BY MERGER TO BANK
ONE N.A.
By: /s/ Xxxxxxx X. Xxxxx
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Its: SVP
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EXHIBIT A
The undersigned previously executed and delivered to Comerica Bank, as
Agent, a Guaranty dated January 26, 2004 ("Guaranty") with respect to the
obligations and liabilities of North Pointe Holdings Corporation ("Borrower") to
Comerica Bank, Fifth Third Bank and Bank One N.A. The undersigned acknowledge
the foregoing amendment to the Amended and Restated Credit Agreement dated
January 26, 2004 between Borrower, Comerica Bank as Agent and the lenders party
to the Credit Agreement. The undersigned acknowledge and agree that the Guaranty
remains in full force and effect in accordance with its terms and that the
undersigned have no defense or setoff to their respective obligations under the
Guaranty.
Dated: June ___, 2005 NORTH POINTE FINANCIAL
SERVICES, INC.
By: /s/ B. Xxxxxxx Xxxxxxx
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Its: EVP/COO
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N.P. PREMIUM FINANCE COMPANY
By: /s/ B. Xxxxxxx Xxxxxxx
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Its: VP
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