EXHIBIT 10.9
NINTH AMENDMENT TO CREDIT AGREEMENT
PERTAINING TO CREDIT FACILITY
ESTABLISHED
IN FAVOUR OF
KINGSWAY FINANCIAL SERVICES INC.
AND KINGSWAY U.S. FINANCE PARTNERSHIP
Exhibit 10.9
THIS NINTH AMENDMENT TO CREDIT AGREEMENT, dated as of May 27, 2003, is
among:
KINGSWAY FINANCIAL SERVICES INC.
AND KINGSWAY U.S. FINANCE PARTNERSHIP
As Borrowers
AND
The Lenders named herein as Lenders
AND
LASALLE BANK NATIONAL ASSOCIATION,
As Administrative Agent and Co-Syndications Agent
AND
CANADIAN IMPERIAL BANK OF COMMERCE,
As Co-Syndications Agent and Documentation Agent
WHEREAS:
1. Pursuant to a Credit Agreement made as of the 23rd day of February, 1999
among the parties hereto, as subsequently amended (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 INTERPRETATION
Additional Permitted Indebtedness. Section 1.01(84) of the Credit Agreement is
hereby amended by deleting the period found at the end of sub-section
1.01(84)(xvi) and replacing such period with a semi-colon, by adding the word
"and" immediately following the semi-colon and by adding the following as
sub-section 1.01(84)(xvii):
"(xvii) Indebtedness in connection with the Cdn $66,500,000 Amended Credit
Agreement dated as of May 27, 2003 (the "Amended Credit Agreement"), among
the Borrowers, HSBC Bank Canada, as lender, Canadian Imperial Bank of
Commerce, as lender and as Administrative Agent, LaSalle Bank National
Association, as lender and as Syndication Agent, Canadian
Imperial Bank of Commerce, New York Agency, and CIBC World Markets, as Sole
Lead Arranger and Bookrunner."
AMENDMENT TO COVENANTS
Amendment to No Guarantees Covenant. Sub-section 8.03(5) of the Credit Agreement
is hereby amended by: (A) deleting the word "and" at the end of sub-section
8.03(5)(viii), and all of sub-section (ix); and (B) inserting the following
immediately after sub-section 8.03(5)(viii):
"(ix) the Guarantee issued by Guarantor in connection with the Amended
Credit Agreement; and
(x) as otherwise permitted hereunder."
CONDITIONS PRECEDENT TO THIS AGREEMENT
Conditions Precedent. The amendments set forth in this Ninth Amendment to Credit
Agreement shall not become effective until (a) the execution and delivery of
this Ninth Amendment to Credit Agreement by the Borrowers and the Majority of
the Lenders and (b) the receipt by the Agent of the executed copy of the Amended
Credit Agreement, together with all schedules and exhibits, and all ancillary
documents contemplated by the Amended Credit Agreement.
MISCELLANEOUS
Nature of Amendments and Defined Terms. It is acknowledged and agreed that the
terms of this Ninth Amendment to 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 construed in
conjunction with this Ninth Amendment to 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.
Assignment. This Ninth Amendment to 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.
Severability. Any provision of this Ninth Amendment to 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.
Governing Law. This Ninth Amendment to 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.
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 Ninth Credit Amending Agreement.
Counterparts. This Ninth Amendment to 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.
IN WITNESS WHEREOF the parties hereto have executed this Ninth
Amendment to Credit Agreement.
KINGSWAY FINANCIAL SERVICES INC.
By: /s/ Xxxxxxx X. Star
----------------------------------------------------
Xxxxxxx X. Star
President & Chief Executive Officer
By: /s/ W. Xxxxx Xxxxxxx
----------------------------------------------------
W. Xxxxx Xxxxxxx
Executive Vice President & Chief Financial Officer
KINGSWAY U.S. FINANCE PARTNERSHIP
by its Partners
KINGSWAY FINANCIAL SERVICES INC.
By: /s/ W. Xxxxx Xxxxxxx
----------------------------------------------------
W. Xxxxx Xxxxxxx
Executive Vice President & Chief Financial Officer
METRO CLAIM SERVICES INC.
By: /s/ W. Xxxxx Xxxxxxx
----------------------------------------------------
W. Xxxxx Xxxxxxx
Executive Vice President & Chief Financial Officer
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Xxxxx Xxxxxx
Executive Director
By: /s/ Xxxxxx Xxxx
----------------------------------------------------
Xxxxxx Xxxx
Director
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxx
----------------------------------------------------
Xxxx Xxxxxxxx
Assistant Vice President
LASALLE BANK NATIONAL ASSOCIATION,
AS ADMINISTRATIVE AGENT
By: /s/ Xxxx Xxxxxxxx
----------------------------------------------------
Xxxx Xxxxxxxx
Assistant Vice President
CANADIAN IMPERIAL BANK OF COMMERCE,
AS DOCUMENTATION AGENT
By: /s/ Xxxxx Xxxxxx
----------------------------------------------------
Xxxxx Xxxxxx
Executive Director
By: /s/ Xxxxxx Xxxx
----------------------------------------------------
Xxxxxx Xxxx
Director
CANADIAN IMPERIAL BANK OF COMMERCE
NEW YORK AGENCY
By: /s/ Xxxxxxxxx Xxxx
----------------------------------------------------
Xxxxxxxxx Xxxx
Executive Director
THE BANK OF NOVA SCOTIA
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------------------
Xxxxxxx X. Xxxxxxx
Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION
By: ____________________________________________________
Name:
Title:
