GUARANTY
EXHIBIT 4.7
This GUARANTY is made as of this 2nd day of July, 2007 by the undersigned (“Guarantor”) to
Comerica Bank, as Agent (“Agent”) for and on behalf of the Banks (as defined below).
RECITALS
A. North Pointe Holdings Corporation, a Michigan corporation (“Borrower”) Agent, and the
lending institutions from time to time party thereto (the “Banks”) entered into a Second Amended
and Restated Credit Agreement dated as of June 30, 2006 (as amended, restated, supplemented or
replaced from time to time, the “Credit Agreement”).
B. Guarantor desires to see the success of the Borrower and furthermore, Guarantor shall
receive direct and/or indirect benefits from extensions of credit made or to be made pursuant to
the Credit Agreement to the Borrower.
C. Agent is acting as Agent for the Banks pursuant to Section 11.1 of the Credit Agreement.
NOW, THEREFORE, as a continuing inducement to Agent and the Banks to enter into and perform
their obligations under the Credit Agreement, the Guarantor and Agent agree as follows:
1. Definitions. Unless otherwise provided herein, all capitalized or other terms in
this Guaranty shall have the meanings specified in the Credit Agreement. The term “Banks” as used
herein shall include any successors or assigns of the Banks, in accordance with the Credit
Agreement.
2. Guaranty. The Guarantor hereby guarantees to the Banks the due and punctual payment
to the Banks when due, whether by acceleration or otherwise, of all amounts, including, without
limitation, principal, interest (including interest accruing on or after the filing of any petition
in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding by
Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such a
proceeding), and all other liabilities and obligations, direct or indirect, absolute or contingent,
due or to become due, now existing or hereafter incurred, which may arise under, out of, or in
connection with:
(a) the Credit Agreement;
(b) all other Indebtedness (as defined in the Credit Agreement) of the Borrower under
or in connection with the Loan Documents, whether such Indebtedness is now existing or
hereafter arising; and
(c) all extensions, renewals and amendments of or to the Credit Agreement or such other
Indebtedness, or any replacements or substitutions therefor;
whether on account of principal, interest, reimbursement obligations, fees, indemnities, and
reasonable costs and expenses (including without limitation, all reasonable fees and disbursements
of counsel to the Agent or any Bank) or otherwise, and hereby agrees that if the Borrower shall
fail to pay any of such amounts when and as the same shall be due and payable, or shall fail to
perform and discharge any covenant, representation or warranty in accordance with the terms of the
Credit Agreement or any of the other Loan Documents (subject, in each case, to any applicable
periods of grace or cure), it will forthwith pay to the Agent, on behalf of the Banks, an amount
equal to any such amount and will pay any and all damages that may be incurred or suffered in
consequence thereof by Agent or any of the Banks and all reasonable expenses, including reasonable
attorneys’ fees, that may be incurred by Agent in enforcing such covenant, representation or
warranty of the Borrower and in enforcing the covenants and agreements of this Guaranty.
3. Unconditional Character of Guaranty. The obligations of the Guarantor under this
Guaranty shall be absolute and unconditional, and shall be a guaranty of payment and not of
collection, irrespective of the validity, regularity or enforceability of the Credit Agreement or
any of the other Loan Documents, or any provision thereof, the absence of any action to enforce the
same, any waiver or consent with respect to or any amendment of any provision thereof, the recovery
of any judgment against any Person or action to enforce the same, any failure or delay in the
enforcement of the obligations of the Borrower under the Credit Agreement or any of the other Loan
Documents, or any setoff, counterclaim, recoupment, limitation, defense or termination, whether
with or without notice to any of the Guarantors. The Guarantor hereby waives diligence, demand for
payment, filing of claims with any court, any proceeding to enforce any provision of the Credit
Agreement executed by the Borrower or any of the other Loan Documents, any right to require a
proceeding first against Borrower or against any other guarantor or other party providing
collateral, or to exhaust any security for the performance of the obligations of the Borrower, any
protest, presentment, notice or demand whatsoever, and the Guarantor hereby covenants that this
Guaranty shall not be terminated, discharged or released except, subject to Section 6.8 hereof,
upon final payment in full subject to no revocation or rescission of all amounts due and to become
due from Borrower, as and to the extent described in Section 2 above, and only to the extent of any
such payment, performance and discharge. The Guarantor further covenants that no security now or
subsequently held by the Agent or the Banks for the payment of the Indebtedness evidenced by the
Notes made by the Borrower under the Credit Agreement, or for the payment of any other Indebtedness
of the Borrower to the Agent or the Banks under any Loan Documents, whether in the nature of a
security interest, pledge, lien, assignment, setoff, suretyship, guaranty, indemnity, insurance or
otherwise, and no act, omission or other conduct of Agent or the Banks in respect of such security
(excluding fraud, gross negligence or willful misconduct), shall affect in any manner whatsoever
the unconditional obligation of this Guaranty, and that Agent and each of the Banks, in their
respective sole discretion and without notice to the Guarantor, may release, exchange, enforce,
apply the proceeds of and otherwise deal with any such security without affecting in any manner the
unconditional obligation of this Guaranty.
