EXHIBIT 10.11
AMENDED AND RESTATED PLEDGE AGREEMENT
(FINANCIAL)
THIS STOCK PLEDGE ("Stock Pledge") made as of this 26th day of January,
2004 by and between North Pointe Financial Services, Inc., a Michigan
corporation ("Company") and Comerica Bank, a Michigan banking corporation, as
Agent for and on behalf of the Banks (as defined below) ("Secured Party").
RECITALS
A. Pursuant to that certain Amended and Restated Credit Agreement dated as
of January 26, 2004 (as amended or modified from time to time, the "Credit
Agreement") by and among North Pointe Holdings Corporation ("NPHC"), Secured
Party as Agent and the financial institutions which are named in and are
signatories to the Credit Agreement ("Banks"), the Banks have agreed to extend
credit to NPHC on the terms set forth in the Credit Agreement.
B. As a condition to the performance of their respective obligations under
the Credit Agreement, the Banks, and Secured Party, as Agent for the Banks, have
required that Company provide this Stock Pledge to Secured Party, as Agent for
the Banks, granting various security interests, liens and other encumbrances as
security for the obligations under the Notes, the Credit Agreement and the other
Loan Documents.
C. Agent is acting as Agent for the Banks pursuant to Section 11.1 of the
Credit Agreement.
D. Company executed and delivered to Agent a Pledge Agreement dated June
14, 2002 ("Existing Pledge Agreement") and Company and Agent desire to amend and
restate the Existing Pledge Agreement in its entirety.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants
and agreements hereinafter set forth, the parties hereto agree that the Existing
Pledge Agreement is amended and restated as follows:
I. Creation of Security Interest.
Company hereby grants to Secured Party, on behalf of Banks and the Agent,
a security interest in the property described in paragraph II, below
("Collateral").
II. Collateral.
The Collateral consists of the following:
(a) 100% of the outstanding shares of each class of stock, (or other
ownership interest) of each Subsidiary listed on Schedule A hereto (as such
Schedule may be revised pursuant to Section III B.1 hereof), together with all
of the certificates and/or instruments representing such shares of stock (or
other ownership interest), and all cash, securities,
dividends, rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares;
(b) 100% of any additional shares of stock, (or other ownership interest)
of any of the Subsidiaries listed on Schedule A hereto, at any time and from
time to time acquired by the Company in any manner, all of the cash, securities,
dividends, rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
of such shares;
(c) All other property hereafter delivered to the Agent in substitution
for or in addition to the foregoing, all certificates and instruments
representing or evidencing such property, and all cash, securities, interest,
dividends, rights and other property at any time and from time to time received,
receivable or otherwise distributed in respect of or in exchange for any or all
thereof; and
(d) All products and proceeds of all of the foregoing.
III. Company's Obligations.
A. Payment of Secured Indebtedness. The security interest created herein
is given as security for:
(1) All of NPHC's obligations contained in or arising under or in
connection with the Credit Agreement and the Notes issued by it from time to
time pursuant to the Credit Agreement, and all obligations of the NPHC contained
in or arising under the other Loan Documents executed by the NPHC;
(2) All of the NPHC's obligations contained in or arising under any
Interest Rate Protection Agreements;
(3) All of the Company's obligations under the Amended and Restated
Guaranty dated _______________, 2004 by Company in favor of the Agent (for the
benefit of the Banks);
(4) The obligations of the Company or NPHC for payment of all sums
hereafter loaned, paid out, expended or advanced by or for the account of the
Banks (or any of them) or by the Secured Party under the terms of this Stock
Pledge, the Credit Agreement, or the other Loan Documents, in connection with
the Collateral or any of the documents or instruments described in this Stock
Pledge, the Credit Agreement or the other Loan Documents;
together with interest thereon as provided for herein or therein; and also
as security for all other indebtedness and liabilities, whether direct,
indirect, absolute or contingent, owing by the Company or NPHC to the Banks in
any manner under the Credit Agreement or the Loan Documents, which hereafter
become due, or that may hereafter be incurred by the Company or NPHC to or
acquired (pursuant to the Credit Agreement or the other Loan Documents) by the
Banks, and all other future obligations of the Company or NPHC to the Banks,
their successors and assigns, howsoever created, arising or evidenced, whether
joint or several, direct or indirect,
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absolute or contingent, primary or secondary, and any judgments that may
hereafter be rendered on such indebtedness or any part thereof, with interest
according to the rates and terms specified, or as provided by law, and any and
all replacements, consolidations, amendments, renewals or extensions of the
foregoing (collectively herein called the "Indebtedness").
