EXHIBIT 10.6
THIS SIXTH CREDIT AMENDING AGREEMENT made as of the 13th day of
February, 2003.
A M O N G:
KINGSWAY FINANCIAL SERVICES INC.
AND KINGSWAY U.S. FINANCE PARTNERSHIP
As Borrowers
AND
The Lenders named herein as Lenders
AND
CANADIAN IMPERIAL BANK OF COMMERCE,
As Administrative Agent
AND
LASALLE BANK NATIONAL ASSOCIATION,
As Syndication Agent
WHEREAS:
1. Pursuant to a Credit Agreement made as of the 28th day of May,
2002 among the parties hereto as amended by a credit amending agreement dated
September 24th, 2002, a second credit amending agreement also dated September
24/th/, 2002, a third credit amending agreement dated as of October 30, 2002, a
fourth credit amending agreement dated December 4/th/, 2002 and a fifth credit
amending agreement dated as of January 1, 2003 (collectively the "Credit
Agreement"), the Lenders and the Agents established certain credit facilities in
favour of the Borrowers;
2. The Agents, the Lenders 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
AMENDMENT TO COVENANTS
1.01 Amendment to Capital Surplus Ratio Covenant. Sub-section 8.02(4) of the
Credit Agreement is hereby deleted in its entirety and replaced with the
following:
1
"Capital Surplus Ratio. The Canadian Borrower shall maintain at all times a
Capital Surplus Ratio on a Consolidated basis calculated quarterly on the
last day of each fiscal quarter of the Canadian Borrower on a rolling
four-quarter basis as follows:
(i) from the Closing Date to and including June 30, 2002 of not greater
than 2.75:1.00;
(ii) from July 1, 2002 to and including December 31, 2002 of not greater
than 3.50:1.00; and
(iii) thereafter of not greater than 3.25:1.00."
ARTICLE II
CONDITIONS PRECEDENT TO THIS AGREEMENT
2.01 Conditions Precedent.
This Sixth Credit Amending Agreement shall not come into effect and the Credit
Agreement shall not be amended to reflect the amendments contemplated therein
until execution and delivery of this Agreement by the parties hereto.
ARTICLE III
MISCELLANEOUS
3.01 Nature of Amendments and Defined Terms. It is acknowledged and agreed that
the terms of this Sixth Credit Amending 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 construed in
conjunction with this Sixth Credit Amending 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 Sixth Credit Amending 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 Sixth Credit Amending 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 Sixth Credit Amending 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 Sixth Credit Amending Agreement.
3.06 Counterparts. This Sixth Credit Amending 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.
IN WITNESS WHEREOF the parties hereto have executed this Sixth Credit
Amending Agreement.
KINGSWAY FINANCIAL SERVICES INC.
By: /s/ Xxxxxxx X. Star
------------------------------------
Name: Xxxxxxx X. Star
Title: President
By: /s/ W. Xxxxx Xxxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxxx
Title: Executive Vice President &
Chief Financial Officer
KINGSWAY U.S. FINANCE PARTNERSHIP
by its Partners
KINGSWAY FINANCIAL SERVICES INC.
By: /s/ W. Xxxxx Xxxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxxx
Title: Vice President & Secretary
By: /s/ W. Xxxxx Xxxxxxx
------------------------------------
Name: W. Xxxxx Xxxxxxx
Title: Secretary
CANADIAN IMPERIAL BANK OF COMMERCE,
AS CANADIAN LENDER
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title: Managing Director
HSBC BANK CANADA,
AS CANADIAN LENDER
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
Corporate & Institutional
Banking
By: ____________________________________
Name:
Title:
LASALLE BANK NATIONAL ASSOCIATION,
AS U.S. LENDER
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
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
By: ________________________________________
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE,
AS ADMINISTRATION AGENT
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxxx
----------------------------------------
Name: Xxxxx Xxxxxx
Title: Director
LASALLE BANK NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Senior Vice President