2
Without limiting the generality of the foregoing, such obligations, and the rights of the
Agent to enforce the same on behalf of the Banks, by proceedings, whether by action at law, suit in
equity or otherwise, shall not be in any way affected by (i) any insolvency, bankruptcy,
liquidation, reorganization, readjustment, composition, dissolution, winding up or other proceeding
involving or affecting the Borrower or others, or (ii) any change in the ownership of any of the
capital stock or other equity interests of the Borrower or any other party providing collateral for
any indebtedness covered by this Guaranty, or any of their respective Affiliates.
The Guarantor hereby waives to the fullest extent possible under applicable law:
(a) any defense based upon the doctrine of marshalling of assets or upon an election of
remedies by Agent or the Banks, including, without limitation, an election to proceed by
non-judicial rather than judicial foreclosure;
(b) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects more
burdensome than that of the principal;
(c) any duty on the part of Agent or any of the Banks to disclose to the Guarantor any
facts Agent or the Banks may now or hereafter know about the Borrower regardless of whether
Agent or any Bank has reason to believe that any such facts materially increase the risk
beyond that which the Guarantor intends to assume or has reason to believe that such facts
are unknown to the Guarantor or has a reasonable opportunity to communicate such facts to
the Guarantor, since the Guarantor acknowledges that he is fully responsible for being and
keeping informed of the financial condition of the Borrower and of all circumstances bearing
on the risk of non-payment of any Indebtedness hereby guaranteed;
(d) any claim for reimbursement, contribution, exoneration, indemnity or subrogation,
or any other similar claim, which the Guarantor may have or obtain against the Borrower by
reason of the existence of this Guaranty, or by reason of the payment by the Guarantor of
any Indebtedness or the performance of this Guaranty or of any other Loan Documents; and
(e) any other event or action (excluding the Guarantor’s compliance with the provisions
hereof) that would result in the discharge by operation of law or otherwise of the Guarantor
from the performance or observance of any obligation, covenant or agreement contained in
this Guaranty.
The Agent and each of the Banks may deal with the Borrower and any security held by them for
the obligations of the Borrower (as aforesaid), in the same manner and as freely as if this
Guaranty did not exist and Agent shall be entitled, on behalf of Banks, without notice to the
Guarantor, among other things, to grant to the Borrower such extension or extensions of time to
perform any act or acts as may seem advisable to Agent (on behalf of the Banks) at any time and
from time to time, and to permit the Borrower to incur additional indebtedness to Agent, the
3
Banks,
or any of them, without terminating, affecting or impairing the validity or enforceability of this
Guaranty or the obligations of the Guarantor hereunder.
The Agent may proceed, either in its own name (on behalf of the Banks) or in the name of the
Guarantor, or otherwise, to protect and enforce any or all of its rights under this Guaranty by
suit in equity, action at law or by other appropriate proceedings, or to take any action authorized
or permitted under applicable law, and shall be entitled to require and enforce the performance of
all acts and things required to be performed hereunder by the Guarantor. Each and every remedy of
the Agent and of the Banks shall, to the extent permitted by law, be cumulative and shall be in
addition to any other remedy given hereunder or now or hereafter existing at law or in equity.
No waiver or release shall be deemed to have been made by the Agent or any of the Banks of any
of its rights hereunder unless the same shall be in writing and signed by all of the Banks or on
behalf of the Banks by the Agent, and any such waiver shall be a waiver or release only with
respect to the specific matter involved and shall in no way impair the rights of the Agent or any
of the Banks or the obligations of the Guarantor under this Guaranty in any other respect at any
other time.
At the option of the Agent, the Guarantor may be joined in any action or proceeding commenced
by the Agent against the Borrower or any of the other parties providing collateral for any
indebtedness covered by this Guaranty in connection with or based upon the Credit Agreement or any
of the other Loan Documents or other Indebtedness, or any provision thereof, and recovery may be
had against the Guarantor in such action or proceeding or in any independent action or proceeding
against the Guarantor, without any requirement that the Agent or the Banks first assert, prosecute
or exhaust any remedy or claim against the Borrower and/or any other party providing collateral for
any Indebtedness covered by this Guaranty.
