Common use of Loan Syndication Clause in Contracts

Loan Syndication. (a) Except for each Lender’s right to assign its Revolving Loans or sell participations therein, Agent shall have the sole right to syndicate the Revolving Loans and the Commitments. Subject to the provisions of this Article 15, upon (x) the execution and delivery by a Lender to Agent of an Assignment and Assumption Agreement (“Lender Agreement”), in the form of Exhibit F attached hereto, and (y) so long as no Event of Default has occurred and is continuing, the consent of Borrower, such Lender shall be deemed to be a party hereto and shall have the rights and obligations of a Lender hereunder and under each of the other Loan Documents to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to the Lender and assumed by the Lender under the Lender Agreement. Such Lender to which an assignment is made hereunder shall be (i) any subsidiary or affiliate of any Lender; or (ii) a commercial bank or finance company organized or licensed under the laws of the United States of America or any state thereof having a combined capital and surplus of at least $500,000,000, or (iii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof having a combined capital and surplus of at least $500,000,000, or (iv) such other bank, insurance company, finance company or other financial institution approved by Agent, such approval not to be unreasonably withheld or delayed. In addition, to the extent said rights and obligations have been assigned by a Lender or Lenders to a Lender, the assigning Lenders shall relinquish said rights and be released from said obligations hereunder and under the other Loan Documents (the “Assigned Interest”); provided, however: (a) that the assigning Lenders shall be relieved of the Assigned Interest if, and only if, the Lender or Lenders shall be only such other Lender as shall be approved by Agent in writing prior to the execution of the applicable Lender Agreement such approval not to be unreasonably withheld, and (b) any sale or assignment of a Lender’s interest hereunder shall be in minimum amounts of $5,000,000 or the entire remaining balance of the Revolving Loans held by such Lender. The Agent’s and, if applicable, Borrower’s consent to any assignment hereunder shall not be unreasonably withheld or delayed. The Agent shall be entitled to an assignment fee of $3,500 payable by the Lender assigning its interest hereunder before any such assignment shall be effective. (b) The rights and benefits of a Lender hereunder shall inure to any Lender acquiring any interest in the Indebtedness or any part thereof. (c) Borrower acknowledges the foregoing and agrees that upon the delivery by any Lender of a Lender Agreement hereunder, as contemplated hereby, Borrower shall promptly execute new Revolving Notes: (a) reflecting the Assigned Interest and evidencing Borrower’s Indebtedness with respect to such new Lender’s Pro Rata Share of the Revolving Loans and Commitments; and (b) evidencing such Borrower’s Indebtedness with respect to the Pro Rata Share of the Revolving Loans and Commitments, if any, being retained by the Lender assigning its interest. In each case, such new Revolving Notes shall be payable to the Lenders in accordance with their Pro Rata Share as in effect after the consummation of the assignment contemplated hereby. Additionally, Borrower agrees to cooperate and assist Agent in connection with any assignment or syndication efforts hereunder. (d) Additionally, upon the delivery of the Lender Agreement and issuance of the new Revolving Notes, Exhibit A to this Agreement shall be deemed amended to reflect the Pro Rata Share of each Lender’s share of the Revolving Loans and Commitments. Agent may deem and treat the payee of any note as the holder thereof for all purposes hereof, unless and until the assignment thereof pursuant to an agreement (if and to the extent permitted herein) in form and substance satisfactory to the Agent shall have been delivered to and acknowledged by Agent. (e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Revolving Loans owing to it and its participation in the Letters of Credit); provided, that, (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) and the other Loan Documents shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, and Borrower, the other Lenders, Agent, and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents, and (iii) the participant shall not have any rights under this Agreement or any of the other Loan Documents (without limiting the participant’s rights against such Lender in favor of the participant relating thereto) and all amounts payable by any Borrower or Loan Party hereunder shall be determined as if such Lender had not sold such participation. (f) Nothing in this Agreement shall prevent any Lender from pledging its Revolving Loans hereunder to a Federal Reserve Bank in support of borrowings made by such Lender from such Federal Reserve Bank. (g) Any Lender which is not a bank organized under the United States or any state thereof will provide to Borrower on or before the date of this Agreement, and thereafter on or before each date that such form is no longer effective, two copies of U.S. Internal Revenue Service Form W8-ECI or W8-BEN, or any subsequent version thereof, as the case may be, properly completed and duly executed certifying in each case that such Non-U.S. Lender is entitled to receive payments under this Agreement and each other Loan Document, without deduction or withholding of any United States federal income taxes. Each Non-U.S. Lender that so delivers copies of Form W-8BEN or W-8ECI or any successor applicable form, as the case may be, pursuant to the preceding sentence further undertakes to deliver to each of the Borrower and the Agent two further copies of Form W-8BEN or W-8ECI or such successor applicable form, or other manner of certification, as the case may be, on or before that date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it, and such extensions or renewals thereto as may reasonably be requested by the Agent, certifying in the case of a Form W-8BEN or W-8ECI or such successor applicable form that such Non-U.S. Lender is entitled to receive payments under this Agreement and each other Loan Document without deduction or withholding of any United States federal income taxes, unless in any such case an event not within the control of such Lender (or its affiliates) (including without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it and such Non-U.S. Lender advises the Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or reasonably requested by Borrower or the Agent, such properly completed and duly executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate; provided that such Lender is legally entitled to complete, execute and deliver such documentation and in such Lender’s reasonable judgment such completion, execution or submission would not materially prejudice the legal position of such Lender.

