EXHIBIT 10.48
AMENDMENT NO. 5 TO AMENDED AND RESTATED
CREDIT AGREEMENT
This Amendment No. 5 to Amended and Restated Credit Agreement ("Amendment")
dated as of September 22, 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 four 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:
" 'Change of Control' shall mean the occurrence of either:
(A) (i) any person or group of persons (within the meaning of Rule
13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as
amended), other than the Investors or any Affiliates of the Investors or a
person approved in advance by the Majority Banks (a "Permitted
Transferee"), shall have acquired beneficial ownership (within the meaning
of such Rule 13d-3) of 25% or more of the equity interests of the Company
generally having the right to vote through the acquisition of such equity
interests from the Investors or any Affiliates of the Investors; and (ii)
the Investors and any Affiliates of the Investors shall, collectively,
cease to be the beneficial owners (within the meaning of such Rule 13d-3)
of at least 25% or more of the equity interests of the Company generally
having the right to vote by virtue of the sale or other transfer of equity
interests to any Person which is not an Investor, an Affiliate of the
Investors or a Permitted Transferee of the Investors; or
(B) Company shall cease to own directly or indirectly, at least 100%
of the common equity interests of its Subsidiaries.
'Investor' shall mean any person or group of persons (within the
meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange
Act of 1934, as amended) who held beneficial ownership of at least 51% of
the voting stock of the Company, or who was a director or employee of
Company or its Subsidiaries on September 1, 2005, and any affiliate of any
such person. "
2. Section 8.1(i) of the Agreement is amended to read in its entirety as
follows:
"(i) if a Change of Control shall occur;"
3. 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.
4. This Amendment shall be effective upon (a) execution hereof by Company
and Agent (for and on behalf of the Banks) and (b) execution by the Guarantors
of a reaffirmation of Guaranty in the form attached hereto as Exhibit A.
5. 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.
6. 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: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxxx X. Xxxxx
--------------------------------- ------------------------------------
Xxxxxxx X. Xxxxxxxxx Its: Senior V.P. Underwriting
Its: First Vice President
BANKS: COMMERICA BANK
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Its: F.V.P.
FIFTH THIRD BANK
By: /s/ Xxxx Xxxx
------------------------------------
Its: V.P.
JPMORGAN CHASE BANK N.A.,
SUCCESSOR BY MERGER TO BANK ONE N.A.
By: /s/ Xxxx Xxxxx
------------------------------------
Its: Senior Vice President
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: September 22, 2005 NORTH POINTE FINANCIAL SERVICES, INC.
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Its: V.P.
N.P. PREMIUM FINANCE COMPANY
By: /s/ B. Xxxxxxx Xxxxxxx
------------------------------------
Its: Executive Vice President
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