KINGSWAY FINANCIAL SERVICES INC. AND KINGSWAY U.S. FINANCE PARTNERSHIP As Borrowers AND KINGSWAY AMERICA INC., As a Guarantor AND The Lenders named herein as Lenders AND CANADIAN IMPERIAL BANK OF COMMERCE, As Administrative Agent AND LASALLE BANK...
EXECUTION COPY
Exhibit 10.2
THIS FIRST AMENDMENT TO THE SECOND AMENDED CREDIT AGREEMENT made as of the 11th day of March, 2004.
A M O N G:
KINGSWAY FINANCIAL SERVICES INC.
AND KINGSWAY U.S. FINANCE PARTNERSHIP
As Borrowers
AND
KINGSWAY AMERICA INC.,
As a Guarantor
AND
The Lenders named herein as Lenders
AND
CANADIAN IMPERIAL BANK OF COMMERCE,
As Administrative Agent
AND
LASALLE BANK NATIONAL ASSOCIATION,
As Syndication Agent
AND
THE BANK OF NOVA SCOTIA,
As Documentation Agent
WHEREAS:
1. Pursuant to a Second Amended Credit Agreement made as of the 5th day of March, 2004 among the parties hereto (the “Credit Agreement”), the Lenders and the Agents established certain credit facilities in favour of the Borrowers;
2. The Agents, the Lenders, Kingsway America and the Borrowers have agreed to amend certain terms and conditions of the Credit Agreement in the manner hereinafter set forth;
FOR VALUABLE CONSIDERATION, the parties agree as follows:
ARTICLE I
AMENDMENTS
1.01 Amendment to the Definition of Permitted Indebtedness. Section 1.01(92)(l) of the Credit Agreement is hereby deleted in its entirety and replaced with the following:
“Indebtedness of Kingsway America consisting of the issuance (“U.S. Unsecured Note Offering”) of US$125,000,000 of 7.50% unsecured senior notes due February 1, 2014 (“U.S. Unsecured Notes”) pursuant to an Indenture dated as of January 28, 2004 among Kingsway America, as issuer, the Canadian Borrower, as guarantor, and BNY Midwest Trust Company, as trustee, together with Indebtedness of the Canadian Borrower pursuant to an unsecured Guarantee of the Canadian Borrower in support of such U.S. Unsecured Notes, provided such Indebtedness of Kingsway America and the Canadian Borrower rank subordinate to or pari passu with, but not senior in any respect to, any of the Outstanding Obligations”.
ARTICLE II
CONDITIONS PRECEDENT TO THIS AGREEMENT
2.01 Conditions Precedent.
This First Amendment to the Second Amended Credit Agreement shall not come into effect and the Credit Agreement shall not be amended to reflect the amendments contemplated herein until the Administrative Agent shall have received to its satisfaction:
| (i) | this Agreement executed by all of the parties hereto; |
| (ii) | such other documentation as the Administrative Agent and the Lenders shall reasonably require to effect the amendments contemplated in this First Amendment to the Second Amended Credit Agreement. |
ARTICLE III
MISCELLANEOUS
3.01 Nature of Amendments and Defined Terms. It is acknowledged and agreed that the terms of this First Amendment to the Second Amended Credit Agreement are in addition to and, unless specifically provided for, shall not limit, restrict, modify, amend or release any of the understandings, agreements or covenants as set out in the Credit Agreement. The Credit Agreement shall henceforth be read and
- 2 -
construed in conjunction with this First Amendment to the Second Amended Credit Agreement and the Credit Agreement together with all of the powers, provisions, conditions, covenants and agreements contained or implied in the Credit Agreement shall be and shall continue to be in full force and effect. References to the “Credit Agreement” or the “Agreement” in the Credit Agreement or in any other document delivered in connection with, or pursuant to, the Credit Agreement, shall mean the Credit Agreement, as amended hereby. Capitalized terms utilized in this agreement but not defined in this Agreement shall have the meanings ascribed to such terms in the Credit Agreement.
3.02 Assignment. This First Amendment to the Second Amended Credit Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and assigns but shall not be assignable by the Borrowers or either of them without the prior written consent of the Agents and Lenders.
3.03 Severability. Any provision of this First Amendment to the Second Amended Credit Agreement which is prohibited or unenforceable in any jurisdiction shall not invalidate the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
3.04 Governing Law. This First Amendment to the Second Amended Credit Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and shall be treated in all respects as an Ontario contract and the parties hereby submit and attorn to the non-exclusive jurisdiction of the courts of the Province of Ontario.