Loan Syndication. (a) Except for each Lender’s right to assign its Revolving Loans or sell participations therein, Agent shall have With the sole right to syndicate the Revolving Loans and the Commitments. Subject to the provisions of this Article 15, upon (x) the execution and delivery by a Lender to Agent of an Assignment and Assumption Agreement (“Lender Agreement”), in the form of Exhibit F attached hereto, and (y) so long as no Event of Default has occurred and is continuing, the prior written consent of Borrowerthe Borrowers, such Lender shall be deemed to be a party hereto and shall have the rights and obligations of a Lender hereunder and under each of the other Loan Documents to the extent that rights and obligations hereunder and under the other Loan Documents have been assigned to the Lender and assumed by the Lender under the Lender Agreement. Such Lender to which an assignment is made hereunder shall be (i) any subsidiary or affiliate of any Lender; or (ii) a commercial bank or finance company organized or licensed under the laws of the United States of America or any state thereof having a combined capital and surplus of at least $500,000,000, or (iii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof having a combined capital and surplus of at least $500,000,000, or (iv) such other bank, insurance company, finance company or other financial institution approved by Agent, such approval not to be unreasonably withheld or delayed. In addition, to the extent said rights and obligations have been assigned by a Lender or Lenders to a Lender, the assigning Lenders shall relinquish said rights and be released from said obligations hereunder and under the other Loan Documents (the “Assigned Interest”); provided, however: (a) that the assigning Lenders shall be relieved of the Assigned Interest if, and only if, the Lender or Lenders shall be only such other Lender as shall be approved by Agent in writing prior to the execution of the applicable Lender Agreement such approval not to be unreasonably withheld, and (b) any sale each Lender shall have the right to sell, assign, transfer or assignment grant a participation in its Commitment, in an amount of a Lender’s interest hereunder shall be in minimum amounts of not less than Cdn $5,000,000 or or, if less, the entire remaining balance full amount of the Revolving Loans held by such Lender's Commitment in whole or in part, to one or more Persons (the "Participants"). The Agent’s andAfter the occurrence of an Event of Default, if as applicable, Borrower’s consent to any assignment hereunder shall not be unreasonably withheld or delayed. The Agent Lender shall be entitled to an assignment fee of $3,500 payable by the Lender assigning its interest hereunder before undertake any such assignment shall be effective. (b) The rights and benefits sale, assignment, transfer or grant of a participation without notice to, or the consent of, either Borrower or Kingsway America. Notwithstanding the foregoing, any Lender hereunder shall inure may sell, assign, transfer or grant a participation in its Commitment to any other Lender acquiring any interest in the Indebtedness or any part thereof. (c) Borrower acknowledges the foregoing and agrees that upon the delivery by to an Affiliate of any Lender and without the consent of the Borrowers. For the purpose of selling, assigning, transferring or granting a participation in its Commitment, a Lender Agreement hereundermay disclose, as contemplated herebyon a confidential basis, Borrower shall promptly execute new Revolving Notes: (a) reflecting to a potential Participant such information concerning the Assigned Interest and evidencing Borrower’s Indebtedness with respect to such new Lender’s Pro Rata Share of the Revolving Loans and Commitments; and (b) evidencing such Borrower’s Indebtedness with respect to the Pro Rata Share of the Revolving Loans and CommitmentsBorrowers, if any, being retained by the Lender assigning its interest. In each case, such new Revolving Notes shall be payable to the Lenders in accordance with their Pro Rata Share as in effect after the consummation of the assignment contemplated hereby. Additionally, Borrower agrees to cooperate and assist Agent in connection with any assignment or syndication efforts hereunder. (d) Additionally, upon the delivery of the Lender Agreement and issuance of the new Revolving Notes, Exhibit A to this Agreement shall be deemed amended to reflect the Pro Rata Share of each Lender’s share of the Revolving Loans and Commitments. Agent may deem and treat the payee of any note as the holder thereof for all purposes hereof, unless and until the assignment thereof pursuant to an agreement (if and to the extent permitted herein) in form and substance satisfactory to the Agent shall have been delivered to and acknowledged by Agent. (e) Each Lender may sell participations to one or more banks or other entities in or to all or a portion of its rights and obligations under this Agreement Kingsway America and the other Loan Documents (including, without limitation, all or a portion of its Commitments and the Revolving Loans owing to