Sharing Event. (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Eurocurrency Loans denominated in an Alternate Currency shall be automatically converted into Loans denominated in Dollars (in an amount equal to the Dollar Equivalent, as determined by the Administrative Agent in accordance with this Agreement, of the aggregate principal amount of such Eurocurrency Loans on the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter be deemed to be ABR Loans and (ii) shall be immediately due and payable on the date such Sharing Event occurred) and (y) all accrued and unpaid interest and other amounts owing with respect to such Eurocurrency Loans shall be immediately due and payable in Dollars, in an amount equal to the Dollar Equivalent of such accrued and unpaid interest and other amounts. (b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic conversion pursuant to Section 10.22(a), each Lender shall (and hereby unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all Loans (other than Competitive Rate Loans) outstanding to, and any unpaid amounts the Issuing Lender has disbursed under a Letter of Credit owing by, any Borrower in amounts such that each Lender shall have a share of the outstanding Loans (other than Competitive Loans) and unpaid amounts the Issuing Lender has disbursed under a Letter of Credit then owing by any Borrower equal to its Applicable Percentage of the Revolving Commitments (although if because of fluctuations in currency exchange rates any Lender would be required to purchase such participations after giving effect to which such Lender’s Loans and Letter of Credit participations (including participations therein purchased pursuant to this Section) would exceed such Lender’s Revolving Commitment, then such participations shall be in an amount after giving effect to which such Lender’s Loans and Letter of Credit participations (including participations therein purchased pursuant to this Section) would equal such Lender’s Revolving Commitment). Upon any such occurrence, the Administrative Agent shall notify each Lender and shall specify the amount of Dollars required from such Lender in order to effect the purchases and sales by the various Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the last Interest Payment Date through the date of the Sharing Event); provided that, in the event that a Sharing Event shall have occurred, each Lender shall be deemed to have purchased, automatically and without request, such participating interests. Promptly upon receipt of such request, each Lender shall deliver to the Administrative Agent (in immediately available funds in Dollars) the net amounts as specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various Lenders in such amounts as are needed to effect the purchases and sales of participations as provided above. Promptly following receipt thereof, each Lender which has sold participations in any of its Loans and Letter of Credit participations (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participating interest a participation certificate dated the date of receipt of such funds and in such amount. It is understood that the amount of funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above. (c) Upon the occurrence of a Sharing Event, (i) no further Loans shall be made, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, any outstanding Eurocurrency Loans denominated in any Alternate Currency (including any interest and other amounts which were accrued but unpaid on the date of such purchase) shall be converted to Loans denominated in Dollars in accordance with Section 10.22(a) and be payable immediately in Dollars as if such Eurocurrency Loans had originally been made in Dollars and shall be distributed by the relevant Lenders (or their affiliates) to the Administrative Agent for the account of the Lenders which made such Loans or are participating therein and (iii) the Revolving Commitments of the Lenders shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interest in any Loans upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date. (d) If any amount required to be paid by any Lender pursuant to Section 10.22(b) is not paid to the Administrative Agent within one (1) Business Day following the date upon which such Lender receives notice from the Administrative Agent of the amount of its participations required to be purchased pursuant to said Section, such Lender shall also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations times (ii) the daily average Federal Funds Effective Rate during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent times (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 10.22(b) is not in fact made available to the Administrative Agent within three (3) Business Days following the date upon which such Lender receives notice from the Administrative Agent as to the amount of participations required to be purchased by it, the Administrative Agent shall be entitled to recover from such Lender on demand, such amount with interest thereon calculated from such request date at the rate per annum applicable to ABR Loans hereunder. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable by any Lender pursuant to this Section shall be deemed conclusive absent manifest error. Amounts payable under this Section shall be paid to the Administrative Agent for the account of the relevant Lenders; provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such Lender the amounts owing to such Lenders, then the amounts shall be paid to the Administrative Agent for its own account. (e) Whenever, at any time after the relevant Lenders have received from any Lenders purchases of participations in any Loans pursuant to this Section, the Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received; provided, that in the event that such payment received by any Lenders are required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders. (f) Each Lender’s obligation to purchase participating interests pursuant to this Section shall be absolute and unconditional and shall not be affected by any circumstances including (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of Kimco or any other Person, (iv) any breach of this Agreement by Kimco, any of its Subsidiaries or any Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing. (g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, each Lender which has purchased such participations shall be entitled to receive from the applicable Borrower any increased costs and indemnities directly from the applicable Borrower to the same extent as if it were the direct Lender as opposed to a participant therein. Each Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this Section, increased taxes may be owing by such Borrower pursuant to Section 2.12, which taxes shall be paid (to the extent provided in Section 2.12) by such Borrower, without any claim that the increased taxes are not payable because same resulted from the participations effected as otherwise required by this Section.
