EXHIBIT 10.10
AMENDMENT NO. 2 TO AMENDED AND RESTATED
CREDIT AGREEMENT
This Amendment No. 2 to Amended and Restated Credit Agreement
("Amendment") dated as of June 30, 2004 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 an Amendment No. 1 dated
as of March 31, 2004 ("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 definition of Preferred Shares Subordination Agreement in Section 1
of the Agreement is deleted.
2. The following definitions in Section 1 of the Agreement are amended to
read in their entireties as follows:
"`Revolving Credit Aggregate Commitment' shall mean Seven Million
Dollars ($7,000,000) subject to reduction or termination under Section
2.13, 3.8 or 8.2 hereof."
"`Term Loan' shall mean the term loans extended by the Term Loan
Banks to Company in the aggregate principal amount of Fourteen Million
Eight Hundred Thousand Dollars ($14,800,000) pursuant to Section 3 of this
Agreement."
3. 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 30, 2004, 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.
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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 Twenty Five Thousand Dollars ($825,000), plus accrued
interest as provided in Section 3.4. Such payments shall commence on
August 15, 2004, 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 30, 2004, 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 redeem the Preferred Shares and common
stock of Company owned by Strength Capital Partners, L.P."
4. Section 4.3(d) of the Agreement is amended to read in its entirety as
follows:
"[Reserved];"
5. Section 7.1 of the Agreement is amended to read in its entirety as
follows:
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"7.l Capital Structure and Redemptions. Purchase, acquire, issue or
redeem any of its Equity Interests, except issuances of stock by a
Subsidiary provided that such stock is pledged to the Agent for the
benefit of the Banks as provided hereunder and except for the redemption
of the Preferred Shares and common stock of Company owned by Strength
Capital Partners, L.P. on or about June 30, 2004 for an aggregate
redemption price not exceeding $4,488,000."
6. Section 7.8 of the Agreement is amended to read in its entirety as
follows:
"7.8 Dividends. Declare or pay any dividends or make any other
distribution upon its Equity Interests, except dividends by Subsidiaries
of Company to Company."
7. 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.
8. 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 and delivery by
Company to Bank of replacement Revolving Credit Notes and Term Notes in form
acceptable to the Agent, (d) evidence of the construction of the redemption of
the Preferred Shares and common stock of Company owned by Strength Capital
Partners, L.P. for an aggregate purchase price not exceeding $4,488,000 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.
9. 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.
10. Capitalized terms not defined herein shall have the meanings given to
them in the Agreement.
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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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Its: Vice President Its: 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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BANK ONE N.A
By: /s/ Xxxxxxx X. Xxxxx
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Its: First Vice President
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