EXHIBIT 10.14
LINE OF CREDIT LOAN AGREEMENT
This Agreement's date is September 30, 2003. Its parties are N.P. PREMIUM
FINANCE COMPANY, a Michigan corporation, 00000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX
00000 ("Borrower") and NORTH POINTE INSURANCE COMPANY, a Michigan insurance
corporation, 00000 Xxxxxxxx Xxxx, Xxxxxxxxxx, XX 00000 ("Lender").
BACKGROUND
Borrower is seeking line of credit financing for its insurance premium
finance business. Lender, an insurance company, is Borrower's sister
corporation. Lender has agreed to provide this financing for the Borrower solely
for the financing of insurance premiums paid to Lender. This agreement's terms
are stated below.
TERMS
1. THE INDEBTEDNESS
1.1 INITIAL LENDING. So long as Borrower is not in default under
this or any other agreement between Borrower on the one hand and Lender or any
of its affiliates on the other, Lender will lend to Borrower, sums not to exceed
$1,500,000 in aggregate principal amount at any one time outstanding, from this
Agreement's effective date until it is terminated. This lending will be used
solely to finance premiums paid to Lender. This lending-borrowing relationship
will be evidenced by a Promissory Note ("Line of Credit Note") given by Borrower
to Lender with the same date as this Agreement.
1.2 TERMINATION. This Agreement may be terminated at any time, for
any reason, by a written notice from Lender to Borrower.
1.3 INTEREST AND MATURITY. The Note will be due UPON DEMAND. The
outstanding principal balance, while not in default, will bear interest at a
rate equal to the so-called "prime rate of interest" published in the Wall
Street Journal, and adjusted monthly. Interest will be billed and collected
monthly.
1.4 DEFAULT RATE. During any period(s) of default under this Loan
Agreement, interest shall accrue on the balance owing under the Note at a rate
equal to four (4) points above the so-called "prime rate of interest" published
in the Wall Street Journal and adjusted quarterly. In no event will the interest
charged under the Note exceed the legal maximum rate.
1.5 DRAWING ON THE LINE OF CREDIT. To receive an advance under the
Note, Borrower will deliver to Lender a written request for a draw. Lender will
respond to the request for the draw by transferring the amount of money needed
for the advance into a bank account designated by Borrower.
1.6 PREPAYMENT. Borrower may prepay the Note in whole or in part
without prejudice to Borrower to reborrow under the terms of this Article 1.
1.7 REPAYMENT. Borrower will make monthly interest payments on the
Note by check to Lender by the 15th of the month for interest earned the prior
month.
2. DOCUMENTS FURNISHED TO LENDER. Borrower will furnish Lender, upon
Lender's request from time to time, in form to be satisfactory to Lender (i)
certified copies of resolutions of Borrower's Board of Directors evidencing
approval of any of this transaction as a whole or any particular borrowing, (ii)
certified copies of Borrower's Articles of Incorporation and Bylaws, (iii) a
certificate of good standing from Borrower's state of incorporation and/or from
each jurisdiction in which it is required to be qualified to do business, or
(iv) evidence that Borrower's premium finance license in the state of Michigan
is fully effective.
3. REPRESENTATIONS AND WARRANTIES.
Borrower makes the representations and warranties below knowing that
Lender is relying on them in entering into this Agreement. They will be deemed
to be continuing representations and warranties during this Agreement's term.
3.1 ORGANIZATION, STANDING AND POWER. Borrower is a corporation duly
organized and existing in good standing under the laws of the State of Michigan.
Borrower is in good standing in each jurisdiction in which it is required to be
qualified to do business. Execution, delivery and performance of this Agreement
and other documents and instruments required under this Agreement, and the
issuance of the Note by Borrower are within its corporate powers. These actions
have been authorized, do not contravene law or the terms of Borrower's Articles
of Incorporation or Bylaws, and do not require the consent or approval of any
governmental body, agency or authority. This Agreement and all related documents
including the Note, when issued and delivered, will be valid and binding in
accordance with their terms.
3.2 EXECUTION, DELIVERY AND PERFORMANCE. Borrower's execution,
delivery and performance of this Agreement and all related documents including
the Note does not contravene the unwaived terms of any indenture, agreement or
undertaking binding Borrower.
3.3 PENDING OR THREATENED LITIGATION. No litigation or other legal
or administrative proceeding is pending, or to the knowledge of Borrower's
officers, is threatened against Borrower, the outcome of which could materially
impair the Borrower's financial condition or the ability of Borrower to carry on
its business.
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3.4 ERISA COMPLIANCE. Borrower does not maintain or contribute to
any Pension Plan subject to Title IV of the "Employee Retirement Income Security
Act of 1974" ("ERISA").
3.5 TAX RETURNS. All of Borrower's required tax returns and tax
reports have been filed or extensions obtained, and all taxes, assessments and
other governmental charges or levies (other than those presently payable without
penalty and those currently being contested in good faith for which adequate
reserves have been established) upon Borrower (or any of its properties) which
are due and payable have been paid. The charges, accruals and reserves on the
books of Borrower in respect of the Federal income tax for all periods are
adequate in the opinion of Borrower.