B. Protection of Security Interest.
(1) Company shall take any and all steps required to protect the
Collateral, and in pursuance thereof Company agrees that Company shall deliver
or caused to be delivered to Secured Party and Secured Party shall receive
possession, on behalf of Banks, of certificates representing all of the pledged
shares referred to in Schedule A, properly endorsed or with assignments separate
from such certificates in blank for transfer. In addition Secured Party shall
receive proof that appropriate acknowledgments, governmental approvals, share
register entries, local pledge agreements, financing statements, collateral and
other documents covering the Collateral have been executed and delivered by the
appropriate parties and recorded on file with such Persons and in such
jurisdictions as necessary to perfect the security interests, or other liens
granted hereby and/or thereby. The Secured Party from time to time shall revise
Schedule A hereto and promptly deliver a copy thereto to Company and the Banks,
on the effective date of the acquisition or creation by Company of a Subsidiary,
adding to Schedule A the name of each such Subsidiary so acquired or created,
and upon such revision, Company shall be deemed to have pledged 100% of the
capital stock (or other ownership interests) of each such Subsidiary so acquired
or created to Secured Party for and on behalf of Banks.
(2) It will not sell, transfer, assign or otherwise dispose of any of the
Collateral or any interest therein or offer to do so without the prior written
consent of Secured Party, given at the direction of the Majority Banks, or
permit anything to be done that may materially impair the value of any of the
Collateral or the security intended to be afforded by this Stock Pledge.
(3) It will, subject to the applicable terms of the Credit Agreement, pay
all taxes and assessments upon the Collateral or for its use or operation before
any interest or penalty for nonpayment attaches thereto unless said payment is
being contested in good faith and it establishes a reserve as required by
generally accepted accounting principles.
(4) It will, subject to the applicable terms of the Credit Agreement, sign
and execute alone or with Secured Party any financing statement or other
document or procure any documents and pay all reasonable connected costs,
necessary to protect the security interest under this Stock Pledge against the
rights or interests of third persons.
(5) It will reimburse Secured Party for all reasonable costs, including
reasonable attorneys' fees, incurred for any action taken by Secured Party to
remedy an Event of Default which Secured Party elects to remedy pursuant to its
rights under Article VI hereof.
(6) It will:
(i) allow Secured Party to examine, audit and inspect Company's
books, accounts, records (including without limitation all records
relating to the Collateral or the Indebtedness), ledgers and assets and
properties of every kind and description wherever
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located at all reasonable times during normal business hours, upon oral or
written request of Secured Party, and to make and take away copies of any
and all such books, accounts, records and ledgers. An examination of the
records or properties of the Company may require revealment of proprietary
and/or confidential data and information, and the provisions of Section
12.13 of the Credit Agreement are incorporated herein;
(ii) punctually and properly perform all of its covenants and duties
under any other security agreement, mortgage, collateral pledge agreement
or contract of any kind now or hereafter existing as security for or in
connection with payment of the Indebtedness, or any part thereof,
(iii) perform its obligations under the Loan Documents;
(iv) promptly furnish Secured Party with any information in writing
which Secured Party may reasonably request concerning the Collateral;
(v) promptly notify Secured Party of any material change in any fact
or circumstances warranted or represented by Company in this Stock Pledge
or in any other writing furnished by Company to Secured Party in
connection with the Collateral or the Indebtedness;
(vi) promptly notify Secured Party of any material claim, action or
proceeding affecting the Collateral and title therein, or in any part
thereof, or the security interest created herein, and, at the request of
the Secured Party, appear in and defend, at Company's expense, any such
action or proceeding; and
(vii) promptly, after being requested by Secured Party, pay to
Secured Party the amount of all reasonable expenses, including reasonable
attorneys' fees and other legal expenses, incurred by Secured Party in
protecting and maintaining the Collateral or its rights hereunder, or in
connection with any audit or inspection of the Collateral pursuant to the
terms hereof, and in enforcing the security interest created herein.