3.05 Further Assurances. The Borrowers shall from time to time and at all times hereafter, upon every reasonable request from the Agents or the Lenders, make, do, execute and deliver or cause to be made, done, executed and delivered, all such further acts, deeds and assurances and things as may be necessary in the opinion of the Agents for more effectually implementing and carrying out the true intent and meaning of this First Amendment to the Second Amended Credit Agreement.
3.06 Counterparts. This First Amendment to the Second Amended Credit Agreement may be executed in any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one and the same agreement.
- 3 -
IN WITNESS WHEREOF the parties hereto have executed this First Amendment to the Second Amended Credit Agreement.
| KINGSWAY FINANCIAL SERVICES INC. | ||
| By: |
/s/ Xxxxxxx X. Star | |
| Name: Xxxxxxx X. Star | ||
| Title: President and CEO | ||
| By: |
/s/ W. Xxxxx Xxxxxxx | |
| Name: W. Xxxxx Xxxxxxx | ||
| Title: Executive Vice President and CFO | ||
| KINGSWAY U.S. FINANCE PARTNERSHIP | ||
| by its Partners | ||
| KINGSWAY FINANCIAL SERVICES INC. | ||
| By: |
/s/ Xxxxxxx X. Star | |
| Name: Xxxxxxx X. Star | ||
| Title: President and CEO | ||
| By: |
/s/ W. Xxxxx Xxxxxxx | |
| Name: W. Xxxxx Xxxxxxx | ||
| Title: Executive Vice President and CFO | ||
| METRO CLAIM SERVICES INC. | ||
| By: |
/s/ Xxxxxxx X. Star | |
| Name: Xxxxxxx X. Star | ||
| Title: President | ||
| By: |
/s/ W. Xxxxx Xxxxxxx | |
| Name: W. Xxxxx Xxxxxxx | ||
| Title: Secretary | ||
| KINGSWAY AMERICA INC. | ||
| By: |
/s/ Xxxxx X. Xxxxxxxxxx | |
| Name: Xxxxx X. Xxxxxxxxxx | ||
| Title: Vice President and CFO | ||
| By: |
/s/ Xxxxx Xxx Xxxx | |
| Name: Xxxxx Xxx Xxxx | ||
| Title: Assistant Secretary | ||
| CANADIAN IMPERIAL BANK OF COMMERCE, AS CANADIAN LENDER | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Executive Director | ||
- 4 -
| By: |
/s/ Marc St-Onge | |
| Name: Marc St. Onge | ||
| Title: Executive Director | ||
| LASALLE BUSINESS CREDIT, A DIVISION OF ABN AMRO N.V., CANADA BRANCH, AS CANADIAN LENDER | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: First Vice President | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Senior Vice President | ||
| THE BANK OF NOVA SCOTIA, AS CANADIAN LENDER | ||
| By: |
/s/ X.X. Xxxxxx | |
| Name: X.X. Xxxxxx | ||
| Title: Director, Financial Institutions Group | ||
| By: |
/s/ Xxxxxx XxxXxxx | |
| Name: Xxxxxx XxxXxxx | ||
| Title: Associate | ||
| CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, AS U.S. LENDER | ||
| By: |
/s/ Xxxxxxxxx Xxxx | |
| Name: Xxxxxxxxx Xxxx | ||
| Title: Executive Director CIBC World Markets Corp. As Agent | ||
| LASALLE BANK NATIONAL ASSOCIATION, AS U.S. LENDER | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Assistant Vice President | ||
| By: |
/s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | ||
| Title: Senior Vice President | ||
- 5 -
| THE BANK OF NOVA SCOTIA, ATLANTA AGENCY, AS U.S. LENDER | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | ||
| Title: Managing Director | ||
| CANADIAN IMPERIAL BANK OF COMMERCE, AS ADMINISTRATIVE AGENT | ||
| By: |
/s/ Xxxxxx Xxxx | |
| Name: Xxxxxx Xxxx | ||
| Title: Director | ||
| By: |
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | ||
| Title: Executive Director | ||
| LASALLE BANK NATIONAL ASSOCIATION, AS SYNDICATION AGENT | ||
| By: |
/s/ Xxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxxx | ||
| Title: Assistant Vice President | ||
| By: |
/s/ Xxxxx X. Xxxxxxx | |
| Name: Xxxxx X. Xxxxxxx | ||
| Title: Senior Vice President | ||
| THE BANK OF NOVA SCOTIA, AS DOCUMENTATION AGENT | ||
| By: |
/s/ X.X. Xxxxxx | |
| Name: X.X. Xxxxxx | ||
| Title: Director, Financial Institutions Group | ||
| By: |
/s/ Xxxxxx XxxXxxx | |
| Name: Xxxxxx XxxXxxx | ||
| Title: Associate | ||
- 6 -