Appears in 4 contracts
Samples: Credit Agreement (Kimco Realty Corp), Credit Agreement (Kimco Realty Corp), Credit Agreement (Kimco Realty Corp)
Sharing Event. (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Eurocurrency Loans denominated in an Alternate Currency shall be automatically converted into Loans denominated in Dollars (in an amount equal to the Dollar Equivalent, as determined by the Administrative Agent in accordance with this Agreement, of the aggregate principal amount of such Eurocurrency Loans on the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter be deemed to be ABR Loans and (ii) shall be immediately due and payable on the date such Sharing Event occurred) and (y) all accrued and unpaid interest and other amounts owing with respect to such Eurocurrency Loans shall be immediately due and payable in Dollars, in an amount equal to the Dollar Equivalent of such accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic conversion pursuant to Section 10.22(a), each Lender shall (and hereby unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all Loans (other than Competitive Rate Loans) outstanding to, and any unpaid amounts the Issuing Lender has disbursed under a Letter of Credit owing by, any Borrower in amounts such that each Lender shall have a share of the outstanding Loans (other than Competitive Loans) and unpaid amounts the Issuing Lender has disbursed under a Letter of Credit then owing by any Borrower equal to its Applicable Percentage of the Revolving Commitments (although if because of fluctuations in currency exchange rates any Lender would be required to purchase such participations after giving effect to which such Lender’s 's Loans and Letter of Credit participations (including participations therein purchased pursuant to this Section) would exceed such Lender’s 's Revolving Commitment, then such participations shall be in an amount after giving effect to which such Lender’s 's Loans and Letter of Credit participations (including participations therein purchased pursuant to this Section) would equal such Lender’s 's Revolving Commitment). Upon any such occurrence, the Administrative Agent shall notify each Lender and shall specify the amount of Dollars required from such Lender in order to effect the purchases and sales by the various Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the last Interest Payment Date interest payment date through the date of the Sharing Event); provided thatprovided, in the event that a Sharing Event shall have occurred, each Lender shall be deemed to have purchased, automatically and without request, such participating interests. Promptly upon receipt of such request, each Lender shall deliver to the Administrative Agent (in immediately available funds in Dollars) the net amounts as specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various Lenders in such amounts as are needed to effect the purchases and sales of participations as provided above. Promptly following receipt thereof, each Lender which has sold participations in any of its Loans and Letter of Credit participations (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participating interest a participation certificate dated the date of receipt of such funds and in such amount. It is understood that the amount of funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event, Event (i) no further Loans shall be made, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, any outstanding Eurocurrency Loans denominated in any Alternate Currency (including any interest and other amounts which were accrued but unpaid on the date of such purchase) shall be converted to Loans denominated in Dollars in accordance with Section 10.22(a) and be payable immediately in Dollars as if such Eurocurrency Loans had originally been made in Dollars and shall be distributed by the relevant Lenders (or their affiliates) to the Administrative Agent for the account of the Lenders which made such Loans or are participating therein and (iii) the Revolving Commitments of the Lenders shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interest in any Loans upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(d) If any amount required to be paid by any Lender pursuant to Section 10.22(b) is not paid to the Administrative Agent within one (1) Business Day following the date upon which such Lender receives notice from the Administrative Agent of the amount of its participations required to be purchased pursuant to said Section, such Lender shall also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations times (ii) the daily average Federal Funds Effective Rate during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent times (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 10.22(b) is not in fact made available to the Administrative Agent within three (3) Business Days following the date upon which such Lender receives notice from the Administrative Agent as to the amount of participations required to be purchased by it, the Administrative Agent shall be entitled to recover from such Lender on demand, such amount with interest thereon calculated from such request date at the rate per annum applicable to ABR Loans hereunder. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable by any Lender pursuant to this Section shall be deemed conclusive absent manifest error. Amounts payable under this Section shall be paid to the Administrative Agent for the account of the relevant Lenders; provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such Lender the amounts owing to such Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received from any Lenders purchases of participations in any Loans pursuant to this Section, the Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ ' participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received; provided, that in the event that such payment received by any Lenders are required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(f) Each Lender’s 's obligation to purchase participating interests pursuant to this Section shall be absolute and unconditional and shall not be affected by any circumstances including (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of Kimco or any other Person, (iv) any breach of this Agreement by Kimco, any of its Subsidiaries or any Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, each Lender which has purchased such participations shall be entitled to receive from the applicable Borrower any increased costs and indemnities directly from the applicable Borrower to the same extent as if it were the direct Lender as opposed to a participant therein. Each Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this Section, increased taxes may be owing by such the Borrower pursuant to Section 2.12, which taxes shall be paid (to the extent provided in Section 2.12) by such the applicable Borrower, without any claim that the increased taxes are not payable because same resulted from the participations effected as otherwise required by this Section.