(7) With respect to any Collateral of a kind requiring an additional
security agreement, financing statement, or other writing to perfect a security
interest therein in favor of Secured Party, on behalf of Banks, Company will
forthwith execute and deliver to Secured Party on behalf of Banks, whatever the
Secured Party or the Majority Banks shall deem necessary or proper for such
purpose. Should any covenant, duty or agreement of Company fail to be performed
in accordance with its terms hereunder, Secured Party may, but shall never be
obligated to, perform or attempt to perform such covenant, duty or agreement on
behalf of Company, and any amount expended by Secured Party in such performance
or attempted performance shall become part of the Indebtedness, and, at the
request of Secured Party, Company agrees to pay such amount to Secured Party
upon demand at Secured Party's office in Detroit, Michigan together with
interest thereon at the highest rate which interest accrues on amounts after the
same become due pursuant to the terms of any note executed pursuant to the
Credit Agreement from the date of such expenditure by Secured Party until paid.
With respect to any Collateral in which Company acquires any rights subsequent
to the date hereof and which,
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under applicable law, a security interest is or can be perfected by possession,
Company agrees to deliver possession of such Collateral to Secured Party
immediately upon its acquisition of rights therein.
(8) Company will hold the proceeds of any of the Collateral in trust for
Secured Party on behalf of the Banks, will not commingle said proceeds with any
other funds, and, after an Event of Default, will deliver such proceeds to
Secured Party at its request.
(9) If Secured Party, acting in its sole discretion, redelivers any
Collateral to Company or Company's designee for the purpose of
(i) the ultimate sale or exchange thereof, or
(ii) presentation, collection, renewal, or registration of transfer
thereof,
such redelivery shall not constitute a release of Secured Party's security
interest therein or in the proceeds thereof unless Secured Party, with the
consent of the Majority Banks, specifically so agrees in writing.
(10) If Company requests any such redelivery, Company will deliver with
such request a duly executed financing statement in form and substance
satisfactory to Secured Party.
IV. Default.
The term "Event of Default," as used herein, means the occurrence of any
Event of Default under the Credit Agreement.
V. Consequence of Default.
Upon an Event of Default, Secured Party shall be entitled, subject to
applicable law, to all of its remedies specified herein, in the Credit
Agreement, or in any other document executed in connection with the Credit
Agreement or this Stock Pledge, or provided by law. Additionally, upon an Event
of Default and subject to applicable law, Secured Party will be entitled to
receive all dividends payable in respect of the pledged shares evidencing the
Collateral pledged under this Stock Pledge, and may change the registration of
any registerable Collateral to any other name or form and is hereby authorized
to appoint any officer or agent of Secured Party as Company's true and lawful
proxy and attorney-in-fact, with power, upon the occurrence of any Event of
Default (exercisable so long as such Event of Default is continuing), to
exercise all voting rights in respect of the shares evidencing the Collateral
pledged hereby; to endorse Company's name or any of its officers' names or
agents' names upon any notes, checks, drafts, money orders, or other instruments
of payment (including payments payable under any policy of insurance on the
Collateral) or Collateral that may come into possession of the Secured Party in
full or part payment of any amounts owing to the Banks; to give written notice
to such office and officials of the United States Post Office to effect such
change or changes of address so that all mail addressed to Company may be
delivered directly to Secured Party; to execute on behalf of Company any
financing statements, amendments, subordinations or other filings pursuant to
this Stock Pledge; granting unto Secured Party on behalf of the Banks, as the
proxy and attorney-in-
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fact of Company, full power to do any and all things necessary to be done in and
about the premises as fully and effectually as Company might or could do, and
hereby ratifying all that said proxy and attorney shall lawfully do or cause to
be done by virtue hereof. The proxy and power of attorney described herein shall
be deemed to be coupled with an interest and shall be irrevocable for the term
of the Credit Agreement, and all transactions thereunder and thereafter as long
as any Indebtedness or any of the commitments to lend remain outstanding. The
Secured Party shall have full power, subject to applicable law to collect,
compromise, endorse, sell or otherwise deal with the Collateral or proceeds
thereof on behalf of the Banks in its own name or in the name of Company
provided that Secured Party shall act in a commercially reasonable manner.
VI. Secured Party's Rights and Remedies.
Secured Party shall have available to it (subject to applicable law) the
following rights and remedies upon occurrence of an Event of Default:
A. Right to Assign. Secured Party may assign this Stock Pledge only as
provided in the Credit Agreement and if Secured Party does assign this Stock
Pledge, the assignee shall be entitled to the performance of all of Company's
obligations and agreements under this Stock Pledge, and the assignee shall be
entitled to all the rights and remedies of Secured Party under this Stock
Pledge.