3.6 NO SUBSIDIARIES. Borrower has no subsidiaries.
3.7 COMPLIANCE WITH LAWS. Borrower is in compliance with all
applicable laws, ordinances and regulations. Borrower has all approvals,
authorizations, consents, licenses, orders and other permits of all governmental
agencies and authorities, whether federal, state or local, required to permit
the operation of its business as presently conducted, except such approvals,
authorizations, consents, licenses, orders and other permits with respect to
which the failure to have can be cured without having an adverse effect on the
operation of such business. In particular, all of Borrower's insurance agent,
insurance agency, and/or premium finance licenses necessary for it to conduct
its business are fully effective.
3.8 NO MATERIAL OMISSION. No representation or warranty by Borrower
in this Agreement, nor any statement or certificate (including financial
statements) furnished or to be furnished to Lender pursuant to this Agreement or
will contain any untrue statement of any fact or omits or will omit to state a
fact necessary to make such representation, warranty, statement or certificate
not misleading.
4. AFFIRMATIVE COVENANTS.
Borrower will do all of the following so long as Lender may make any
advance, and so long as any indebtedness remains outstanding, under this
Agreement.
4.1 DOCUMENTS. Borrower will furnish Lender upon its request.
(a) Borrower's financial statements, including a balance sheet as at
the end of such year and the related statements of income and cash flows for
such year, reviewed by independent certified public accountants satisfactory to
Lender, and monthly internally prepared balance sheet and income and cash flow
statements.
(b) Promptly, and in form to be satisfactory to Lender, such other
information as Lender may reasonably request from time to time.
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4.2 DEBTS. Borrower will pay and discharge all taxes, and
contractual obligations calling for the payment of money, before they and all
other debts become overdue, unless and to the extent only that such a payment is
being contested in good faith.
4.3 INSURANCE. Borrower will maintain insurance coverage on its
physical assets and against other business risks in such amounts and of such
types as are customarily carried by companies similar in size and nature,
including errors and omissions coverage. If Borrower acquires additional
property, or incurs additional risks of any nature, it will increase this
insurance coverage in such manner and to such extent as prudent business
judgment and present practice would dictate.
4.4 RIGHT TO INSPECT. Borrower will permit Lender, and its
attorneys, accountants and representatives, to examine Borrower's books,
accounts, records, ledgers and assets, at all reasonable times upon Lender's
oral or written request.
4.5 DEFAULT. Borrower will promptly notify Lender of any condition
or event which constitutes, or with the running of time and/or the giving of
notice would constitute, an event of default under this Agreement, and promptly
inform Lender of the existence or occurrence of any condition or event which
could have a material adverse effect upon Borrower's financial condition.
4.6 COMPLIANCE WITH LAWS. Borrower will maintain in full force and
effect all franchises, permits, licenses or other authorizations which are
material to the business's operation, and comply with their terms, and the
applicable laws, rules, regulations and orders of regulatory agencies or
authorities having jurisdiction over its business. In particular, all of
Borrower's insurance agent, insurance agency, and/or premium finance licenses
necessary for it to conduct its business will remain fully effective during this
Agreement's term.
5. NEGATIVE COVENANTS.
Borrower will not do any of the following while Lender may make any
advance, or while any indebtedness remains outstanding, under this Agreement.
5.1 NO CHANGE IN CAPITAL STRUCTURE. Borrower will not purchase,
acquire, issue or redeem any of its capital stock or make any material change in
its capital structure or general business objects or purpose.
5.2 NO MERGER OR ASSET SALE. Borrower will not enter into any
merger, share exchange or consolidation or sell, lease, transfer, or dispose of
all, substantially all, or any material part of its assets, except in the
ordinary course of its business.
5.3 NO ADDITIONAL BORROWING. Borrower will not become or remain
obligated for any indebtedness for borrowed money, except (a) indebtedness to
Lender, and
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(b) current unsecured trade, utility or non-extraordinary accounts
payable arising in the ordinary course of Borrower's business.
6. EVENTS OF DEFAULT
6.1 EVENTS OF DEFAULT. The occurrence of any of the following will
constitute the occurrence of an "Event of Default" under this Agreement.
(a) non-payment of any installment of the principal or interest on
the Note when due in accordance with its terms, or upon non-payment of any other
outstanding indebtedness of Borrower to Lender under this Agreement or under any
other instrument or evidence of indebtedness when due in accordance with its
terms;
(b) default in the observance or performance of any of this
Agreement's terms;
(c) any representation or warranty made by Borrower or in any
instrument submitted pursuant to this Agreement proves untrue in any material
respect;
(d) default in the observance or performance of any of the
conditions, covenants or agreements of the terms of any other document entered
into by Borrower in connection with this Agreement;
(e) default in the payment of any other obligation of Borrower for
borrowed money, or in the observance or performance of any conditions, covenants
or agreements related or given with respect to any such borrowings;
(f) judgment for the payment of money in excess of $25,000 in the
aggregate is rendered against Borrower, which remain unpaid, unvacated, unbonded
or unstayed by appeal or otherwise from the date of its entry throughout the
notice period described in Section 6.2 below; and
(g) any change for any reason in Borrower's management, ownership or
control that in Lender's reasonable judgment will adversely affect future
prospects for the successful operation of Borrower or its performance of this
Agreement.