Appears in 1 contract
Samples: Credit Agreement (Kimco Realty Corp)
Sharing Event. (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Eurocurrency Rate Loans denominated in an Alternate Optional Currency shall be automatically converted into Loans denominated in Dollars (in an amount equal to the Dollar Equivalent, as determined by the Administrative Agent in accordance with this Agreementon the date of such conversion, of the aggregate principal amount of the such Eurocurrency Rate Loans on the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter be deemed to be ABR Base Rate Loans and (ii) unless the Sharing Event resulted solely from a termination of the Revolving Credit Commitments, shall be immediately due and payable on the date such Sharing Event has occurred) and (y) unless the Sharing Event resulted solely from a termination of the Revolving Credit Commitments, all accrued and unpaid interest and other amounts owing with respect to such Eurocurrency Rate Loans shall be immediately due and payable in Dollars, in an amount equal to the Dollar Equivalent of such accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic conversion pursuant to Section 10.22(aSECTION 2.8(a), each Lender shall (and hereby unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all Loans (other than Competitive Rate Loans) outstanding to, and any unpaid amounts the Issuing Lender has disbursed under a Letter of Credit owing by, any the Borrower in amounts such that each Lender shall have a share of the outstanding Loans (other than Competitive Loans) and unpaid amounts the Issuing Lender has disbursed under a Letter of Credit then owing by any the Borrower equal to its Applicable Percentage Pro Rata Share of the Revolving Credit Commitments (although if because of fluctuations in currency exchange rates any Lender would be required to purchase such participations after giving effect to which such Lender’s 's Loans and Letter of Credit participations under SECTION 2.4(d) (including participations therein purchased pursuant to this SectionSECTION 2.8) would exceed such Lender’s 's Revolving Credit Commitment, then such participations shall be in an amount after giving effect to which such Lender’s 's Loans and Letter of Credit participations under SECTION 2.4(d) (including participations therein purchased pursuant to this SectionSECTION 2.8) would equal such Lender’s 's Revolving Credit Commitment). Upon any such occurrence, the Administrative Agent shall notify each Lender and shall specify the amount of Dollars required from such Lender in order to effect the purchases and sales by the various Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the last Interest Payment Date interest payment date through the date of the Sharing EventEvent plus any additional amounts payable by the Borrowers pursuant to SECTION 12.1 in respect of such accrued but unpaid interest); provided thatPROVIDED, in the event that a Sharing Event shall have occurred, each Lender shall be deemed to have purchased, automatically and without request, such participating interests. Promptly upon receipt of such request, each Lender shall deliver to the Administrative Agent (in immediately available funds in Dollars) the net amounts as specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various Lenders in such amounts as are needed to effect the purchases and sales of participations as provided above. Promptly following receipt thereof, each Lender which has sold participations in any of its Loans and Letter of Credit participations under SECTION 2.4(d) (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participating interest a participation certificate dated the date of receipt of such funds and in such amount. It is understood that the amount of funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event, Event (i) no further Loans shall be made, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, any outstanding Eurocurrency Rate Loans denominated in any Alternate Optional Currency (including including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such purchase) shall be converted to Loans denominated in Dollars in accordance with Section 10.22(aSECTION 2.8(a) and be payable immediately in Dollars as if such Eurocurrency Rate Loans had originally been made in Dollars and shall be distributed by the relevant Lenders (or their affiliates) to the Administrative Agent for the account of the Lenders which made such Loans or are participating therein and (iii) the Revolving Credit Commitments of the Lenders shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interest in any Loans upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(d) If any amount required to be paid by any Lender pursuant to Section 10.22(bSECTION 2.8(b) is not paid to the Administrative Agent within one (1) Business Day following the date upon which such Lender receives notice from the Administrative Agent of the amount of its participations required to be purchased pursuant to said SectionSECTION 2.8(b), such Lender shall also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations times TIMES (ii) the daily average Federal Funds Effective Rate during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent times TIMES (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 10.22(bSECTION 2.8(b) is not in fact made available to the Administrative Agent within three (3) Business Days following the date upon which such Lender receives notice from the Administrative Agent as to the amount of participations required to be purchased by it, the Administrative Agent shall be entitled to recover from such Lender on demand, such amount with interest thereon calculated from such request date at the rate per annum applicable to ABR Base Rate Loans hereunder. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable by any Lender pursuant to this Section SECTION 2.8 shall be deemed conclusive absent manifest error. Amounts payable under this Section SECTION 2.8 shall be paid to the Administrative Agent for the account of the relevant Lenders; provided PROVIDED that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such Lender the amounts owing to such Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received from any Lenders purchases of participations in any Loans pursuant to this SectionSECTION 2.8, the Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ ' participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received; providedPROVIDED, HOWEVER, that in the event that such payment received by any Lenders are required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(f) Each Lender’s 's obligation to purchase participating interests pursuant to this Section SECTION 2.8 shall be absolute and unconditional and shall not be affected by any circumstances including circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Potential Event of Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of Kimco the Borrower or any other Person, (iv) any breach of this Agreement by Kimcothe Borrower, TMC, any of its Subsidiaries or any Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, each Lender which has purchased such participations shall be entitled to receive from the applicable Borrower any increased costs and indemnities directly from the applicable Borrower to the same extent as if it were the direct Lender as opposed to a participant therein. Each The Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this SectionSECTION 2.8, increased taxes Taxes may be owing by such the Borrower pursuant to Section 2.12SECTION 12.1, which taxes Taxes shall be paid (to the extent provided in Section 2.12SECTION 12.1) by such the Borrower, without any claim that the increased taxes Taxes are not payable because same resulted from the participations effected as otherwise required by this SectionSECTION 2.8.
Appears in 1 contract
Sharing Event. (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Eurocurrency Loans denominated in an Alternate Currency shall be automatically converted into Loans denominated in Dollars (in an amount equal to the Dollar Equivalent, as determined by the Administrative Agent in accordance with this Agreement, of the aggregate principal amount of such Eurocurrency Loans on the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter be deemed to be ABR Loans and (ii) shall be immediately due and payable on the date such Sharing Event occurred) and (y) all accrued and unpaid interest and other amounts owing with respect to such Eurocurrency Loans shall be immediately due and payable in Dollars, in an amount equal to the Dollar Equivalent of such accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic conversion pursuant to Section 10.22(a), each Lender shall (and hereby unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all Loans (other than Competitive Rate Loans) outstanding to, and any unpaid amounts the Issuing Lender has disbursed under a Letter of Credit owing by, any Borrower in amounts such that each Lender shall have a share of the outstanding Loans (other than Competitive Loans) and unpaid amounts the Issuing Lender has disbursed under a Letter of Credit then owing by any Borrower equal to its Applicable Percentage of the Revolving Commitments (although if because of fluctuations in currency exchange rates any Lender would be required to purchase such participations after giving effect to which such Lender’s Loans and Letter of Credit participations (including participations therein purchased pursuant to this Section) would exceed such Lender’s Revolving Commitment, then such participations shall be in an amount after giving effect to which such Lender’s Loans and Letter of Credit participations (including participations therein purchased pursuant to this Section) would equal such Lender’s Revolving Commitment). Upon any such occurrence, the Administrative Agent shall notify each Lender and shall specify the amount of Dollars required from such Lender in order to effect the purchases and sales by the various Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the last Interest Payment Date through the date of the Sharing Event); provided that, in the event that a Sharing Event shall have occurred, each Lender shall be deemed to have purchased, automatically and without request, such participating interests. Promptly upon receipt of such request, each Lender shall deliver to the Administrative Agent (in immediately available funds in Dollars) the net amounts as specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various Lenders in such amounts as are needed to effect the purchases and sales of participations as provided above. Promptly following receipt thereof, each Lender which has sold participations in any of its Loans and Letter of Credit participations (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participating interest a participation certificate dated the date of receipt of such funds and in such amount. It is understood that the amount of funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event, (i) no further Loans shall be made, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, any outstanding Eurocurrency Loans denominated in any Alternate Currency (including any interest and other amounts which were accrued but unpaid on the date of such purchase) shall be converted to Loans denominated in Dollars in accordance with Section 10.22(a) and be payable immediately in Dollars as if such Eurocurrency Loans had originally been made in Dollars and shall be distributed by the relevant Lenders (or their affiliates) to the Administrative Agent for the account of the Lenders which made such Loans or are participating therein and (iii) the Revolving Commitments of the Lenders shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interest in any Loans upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(d) If any amount required to be paid by any Lender pursuant to Section 10.22(b) is not paid to the Administrative Agent within one (1) Business Day following the date upon which such Lender receives notice from the Administrative Agent of the amount of its participations required to be purchased pursuant to said Section, such Lender shall also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations times (ii) the daily average Federal Funds Effective Rate during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent times (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 10.22(b) is not in fact made available to the Administrative Agent within three (3) Business Days following the date upon which such Lender receives notice from the Administrative Agent as to the amount of participations required to be purchased by it, the Administrative Agent shall be entitled to recover from such Lender on demand, such amount with interest thereon calculated from such request date at the rate per annum applicable to ABR Loans hereunder. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable by any Lender pursuant to this Section shall be deemed conclusive absent manifest error. Amounts payable under this Section shall be paid to the Administrative Agent for the account of the relevant Lenders; provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such Lender the amounts owing to such Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received from any Lenders purchases of participations in any Loans pursuant to this Section, the Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received; provided, that in the event that such payment received by any Lenders are required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(f) Each Lender’s obligation to purchase participating interests pursuant to this Section shall be absolute and unconditional and shall not be affected by any circumstances including (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of Kimco or any other Person, (iv) any breach of this Agreement by Kimco, any of its Subsidiaries or any Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, each Lender which has purchased such participations shall be entitled to receive from the applicable Borrower any increased costs and indemnities directly from the applicable Borrower to the same extent as if it were the direct Lender as opposed to a participant therein. Each Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this Section, increased taxes may be owing by such Borrower pursuant to Section 2.12, which taxes shall be paid (to the extent provided in Section 2.12) by such Borrower, without any claim that the increased taxes are not payable because same resulted from the participations effected as otherwise required by this Section.three
Appears in 1 contract
Samples: Credit Agreement (Kimco Realty Corp)
Sharing Event. (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Eurocurrency Rate Loans denominated in an Alternate Optional Currency (other than Negotiated Rate Loans) shall be automatically converted into Loans denominated in Dollars (in an amount equal to the Dollar Equivalent, as determined by the Administrative Agent in accordance with this Agreementon the date of such conversion, of the aggregate principal amount of the such Eurocurrency Rate Loans on the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter be deemed to be ABR Base Rate Loans and (ii) unless the Sharing Event resulted solely from a termination of the Revolving Credit Commitments, shall be immediately due and payable on the date such Sharing Event has occurred) and (y) unless the Sharing Event resulted solely from a termination of the Revolving Credit Commitments, all accrued and unpaid interest and other amounts owing with respect to such Eurocurrency Rate Loans shall be immediately due and payable in Dollars, in an amount equal to the Dollar Equivalent of such accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic conversion pursuant to Section 10.22(a2.8(a), each Lender shall (and hereby unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all Loans (other than Competitive Negotiated Rate Loans) outstanding to, and any unpaid amounts the Issuing Lender has disbursed under a Letter of Credit owing by, any the Borrower in amounts such that each Lender shall have a share of the outstanding Loans (other than Competitive Negotiated Rate Loans) and unpaid amounts the Issuing Lender has disbursed under a Letter of Credit then owing by any the Borrower equal to its Applicable Percentage Pro Rata Share of the Revolving Credit Commitments (although if because of fluctuations in currency exchange rates any Lender would be required to purchase such participations after giving effect to which such Lender’s Loans and Letter of Credit participations under Section 2.4(d) (including participations therein purchased pursuant to this SectionSection 2.8) would exceed such Lender’s Revolving Credit Commitment, then such participations shall be in an amount after giving effect to which such Lender’s Loans and Letter of Credit participations under Section 2.4(d) (including participations therein purchased pursuant to this SectionSection 2.8) would equal such Lender’s Revolving Credit Commitment). Upon any such occurrence, the Administrative Agent shall notify each Lender and shall specify the amount of Dollars required from such Lender in order to effect the purchases and sales by the various Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the last Interest Payment Date interest payment date through the date of the Sharing EventEvent plus any additional amounts payable by the Borrowers pursuant to Section 12.1 in respect of such accrued but unpaid interest); provided thatprovided, in the event that a Sharing Event shall have occurred, each Lender shall be deemed to have purchased, automatically and without request, such