As a separate, additional and continuing obligation, the Guarantor unconditionally and
irrevocably undertakes and agrees with Agent that, should the amounts referred to in Section 2 of
this Guaranty not be recoverable from Guarantor in its capacity as a guarantor under this Guaranty
for any reason whatsoever (including, without limitation, by reason of any provision of the Credit
Agreement or any of the other Loan Documents being or becoming void, unenforceable, or otherwise
invalid under any applicable law) then, notwithstanding any knowledge thereof by Agent and the
Banks or any of them at any time, the Guarantor as sole, original and independent obligor, upon
demand by Agent, will make payment to Agent of all such amounts, by way of a full indemnity.
4. Benefit of the Credit. The Guarantor is expecting to derive benefit, directly or
indirectly, from the credit extended by the Banks to Borrower.
5. Collateral for Guaranty. The obligations of the Guarantor under this Guaranty shall
be secured by the Pledge Agreement executed and delivered by Guarantor to Agent, pursuant to the
Credit Agreement, together with such other Loan Documents as required to be executed and delivered
by the Guarantor concurrently with or subsequent to the date hereof, all
4
pursuant to the terms and
conditions of the Credit Agreement or any of the other Loan Documents.
6. Miscellaneous.
6.1 Governing Law. This Guaranty has been delivered in Michigan and shall be
interpreted and the rights of the parties hereunder shall be determined under the laws of, and be
enforceable in, the State of Michigan.
6.2 Severability. If any term or provision of this Guaranty or the application thereof
to any circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Guaranty, or the application of such term or provision to circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Guaranty shall be valid and enforceable to the fullest extent permitted by law.
6.3 Notice. All notices and other communications to be made or given pursuant to this
Guaranty shall be sufficient if made or given in writing and shall be given by personal delivery,
by mail, by reputable overnight courier, by telex or by facsimile and addressed or delivered to it
at its address set forth on the signature pages hereof or at such other address as may be
designated by such party in a notice to the other party that complies as to deliver with the terms
of this Section 6.3. Any notice, if personally delivered or if mailed and properly addressed with
postage prepaid and sent by registered or certified mail, shall be deemed given when received or
when delivery is refused; any notice, if given to a reputable overnight courier and properly
addressed, shall be deemed given two (2) Business Days after the date on which it was sent, unless
it is actually received sooner by the named addressee; and any notice, if transmitted by telex or
facsimile, shall be deemed given when received (answerback confirmed in the case of telexes and
receipt confirmed in the case of telecopies).
6.4 Right of Offset. The Guarantor acknowledges the rights of the Agent and of each of
the Banks, upon the occurrence and during the continuance of an Event of Default, to offset against
the Indebtedness of Guarantor to the Banks under this Guaranty, any amount owing by the Agent or
the Banks, or either or any of them to the Guarantor, whether represented by any deposit of the
Guarantor with the Agent or any of the Banks or otherwise.
6.5 Right to Cure. The Guarantor shall have the right to cure any Event of Default
under the Credit Agreement or the Loan Documents with respect to obligations of the Borrower
thereunder; provided that such cure is effected within the applicable grace period or period for
cure, if any, provided under the Credit Agreement; and provided further that such cure can be
effected in compliance with the Credit Agreement. Except to the extent of payments of principal,
interest and/or other sums actually received by the Agent (or the Banks) pursuant to such cure, the
exercise of such right to cure by the Guarantor shall not reduce or otherwise affect the liability
of the Guarantor under this Guaranty.
6.6 Consent to Jurisdiction. The Guarantor and Agent hereby irrevocably submit to the
non-exclusive jurisdiction of any United States Federal or Michigan state court sitting in Detroit
in any action or proceeding arising out of or relating to this Guaranty and the
5
Guarantor and Agent
hereby irrevocably agree that all claims in respect of such action or proceeding may be heard and
determined in any such United States Federal or Michigan state court. The Guarantor irrevocably
consents to the service of any and all process in any such action or proceeding brought in any
court in or of the State of Michigan by the delivery of copies of such process to the Guarantor at
his address specified on the signature page hereto or by certified mail directed to such address or
such other address as may be designated by Guarantor in a
notice to the other parties that complies as to delivery with the terms of Section 6.3.
Nothing in this Section shall affect the right of the Agent to serve process in any other manner
permitted by law or limit the right of the Agent to bring any such action or proceeding against the
Guarantor or any of his property in the courts of any other jurisdiction. The Guarantor hereby
irrevocably waives any objection to the laying of venue of any such suit or proceeding in the above
described courts.
6.7 Amendments. The terms of this Guaranty may not be waived, altered, modified,
amended, supplemented or terminated in any manner whatsoever except as provided herein and in
accordance with the Credit Agreement.