6.2 OPPORTUNITY TO CURE. When an Event of Default occurs, Lender
will notify the Borrower of the default in writing ("Lender's Notice"). Borrower
will have 10 days from the date of Lender's Notice to cure any monetary default
and 15 days from the date of Lender's Notice to cure any non-monetary default.
If Borrower fails to cure within these time periods, Lender may exercise the
remedies described below.
6.3 REMEDIES UPON DEFAULT. Upon the occurrence of an uncured Event
of Default, Lender may then, or at any time thereafter, give notice to Borrower
declaring all outstanding indebtedness under this Agreement and under the Note
to be due and payable,
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without further notice and demand. In that event, Lender may exercise any
remedies available to it under this Agreement or applicable law. In particular
as to remedies, and notwithstanding anything in this Agreement to the contrary,
Lender may concurrently with sending the Lender's Notice stop making any
advances under the Line of Credit Note.
6.4 BANKRUPTCY. If a creditors committee is appointed for Borrower's
business or if Borrower makes a general assignment for the benefit of creditors,
is adjudicated bankrupt, files a voluntary petition or it's the subject of an
involuntary petition in bankruptcy or to effect a plan or arrangement with
creditors; or files an answer to a creditor's petition or other petition filed
against it, admitting its material allegations for an adjudication in bankruptcy
or for reorganization; or applies for or permits the appointment of a receiver,
or trustee or custodian for any of its property or assets; or such a receiver,
trustee or custodian is appointed for any of its property or assets and their
receiver, trustee or custodian is not discharged within sixty (60) days after
the date of appointment; or if an order is entered and not dismissed or stayed
within sixty (60) days from its entry, approving any petition for reorganization
of Borrower, then the Note and its indebtedness will automatically become
immediately due and payable, and Lender will make no further advances under the
Note.
7. MISCELLANEOUS
7.1 NOTICES. Notices and other communications required or permitted
under this Agreement must be in writing. They will be deemed given (a) when
personally delivered or sent by facsimile transmission or (b) on the business
day following the day the notice or communication is sent by the US Mail postage
pre-paid or nationally recognized courier to a party at the address above.
7.2 CONTINUITY AND WAIVER. No amendment to, or waiver of any
provision of, this Agreement will be valid unless it is in writing and signed by
the parties.
7.3 INVALID PROVISION. The invalidity or unenforceability of any
particular provision of this Agreement will not affect the other provisions of
this Agreement. In such a case, this Agreement will be construed as if the
invalid or unenforceable provision was omitted.
7.4 BINDING EFFECT. The parties intend that this Agreement both bind
and benefit them, and their respective successors and assigns.
7.5 ENTIRE AGREEMENT. This Agreement, its Exhibits and the all
related documents signed pursuant to this Agreement, together constitute the
parties' entire agreement. It supersedes any prior discussions, agreements and
understandings relating to the subject matter of this Agreement.
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7.6 REMEDIES CUMULATIVE. The rights, remedies and benefits provided
by this Agreement are cumulative and not exclusive of any other rights, remedies
and benefits allowed by law. A party's failure or delay to exercise any right
will not waive that right, nor will the single or partial exercise of any right
preclude any other exercise of that or any other right. The waiver of one breach
of, or default under, this Agreement is not a waiver of any other breach or
default.
7.7 GOVERNING LAW. Michigan law governs this Agreement.
7.8 FEES AND EXPENSES. Each party will bear its own costs relating
to this transaction.
7.9 SURVIVAL. This Agreement's covenants, representations and
warranties shall survive its execution.
7.10 FURTHER ASSURANCES. After Closing, the parties will sign
documents or do any other act reasonably requested by another party, as may be
appropriate, necessary or required to carry out this Agreement's transactions.
7.11 NO THIRD PARTY BENEFICIARY. The parties do not confer any
benefits on any person who does not sign this Agreement.
7.12 SECTION HEADINGS. This section headings are included solely for
convenience and will not be used to interpret or enforce this Agreement.
7.13 INTERPRETATION. The parties have all contributed to drafting
this Agreement. There will be no presumption favoring or burdening any party
based upon the identity of the drafting party.
"Borrower"
N.P. PREMIUM FINANCE COMPANY,
a Michigan corporation
By: /s/ Xxxx X. Xxxxx
------------------------------------
Xxxx X. Xxxxx
General Manager/Treasurer
"Lender"
NORTH POINTE INSURANCE COMPANY, a
Michigan insurance corporation
By: /s/ B. Xxxxxxx Xxxxxxx
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B. Xxxxxxx Xxxxxxx
President
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