EXHIBIT 10.1
THIRD AMENDMENT TO RESTATED CREDIT AGREEMENT
This Third Amendment to Restated Credit Agreement (the "Amendment") is
entered into as of this _______ day of September, 2003, by and between COMERICA
BANK, a Michigan banking corporation ("Bank"), with offices at One Detroit
Center, 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, and MEADOWBROOK INSURANCE
GROUP, INC., a Michigan corporation, with offices at 00000 Xxxxxxxxx Xxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxxx 00000 ("Borrower").
RECITALS:
A. Borrower and Bank entered into a certain Restated Credit
Agreement dated as of September 25, 2002 (as amended from time to time, the
"Agreement") pursuant to which Borrower incurred certain indebtedness and
obligations and granted the Bank certain security for such indebtedness and
obligations; and
B. WHEREAS, Borrower and Bank desire to amend the Agreement upon
the following terms and conditions.
NOW THEREFORE, for good and valuable consideration, the parties agree
as follows:
1. DEFINITIONS
1.1 Capitalized terms used herein and not defined to the contrary
have the meanings given them in the Agreement.
2. AMENDMENT TO AGREEMENT
2.2 Section 1 of the Credit Agreement is amended by inserting the
following definitions of "Dekania Obligations" and "Dekania Term Sheet" in
appropriate alphabetical order:
"Dekania Obligations" shall mean the obligations of Borrower as either
the Issuer or Guarantor of the "Securities" as defined in and described
by Dekania Term Sheet
"Dekania Term Sheet" means that certain Dekania Trust Preferred/Surplus
Note Securities Term Sheet accepted by Borrower as of September 22,
2003 (a true copy of which has been delivered to Bank).
2.2 Section 9.1 of the Credit Agreement is hereby amended by
replacing the period at the end of clause (k) thereof with a semicolon and
inserting, thereafter, the following:
"(k) from and after the closing on and issuance of the "Securities"
as described in and on terms consistent with the Dekania Term Sheet,
the Dekania Obligations."
- 1 -
2.3 Section 9.3 of the Agreement is hereby amended and restated in
its entirety as follows:
"9.3 Limitation on Guarantee Obligations. Create, incur, assume or
suffer to exist any Guarantee Obligation except:
(a) pursuant to the Loan Documents; and
(b) from and after the closing on and issuance of the "Securities"
as described in and on terms consistent with the Dekania Term Sheet the
Dekania Obligations."
3. REPRESENTATIONS
Borrower hereby represents and warrants that:
3.1 Execution, delivery and performance of this Amendment and any
other documents and instruments required under this Amendment are within
Borrower's powers, have been duly authorized, are not in contravention of law or
the terms of Borrower's articles of incorporation/charter, or bylaws, and do not
require the consent or approval of any governmental body, agency, or authority.
3.2 This Amendment and any other documents and instruments
required under this Amendment or the Agreement, when issued and delivered under
this Amendment or the Agreement, will be valid and binding in accordance with
their terms.
3.3 The continuing representations and warranties of Borrower set
forth in Sections 7.1 through 7.19 of the Agreement are true and correct on and
as of the date hereof with the same force and effect as made on and as of the
date hereof.
3.4 Except as previously disclosed to Bank in writing, no default
or event of default, or condition or event which, with the giving of notice or
the running of time, or both, would constitute a Default or Event of Default
under the Notes or the Agreement, has occurred and is continuing as of the date
hereof.
4. MISCELLANEOUS
4.1 This Amendment may be executed in as many counterparts as Bank
and Borrower deem convenient, and shall become effective upon: (a) delivery to
Bank of all executed counterparts hereof; and (b) delivery to Bank, in form and
substance satisfactory to Bank of each of the documents, instruments and fees
listed on the Checklist attached as Exhibit "A" hereto.
4.2 Borrower and Bank acknowledge and agree that except as
specifically amended hereby, all of the terms and conditions of the Agreement
and the Notes and loan documents related thereto (collectively, the "Loan
Documents") remain in full force and effect in accordance with their original
terms.
- 2 -
4.3 Borrower shall pay all of Bank's legal costs and expenses
(including attorneys' fees and expenses) incurred in the negotiation,
preparation and closing hereof, including, without limitation, costs of all lien
searches and financing statement filings.
4.4 Except as specifically set forth herein, nothing set forth in
this Amendment shall constitute, or be interpreted or construed to constitute, a
waiver of any right or remedy of Bank, or of any default or event of default
whether now existing or hereafter arising and whether now known or hereafter
discovered by or disclosed to Bank.
4.5 Bank expressly reserves the right to exercise any or all
rights and remedies provided under the Loan Documents and applicable law except
as modified herein. Bank's failure to immediately exercise such rights and
remedies shall not be construed as a waiver or modification of those rights or
an offer of forbearance.
4.6 Borrower, in every capacity, hereby waives, discharges and
forever releases Bank, Bank's employees, officers, directors, attorneys,
stockholders and successors and assigns, from and of any and all claims, causes
of action, defenses, counterclaims or offsets Borrower may have or may have made
which (in any case) could be based on facts or circumstances known to Borrower
as of the date of this Amendment, against any or all of Bank, Bank's employees,
officers, directors, attorneys, stockholders and successors and assigns.
IN WITNESS WHEREOF, this Amendment has been executed as of the day
first stated above.
MEADOWBROOK INSURANCE GROUP, INC.,
a Michigan corporation
By: ______________________________
Xxxxxx X. Xxxxxx
Its: President
COMERICA BANK,
a Michigan banking corporation
By: ______________________________
Xxxxx X. Xxxxxxx
Its: Account Officer
- 3 -
EXHIBIT "A"
CLOSING CHECKLIST
THIRD AMENDMENT TO
MEADOWBROOK INSURANCE GROUP, INC.
RESTATED CREDIT AGREEMENT
WITH
COMERICA BANK
SEPTEMBER _____, 2003
I. AUTHORIZING DOCUMENTS
A. Meadowbrook Insurance Group, Inc.
1. Recertification of Authority Documents
2. Good Standing Certificate (Michigan)
II. LOAN DOCUMENTS
3. Third Amendment to Restated Credit Agreement
4. Reaffirmation of Guaranties
- 4 -