6.8 Release. Upon payment in full of the Indebtedness or the satisfaction by Guarantor
of his obligations hereunder and any Loan Documents executed by the Guarantor pursuant to the
Credit Agreement thereto, and when Guarantor is no longer subject to any obligation hereunder or
thereunder, the Agent shall deliver to the Guarantor, upon written request therefor, (i) a written
release of this Guaranty and (ii) appropriate discharges of any Collateral provided by the
Guarantor for this Guaranty; provided however that the effectiveness of this Guaranty and such
Collateral shall continue or be reinstated, as the case may be, in the event: that any payment
received or credit given by the Agent or the Banks, or any of them, is returned, disgorged,
rescinded or required to be recontributed to any Person as an avoidable preference, impermissible
setoff, fraudulent conveyance, restoration of capital or otherwise under any applicable state,
federal or national law of any jurisdiction, including without limitation laws pertaining to
bankruptcy or insolvency, and this Guaranty shall thereafter be enforceable against the Guarantor
as if such returned, disgorged, recontributed or rescinded payment or credit had not been received
or given by the Agent or the Banks, and whether or not the Agent or any Bank relied upon such
payment or credit or changed its position as a consequence thereof.
6.9 Joint and Several Obligation, etc. The obligation of each of the Guarantors, if
more than one, under this Guaranty shall be several and also joint, each with all and also each
with any one or more of the others, and may be enforced against each severally, any two or more
jointly, or some severally and some jointly. Any one or more of the Guarantors may be released from
its obligations hereunder with or without consideration for such release and the obligations of the
other Guarantors hereunder shall be in no way affected thereby. Agent, on behalf of Banks, may fail
or elect not to prove a claim against any bankrupt or insolvent Guarantor and thereafter, Agent and
the Bank may, without notice to any Guarantors, extend or renew any part or all of any indebtedness
of any of the Guarantors, and may permit any of the Guarantors to incur additional indebtedness,
without affecting in any manner the unconditional obligation of the remaining Guarantors. Such
action shall not affect any right of contribution among the Guarantors.
6
6.10 Waiver of Jury Trial. COLLATERAL AGENT AND THE GUARANTOR AFTER CONSULTING OR
HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF
THIS GUARANTY OR ANY RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED BY THIS GUARANTY OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTION OF ANY OF THEM. NEITHER THE COLLATERAL AGENT NOR ANY OF THE
GUARANTORS SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY SUCH ACTION IN WHICH A JURY
TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.
THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY THE
AGENT OR THE GUARANTOR EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
6.11 Limitation under Applicable Insolvency Laws. Notwithstanding anything to the
contrary contained herein, it is the intention of the Guarantor, Agent and the Banks that the
amount of the Guarantor’s obligations hereunder shall be in, but not in excess of, the maximum
amount thereof not subject to avoidance or recovery by operation of applicable law governing
bankruptcy, reorganization, arrangement, adjustment of debts, relief of debtors, dissolution,
insolvency, fraudulent transfers or conveyances or other similar laws (collectively, “Applicable
Insolvency Laws”). To that end, but only in the event and to the extent that the Guarantor’s
obligations hereunder or any payment made pursuant thereto would, but for the operation of the
foregoing proviso, be subject to avoidance or recovery under Applicable Insolvency Laws, the amount
of the Guarantor’s obligations hereunder shall be limited to the largest amount which, after effect
thereto, would not, under Applicable Insolvency Laws, render the Guarantor’s obligations hereunder
unenforceable or avoidable or subject to recovery under Applicable Insolvency Laws. To the extent
any payment actually made hereunder exceeds the limitation contained in this Section 6.11, then the
amount of such excess shall, from and after the time of payment by the Guarantor, be reimbursed by
the Banks upon demand by the Guarantor. The foregoing proviso is intended solely to preserve the
rights of the Agent and the Banks hereunder against the Guarantor to the maximum extent permitted
by Applicable Insolvency Laws and neither Borrower nor the Guarantor nor any other Person shall
have any right or claim under this Section 6.11 that would not otherwise be available under
Applicable Insolvency Laws.
7
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of the date set
forth above.
| GUARANTOR: | ||||||
| WITNESSES: | CAPITAL COLLECTION SERVICES, INC. | |||||
| By: | ||||||
| Xxxxx X. Xxxxx | ||||||
| Its: | Chief Financial Officer | |||||
| GUARANT | OR’S ADDRESS: | |||||
ACCEPTE
|
D BY: | |||
| COMERICA BANK, as Agent, on behalf of the Banks |
||||
By: |
||||
Its:
|
Vice President | |||