participating interests. Promptly upon receipt of such request, each Lender shall deliver to the Administrative Agent (in immediately available funds in Dollars) the net amounts as specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various Lenders in such amounts as are needed to effect the purchases and sales of participations as provided above. Promptly following receipt thereof, each Lender which has sold participations in any of its Loans and Letter of Credit participations under Section 2.4(d) (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participating interest a participation certificate dated the date of receipt of such funds and in such amount. It is understood that the amount of funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event, Event (i) no further Loans shall be made, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, any outstanding Eurocurrency Rate Loans denominated in any Alternate Optional Currency (including including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such purchase) shall be converted to Loans denominated in Dollars in accordance with Section 10.22(a2.8(a) and be payable immediately in Dollars as if such Eurocurrency Rate Loans had originally been made in Dollars and shall be distributed by the relevant Lenders (or their affiliates) to the Administrative Agent for the account of the Lenders which made such Loans or are participating therein and (iii) the Revolving Credit Commitments of the Lenders shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interest in any Loans upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(d) If any amount required to be paid by any Lender pursuant to Section 10.22(b2.8(b) is not paid to the Administrative Agent within one (1) Business Day following the date upon which such Lender receives notice from the Administrative Agent of the amount of its participations required to be purchased pursuant to said SectionSection 2.8(b), such Lender shall also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations times (ii) the daily average Federal Funds Effective Rate during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent times (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 10.22(b2.8(b) is not in fact made available to the Administrative Agent within three (3) Business Days following the date upon which such Lender receives notice from the Administrative Agent as to the amount of participations required to be purchased by it, the Administrative Agent shall be entitled to recover from such Lender on demand, such amount with interest thereon calculated from such request date at the rate per annum applicable to ABR Base Rate Loans hereunder. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable by any Lender pursuant to this Section 2.8 shall be deemed conclusive absent manifest error. Amounts payable under this Section 2.8 shall be paid to the Administrative Agent for the account of the relevant Lenders; provided that, if the Administrative Agent (in its sole discretion) has elected to fund on behalf of such Lender the amounts owing to such Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received from any Lenders purchases of participations in any Loans pursuant to this SectionSection 2.8, the Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received; provided, however, that in the event that such payment received by any Lenders are required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(f) Each Lender’s obligation to purchase participating interests pursuant to this Section 2.8 shall be absolute and unconditional and shall not be affected by any circumstances including circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Potential Event of Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of Kimco the Borrower or any other Person, (iv) any breach of this Agreement by Kimcothe Borrower, TMC, any of its Subsidiaries or any Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, each Lender which has purchased such participations shall be entitled to receive from the applicable Borrower any increased costs and indemnities directly from the applicable Borrower to the same extent as if it were the direct Lender as opposed to a participant therein. Each The Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this SectionSection 2.8, increased taxes Taxes may be owing by such the Borrower pursuant to Section 2.1212.1, which taxes Taxes shall be paid (to the extent provided in Section 2.1212.1) by such the Borrower, without any claim that the increased taxes Taxes are not payable because same resulted from the participations effected as otherwise required by this SectionSection 2.8.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Mills Corp)
Sharing Event. (a) Upon the occurrence of a Sharing Event, automatically (and without the taking of any action) (x) all then outstanding Eurocurrency Rate Loans denominated in an Alternate Alternative Currency (other than Competitive Bid Loans) shall be automatically converted into Loans denominated in Dollars (in an amount equal to the Dollar Equivalent, as determined by the Administrative Agent in accordance with this Agreementon the date of such conversion, of the aggregate principal amount of the such Eurocurrency Rate Loans on the date such Sharing Event first occurred, which Loans denominated in Dollars (i) shall thereafter be deemed to be ABR Prime Rate Loans and (ii) unless the Sharing Event resulted solely from a termination of the Total Commitment, shall be immediately due and payable on the date such Sharing Event has occurred) and (y) unless the Sharing Event resulted solely from a termination of the Total Commitment, all accrued and unpaid interest and other amounts owing with respect to such Eurocurrency Rate Loans shall be immediately due and payable in Dollars, in an amount equal to the Dollar Equivalent of such accrued and unpaid interest and other amounts.