it and its participation in the Letters of Credit); provided, that, (i) such Lender’s obligations under this Agreement (including, without limitation, its Commitment hereunder) and the other Loan Documents shall remain unchanged, (ii) Subsidiaries as such Lender shall remain solely responsible considers appropriate, including information subject to the other parties hereto for the performance any duty of such obligations, and Borrower, the other Lenders, Agent, and the L/C Issuer shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and the other Loan Documents, and (iii) the participant shall not have any rights under this Agreement or any of the other Loan Documents (without limiting the participant’s rights against such Lender in favor of the participant relating thereto) and all amounts payable by any Borrower or Loan Party hereunder shall be determined as if such Lender had not sold such participation. (f) Nothing in this Agreement shall prevent any Lender from pledging its Revolving Loans hereunder to a Federal Reserve Bank in support of borrowings made confidentiality by such Lender from such Federal Reserve Bank. (g) Any Lender which is not a bank organized under to the United States Borrowers, Kingsway America or any state thereof will provide Subsidiary. The Borrowers agree to Borrower on or before the date of this Agreement, execute and thereafter on or before each date that such form is no longer effective, two copies of U.S. Internal Revenue Service Form W8-ECI or W8-BEN, or any subsequent version thereof, as the case may be, properly completed deliver and duly executed certifying in each case that such Non-U.S. Lender is entitled to receive payments under this Agreement and each other Loan Document, without deduction or withholding of any United States federal income taxes. Each Non-U.S. Lender that so delivers copies of Form W-8BEN or W-8ECI or any successor applicable form, as the case may be, pursuant cause Kingsway America to the preceding sentence further undertakes to deliver to each of the Borrower and the Agent two further copies of Form W-8BEN or W-8ECI or such successor applicable form, or other manner of certification, as the case may be, on or before that date that any such form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by it, and such extensions or renewals thereto as may reasonably be requested by the Agent, certifying in the case of a Form W-8BEN or W-8ECI or such successor applicable form that such Non-U.S. Lender is entitled to receive payments under this Agreement and each other Loan Document without deduction or withholding of any United States federal income taxes, unless in any such case an event not within the control of such Lender (or its affiliates) (including without limitation, any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent such Non-U.S. Lender from duly completing and delivering any such form with respect to it and such Non-U.S. Lender advises the Agent that it is not capable of receiving payments without any deduction or withholding of United States federal income tax. A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Borrower is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or reasonably requested by Borrower or the Agent, such properly completed and duly executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate; provided that such Lender is legally entitled to complete, execute and deliver such further documentation and take such further action as the Administrative Agent or any Lender considers necessary or advisable to give effect to such sale, assignment, transfer or grant of participation. In the case of sale, assignment, transfer or granting of a participation, and upon payment by the Participant to the Administrative Agent of an administrative fee in such Lender’s reasonable judgment such completionthe amount of U.S. $2,500, execution or submission would for the Administrative Agent's own account and not materially prejudice for the legal position account of the Lenders, the Participant shall have, to the extent of such sale, assignment, transfer or grant of participation, the same rights and obligations as it would have if it were a Lender on the Closing Date and as such had executed this Agreement as required, and from the date of delivery of the notice of participation and undertaking described in Section 10.19, the Participant shall be a Lender hereunder. The selling, assigning, transferring or granting Lender (the "Outgoing Lender") shall be relieved, to the extent of the sale, assignment, transfer or grant of participation, of its obligations hereunder with respect to its Commitment. The Borrowers hereby acknowledge and agree that any sale, assignment, transfer or granting of a participation will give rise to a direct obligation of the Borrowers to the Participant. Notwithstanding the foregoing, it is understood and agreed by each Borrower that the rights of any Outgoing Lender with respect to a Borrowing shall be transferred to the applicable Participant pursuant to the terms of this Section 10.18 and such Borrowing continues to be outstanding at all times without novation.