B. Right to Discharge Company's Obligations. Secured Party may (i) with
the approval of the Majority Banks, discharge taxes, liens or security interests
or other encumbrances at any time levied or placed on the Collateral which are
superior to the security interest herein granted, (ii) remedy or cure any
default of Company under the terms of any lease, rental agreement, land contract
or other document which in any way pertains to or affects Company's title to or
interest in any of the Collateral, (iii) pay for insurance on the Collateral,
and (iv) pay for the maintenance and preservation of the Collateral, unless with
respect to the obligations under clauses (i) or (ii) Company is contesting in
good faith such obligations, and Company agrees to reimburse Secured Party, on
demand, for any payment made or any expense incurred by Secured Party pursuant
to the foregoing authorization, with interest, which payments and expenses shall
be secured by the security intended to be afforded by this Stock Pledge.
C. Remedies and Enforcement. Secured Party shall have and may exercise any
and all rights of enforcement and remedies afforded to a secured party under the
Uniform Commercial Code as adopted and in force in the State of Michigan, to the
extent permitted by applicable law, on the date of this Stock Pledge or the date
of Company's default together with any and all other rights and remedies
otherwise provided and available to Secured Party by law unless such application
would result in the invalidity or unenforceability of any provision hereof, in
which case the law of the state in which any of the Collateral is located shall
apply to the extent necessary to render such provision valid and enforceable;
and, in conjunction with, in addition to, or substitution for those rights, at
Secured Party's discretion, Secured Party may:
(1) Apply any of the Collateral against any of the Indebtedness
secured hereby;
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(2) Waive any default, or remedy any default in any reasonable
manner, without waiving its rights and remedies upon default and without
waiving any other prior or subsequent default;
(3) Without any notice to Company, notify any parties obligated on
any of the Collateral to make payment to the Secured Party of any amounts
due or to become due thereunder and enforce collection of any of the
Collateral by suit or otherwise and surrender, release or exchange all or
any part thereof, or compromise or extend or renew for any period (whether
or not longer than the original period) the indebtedness thereunder or
evidenced thereby. Upon request of the Secured Party, Company will, at its
own expense, notify any parties obligated to Company on any of the
Collateral to make payment to the Secured Party of any amounts due or to
become due thereunder. Company agrees that Secured Party shall not be
liable for any loss or damage which Company suffers or may suffer as a
result of Secured Party's processing of items or its exercise of any other
rights or remedies under this Stock Pledge, including without limitation
indirect, special or consequential damages, loss of revenues or profits,
or any claim, demand or action by any third party not related to or
affiliated with Company arising out of or in connection with the
processing of items (excluding only the claims of such third parties in
connection with the processing of items based solely upon the gross
negligence or willful misconduct of Secured Party) or the exercise of any
other rights or remedies hereunder. Company further agrees to indemnify
and hold Secured Party harmless from and against all such third party
claims, demands or actions, including without limitation litigation costs
and reasonable attorneys' fees.
D. Right of Sale.
(1) Company agrees that upon the occurrence of an Event of Default
(taking into account applicable periods of cure, if any), Secured Party
may, at its option, sell and dispose of the Collateral at public or
private sale without any previous demand of performance. Company agrees
that notice of such sale sent to Company's address, as set forth in the
Credit Agreement, by certified or registered mail sent at least five (5)
days prior to such sale, shall constitute reasonable notice of sale. The
foregoing shall not require notice if none is necessary under applicable
law. The proceeds of sale shall be applied in the following order:
(i) to all reasonable costs and charges incurred by Secured Party in
the taking and causing the removal and sale of said property, including
such reasonable attorneys' fees as shall have been incurred by Secured
Party;
(ii) to the Indebtedness, including all accrued interest thereon;
and
(iii) any surplus of such proceeds remaining shall be paid to the
Company, or to such other party who shall lawfully be entitled thereto.
(2) At any sale or sales made pursuant to this Stock Pledge or in a
suit to foreclose the same, the Collateral may be sold en masse or
separately, at the same or at
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different times, at the option of the Secured Party or its assigns. Such
sale may be public or private with notice as required by the Uniform
Commercial Code as then in effect in the state in which the Collateral is
located, and the Collateral need not be present at the time or place of
sale. At any such sale, the Secured Party or the holder of any note hereby
secured may bid for and purchase any of the property sold, notwithstanding
that such sale is conducted by the Secured Party or its attorneys, agents,
or assigns.