(b) Upon the occurrence of a Sharing Event, and after giving effect to any automatic conversion pursuant to Section 10.22(a2.11(a), each Lender shall (and hereby herebY unconditionally and irrevocably agrees to) purchase and sell (in each case in Dollars) undivided participating interests in all Loans (other than Competitive Rate Bid Loans) outstanding to, and any unpaid amounts the Issuing Lender L/C Issuer has disbursed under a Letter of Credit owing by, any the Borrower in amounts such that each Lender shall have a share of the outstanding Loans (other than Competitive Bid Loans) and any unpaid amounts the Issuing Lender L/C Issuer has disbursed under a Letter of Credit then owing by any the Borrower equal to its Applicable Commitment Percentage of the Revolving Commitments Total Commitment (although if because of fluctuations in currency exchange rates any Lender would be required to purchase such participations after giving effect to which such Lender’s 's Loans and Letter of Credit participations under Section 2.9(d) (including participations therein purchased pursuant to this SectionSection 2.11) would exceed such sUCH Lender’s Revolving 's Commitment, then such participations shall be in an amount after giving effect to which such Lender’s 's Loans and Letter of Credit participations under Section 2.9(d) (including participations therein purchased pursuant to this SectionSection 2.11) would equal such Lender’s Revolving 's Commitment). Upon any ANY such occurrence, the Administrative Agent shall notify each Lender and shall specify the amount of Dollars required from such Lender in order to effect the purchases and sales by the various Lenders of participating interests in the amounts required above (together with accrued interest with respect to the period for the last Interest Payment Date interest payment date through the date of the Sharing EventEvent plus any additional amounts payable by the Borrowers pursuant to Section 4.5 in respect of such accrued but unpaid interest); provided thatprovided, in the event that a Sharing Event shall have occurred, each Lender shall be deemed deemeD to have purchased, automatically and without request, such participating interests. Promptly upon receipt of such request, each Lender shall deliver to the Administrative Agent (in immediately available funds in Dollars) the net amounts as specified by the Administrative Agent. The Administrative Agent shall promptly deliver the amounts so received to the various Lenders in such amounts as are needed to effect the purchases and sales of participations as provided above. Promptly following receipt thereof, each Lender which has sold participations in any of its Loans and Letter of Credit participations under Section 2.9(d) (through the Administrative Agent) will deliver to each Lender (through the Administrative Agent) which has so purchased a participating interest a participation certificate dated the date of receipt of such funds and in such amount. It is understood that the amount of funds delivered by each Lender shall be calculated on a net basis, giving effect to both the sales and purchases of participations by the various Lenders as required above.
