EXHIBIT 10.1
FIRST AMENDMENT TO AND WAIVER OF RESTATED CREDIT AGREEMENT
This First Amendment to and Waiver of Restated Credit Agreement (the
"Amendment") is entered into as of this 23rd day of May, 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 0000 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;
B. WHEREAS, Borrower has requested Bank to waive the Event of Default
described in Section 9.3 of the Agreement, to the extent only that such Event of
Default is caused solely as a result of Guarantee Obligation of even date
herewith by Borrower to guaranty the obligations of Renaissance Alliance
Insurance Services, LLC ("Renaissance"), under that certain Letter Agreement
between Renaissance and Bank (the "Guarantee Default"); and
C. 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. WAIVER
2.1. Bank waives the Event of Default described in Section 9.3
of the Agreement, but only to the extent that such Event of Default
arises solely as a result of the Guarantee Default.
3. AMENDMENT TO AGREEMENT
3.1. Section 10.1(g) of the Agreement is hereby amended and
restated in its entirety as follows:
"(g) default (i) in the payment of any indebtedness for
borrowed money (other than Indebtedness hereunder) of
Company or any Subsidiary in excess of One Hundred
Thousand Dollars ($100,000) in the aggregate when due
(whether by acceleration or otherwise)
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EXHIBIT 10.1
and continuance thereof beyond any applicable period of
cure; (ii) or other failure to comply with the terms of
any other obligation of Company or any Subsidiary with
respect to any indebtedness for borrowed money (other
than Indebtedness hereunder) in excess of One Hundred
Thousand Dollars ($100,000) in the aggregate, which with
the giving of notice or passage of time or both would
permit the holder or holders thereto to accelerate such
other indebtedness for borrowed money or terminate its
commitment thereunder, as applicable; or (iii) of the
terms and conditions of the Guarantee Obligation of
Company evidenced by that certain guaranty dated as of
May __, 2003, whereby Company guarantees to Bank the
obligations of Renaissance Alliance Insurance Services,
LLC, a Massachusetts limited liability company."
4. REPRESENTATIONS
Borrower hereby represents and warrants that:
4.1. 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.
4.2. 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.
4.3. Except to the extent rendered untrue solely by virtue of
the existence of the Guarantee Default, 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.
4.4. Except for the Guarantee Default, and 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 that certain Line of Credit Note and that certain Term
Note, each dated as of September 25, 2002 (the "Notes") or the
Agreement, has occurred and is continuing as of the date hereof.
5. MISCELLANEOUS
5.1. 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.
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EXHIBIT 10.1
5.2. 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.
5.3. 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.
5.4. Except as specifically set forth in Section 2.1 hereof,
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.
5.5. 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.
5.6. 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: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Its: President
COMERICA BANK, a Michigan banking corporation
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
Its: Account Officer
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