E. Miscellaneous. Secured Party shall have the right at all times to
enforce the provisions of this Stock Pledge on behalf of Banks in strict
accordance with the terms hereof, notwithstanding any conduct or custom on the
part of Secured Party in refraining from so doing at any time or times. The
failure of Secured Party at any time or times to enforce its rights under said
provisions strictly in accordance with the same shall not be construed as having
created a custom in any way or manner contrary to the specific provisions of
this Stock Pledge or as having in any way or manner modified the same. All
rights and remedies of Secured Party and Banks are cumulative and concurrent,
and the exercise of one right or remedy shall not be deemed a waiver or release
of any other right or remedy.
VII. Representations and Warranties of Company.
Company represents and warrants, as continuing representations and
warranties so long as the Guaranty remains in effect, that:
A. The individual signatory hereto has authority to execute and deliver
this Stock Pledge on behalf of Company.
B. No financing statement covering the Collateral, or any part thereof,
has been filed with any filing officer other than in favor of Secured Party.
C. No other agreement, pledge or assignment covering the Collateral, or
any part thereof, has been made and no security interest, other than the one
created hereby or pursuant to pledges and security agreements previously made in
favor of Secured Party on behalf of the Banks, has attached or been perfected in
the Collateral or in any part thereof.
D. No material dispute, right of setoff, counterclaim or defenses exist
with respect to any part of the Collateral.
E. All information supplied and statements made in any financial or credit
statements or application for credit prior to the execution of this Stock Pledge
are true and correct as of the date hereof in all material respects.
F. The Collateral, (1) in the case of each Subsidiary, constitutes all the
issued and outstanding capital stock (or other ownership interests) of each of
the Subsidiaries, (2) have been duly authorized and issued to Company, (3) is
fully paid and non-assessable, (4) is freely and validly assignable by Company,
and (5) is not subject to any option, warrant right to call or commitment of any
kind or nature.
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G. At the time Secured Party's security interest attaches to any of the
Collateral or its proceeds, Company will be the lawful owner with the right to
transfer any interest therein, and that Company will make such further
assurances as to prove its title to the Collateral as may be reasonably required
and will defend the Collateral and its proceeds against the lawful claims and
demands of all persons whomsoever. The delivery at any time by Company to
Secured Party of Collateral or financing statements covering Collateral shall
constitute a representation and warranty by Company under this Stock Pledge
that, with respect to such Collateral, and each item thereof, Company is owner
of the Collateral and the matters heretofore warranted in this paragraph are
true and correct.
VIII. Mutual Agreements.
Company and Secured Party mutually agree as follows:
A. "Company" and "Secured Party" as used in this Stock Pledge include the
successors and permitted assigns of those parties.
B. To the extent permitted by applicable law, except as otherwise provided
herein, the law governing this secured transaction shall be that of the State of
Michigan.
C. This Stock Pledge includes all amendments and supplements hereto and
assignments hereof and Company and Secured Party shall not be bound by any
amendment or undertaking not expressed in a writing executed by each of them.
D. All capitalized terms not specifically defined herein which are defined
in the Credit Agreement are used as defined in the Credit Agreement.
E. This Stock Pledge shall be a continuing security interest in every
respect (whether or not the outstanding balance of the Indebtedness is reduced
to zero) and Secured Party's security interest in the Collateral as granted
herein shall continue in full force and effect until all of the Indebtedness is
indefeasibly repaid and discharged in full and no commitment (whether optional
or obligatory) to extend any credit under the Credit Agreement remains
outstanding.
F. This Stock Pledge has been executed and delivered pursuant to the
Credit Agreement and in the event of any conflict between this Stock Pledge and
the Credit Agreement, the Credit Agreement shall govern.
G. WAIVER OF JURY TRIAL. THE BANKS, THE AGENT AND THE COMPANY 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 STOCK PLEDGE OR ANY
RELATED INSTRUMENT OR AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS
STOCK PLEDGE OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTION OF ANY OF THEM. NEITHER THE BANKS, THE AGENT, NOR COMPANY
SHALL SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE, ANY
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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 BANKS AND THE
AGENT OR COMPANY EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY ALL OF THEM.
IN WITNESS WHEREOF, Company and Secured Party have executed this Stock
Pledge on the day and year first above written.
COMPANY:
NORTH POINTE FINANCIAL SERVICES, INC.,
a Michigan corporation
By: /s/ B. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
B. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Its: Chief Operating Officer
ACCEPTED BY SECURED PARTY:
COMERICA BANK, as Agent for the Banks
By: /s/ ▇▇▇▇▇▇ ▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇
Its: Vice President
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SCHEDULE A
N.P. Premium Finance Company
Queensway International Indemnity Corporation