(c) Upon the occurrence of a Sharing Event, Event (i) no further Loans shall be made, (ii) all amounts from time to time accruing with respect to, and all amounts from time to time payable on account of, any outstanding Eurocurrency Rate Loans denominated in any Alternate Alternative Currency (including including, without limitation, any interest and other amounts which were accrued but unpaid on the date of such purchase) shall be converted to Loans denominated in Dollars in accordance with Section 10.22(a2.11(a) and be payable immediately in Dollars as if such Eurocurrency Rate Loans had originally been made in Dollars and anD shall be distributed by the relevant Lenders (or their affiliates) to the Administrative Agent for the account of the Lenders which made such Loans or are participating therein and (iii) the Revolving Commitments of the Lenders shall be automatically terminated. Notwithstanding anything to the contrary contained above, the failure of any Lender to purchase its participating interest in any Loans upon the occurrence of a Sharing Event shall not relieve any other Lender of its obligation hereunder to purchase its participating interests in a timely manner, but no Lender shall be responsible for the failure of any other Lender to purchase the participating interest to be purchased by such other Lender on any date.
(d) If any amount required to be paid by any Lender pursuant to Section 10.22(b2.11(b) is not paid to the Administrative Agent within one (1) Business Day following the date upon upoN which such Lender receives notice from the Administrative Agent of the amount of its participations required to be purchased pursuant to said SectionSection 2.11(b), such Lender LendeR shall also pay to the Administrative Agent on demand an amount equal to the product of (i) the amount so required to be paid by such Lender for the purchase of its participations times (ii) the daily average Federal Funds Effective Rate during the period from and including the date of request for payment to the date on which such payment is immediately available to the Administrative Agent times (iii) a fraction the numerator of which is the number of days that elapsed during such period and the denominator of which is 360. If any such amount required to be paid by any Lender pursuant to Section 10.22(b2.11(b) is not in fact made madE available to the Administrative Agent within three (3) Business Days following the date upon which such Lender receives notice from the Administrative Agent as to the amount of participations required to be purchased by it, the Administrative Agent shall be entitled to recover from such Lender on demand, such amount with interest thereon calculated from such request date at the rate per annum applicable to ABR Prime Rate Loans hereunder. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts payable by any Lender pursuant to this Section 2.11 shall be deemed conclusive absent manifest error. Amounts payable payablE under this Section 2.11 shall be paid to the Administrative Agent for the account of the relevant Lenders; provided that, if the Administrative Agent (in its sole discretion) has haS elected to fund on behalf of such Lender the amounts owing to such Lenders, then the amounts shall be paid to the Administrative Agent for its own account.
(e) Whenever, at any time after the relevant Lenders have received from any Lenders purchases of participations in any Loans pursuant to this SectionSection 2.11, the thE Lenders receive any payment on account thereof, such Lenders will distribute to the Administrative Agent, for the account of the various Lenders participating therein, such Lenders’ ' participating interests in such amounts (appropriately adjusted, in the case of interest payments, to reflect the period of time during which such participations were outstanding) in like funds as received; provided, however, that in the event that such payment received by any Lenders are required to be returned, the Lenders who received previous distributions in respect of their participating interests therein will return to the respective Lenders any portion thereof previously so distributed to them in like funds as such payment is required to be returned by the respective Lenders.
(f) Each Lender’s 's obligation to purchase participating interests pursuant to this Section 2.11 shall be absolute and unconditional and shall not be affected by bY any circumstances including circumstance including, without limitation, (i) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against any other Lender, any the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of a Default or an Event of Default, (iii) any adverse change in the condition (financial or otherwise) of Kimco the Borrower or any other Person, (iv) any breach of this Agreement by Kimcothe Borrower, the Company, any of its Subsidiaries the other Guarantors or any Lender or any other Person, or (v) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing.
(g) Notwithstanding anything to the contrary contained elsewhere in this Agreement, upon any purchase of participations as required above, each Lender which has purchased such participations shall be entitled to receive from the applicable Borrower any increased costs and indemnities directly from the applicable Borrower to the same extent as if it were the direct Lender as opposed to a participant therein. Each The Borrower acknowledges and agrees that, upon the occurrence of a Sharing Event and after giving effect to the requirements of this SectionSection 2.11, increased taxes may be owing by such the Borrower pursuant pursuanT to Section 2.12Section 4.5 and 4.8, which taxes shall be paid (to the extent provided in Section 2.12such sections) by such the Borrower, without any claim that the increased taxes taXES are not payable because same resulted from the participations effected as otherwise required by this SectionSection 2.11.
Appears in 1 contract
Samples: Credit Agreement (Liberty Property Limited Partnership)
