Common use of Additional Amounts Payable Clause in Contracts

Additional Amounts Payable. (a) The Borrower hereby further expressly agrees to pay to the Authority or the Trustee, as applicable, as and when the same shall become due, (i) the fees, including without limitation the Capital Reserve Fee and the Loan Origination Fee, and reasonable expenses of the Authority as provided in the Financing Documents, (ii) the reasonable fees, charges and expenses of the Authority and the Trustee in connection with or arising out of or relating to the issuance and servicing of the Notes, the making, servicing, administration or collection of the Loan or exercise of any rights or responsibilities under the Financing Documents, the Indenture or the Notes, including reasonable charges of counsel, (iii) the reasonable fees and charges of the Trustee, any Authenticating Agent, and any Paying Agent for services, including reasonable charges of counsel, rendered by it directly or indirectly in connection with the Loan or the Notes, including, without limitation, charges for services rendered as Trustee and Paying Agent on the Notes, and (iv) the initial fees and charges of S&P. (b) The Borrower further hereby expressly agrees to pay to the Trustee, as and when the same shall become due, the amounts required by Section 5.04(e) of the Indenture. (c) The Borrower also agrees to pay all amounts payable by it under the Financing Documents, including without limitation Section 6.5 hereof, at the time, in the manner and to the party therein provided, without delay, reduction or offset of any kind or for any reason. (d) In the event the Borrower shall fail to make, or cause to be made, any of the payments required hereby, the unpaid item or installment shall continue as an obligation of the Borrower until such amount shall have been fully paid, and the Borrower agrees to pay, or cause to be paid, the same with interest thereon from the date of failure or, in the case of payments required by Sections 4.3(a)(ii) and (iii) hereof, the date 30 days after the date on which the Borrower is notified thereof, at the interest rate borne by the Notes until fully paid.

Additional Amounts Payable. (a) The Borrower hereby further expressly agrees to pay to the Authority If any change or the Trusteeenactment, as applicable, as and when the same shall become due, (i) the fees, including without limitation the Capital Reserve Fee and the Loan Origination Fee, and reasonable expenses of the Authority as provided in the Financing Documents, (ii) the reasonable fees, charges and expenses of the Authority and the Trustee in connection with adoption or arising out of judicial or relating to the issuance and servicing of the Notes, the making, servicing, administration or collection of the Loan or exercise administrative interpretation of any rights law, regulation, treaty, guideline or responsibilities under the Financing Documents, the Indenture or the Notes, including reasonable charges of counsel, directive (iii) the reasonable fees and charges of the Trustee, any Authenticating Agent, and any Paying Agent for services, including reasonable charges of counsel, rendered by it directly or indirectly in connection with the Loan or the Notes, including, without limitation, charges for services rendered as Trustee and Paying Agent Regulation D of the Board of Governors of the Federal Reserve System) either (a) subjects the Lender or any applicable Lending Installation to any additional tax, duty, charge, deduction or withholding with respect to any of the Facilities (other than a tax measured by the net or gross income of the Lender), or (b) imposes or increases any reserve, special deposit or similar requirement on account of any of the Facilities not otherwise provided in this Agreement or (c) imposes increased minimum capital requirements on the NotesLender or any applicable Lending Installation on account of its issuing or maintaining any of the Facilities; and if any of the foregoing (i) results in an increase to the Lender or the applicable Lending Installation in the cost of issuing or maintaining any of the Facilities, and or making any payment on account of any of the Facilities, (ii) reduces the amount of any payment receivable by the Lender or the applicable Lending Installation under this Agreement with respect to any of the Facilities, (iii) requires the Lender or the applicable Lending Installation to make any payment calculated by reference to the gross amount of any sum received or paid by the Lender or the applicable Lending Installation pursuant to any of the Facilities, or (iv) reduces the rate of return on the Lender's or the applicable Lending Installation's capital to a level below that which the Lender or the applicable Lending Installation could otherwise have achieved (taking into consideration such party's policies with respect to Capital Adequacy), then Borrower shall pay to the Lender or the applicable Lending Installation, as additional compensation for the Facilities, such amounts as will compensate the Lender or the applicable Lending Installation for such increased cost, payment or reduction. Within twenty (20) days after (a) the initial fees demand therefor and charges of S&P. (b) The presentation by the Lender of a certificate to Borrower further hereby expressly agrees to pay to the Trustee, as and when the same shall become due, the amounts required by Section 5.04(e) containing a statement of the Indenture. cause of such increased cost, payment or reduction and a calculation of the amount thereof (c) The Borrower also agrees which statement and calculation shall be presumed prima facie to pay all amounts payable by it under the Financing Documentsbe correct), including without limitation Section 6.5 hereof, at the time, in the manner and to the party therein provided, without delay, reduction or offset of any kind or for any reason. (d) In the event the Borrower shall fail to make, or cause to be made, any of pay the payments required hereby, the unpaid item or installment shall continue as an obligation of the Borrower until such additional amount shall have been fully paid, and the Borrower agrees to pay, or cause to be paid, the same with interest thereon payable measured from the date of failure orsuch change, in enactment, adoption or interpretation first affects the case of payments required by Sections 4.3(a)(ii) and (iii) hereof, Lender or the date 30 days after the date on which the Borrower is notified thereof, at the interest rate borne by the Notes until fully paidapplicable Lending Installation.

Additional Amounts Payable. (a) The Borrower hereby further expressly agrees to pay to the Authority If any change or the Trusteeenactment, as applicable, as and when the same shall become due, (i) the fees, including without limitation the Capital Reserve Fee and the Loan Origination Fee, and reasonable expenses of the Authority as provided in the Financing Documents, (ii) the reasonable fees, charges and expenses of the Authority and the Trustee in connection with adoption or arising out of judicial or relating to the issuance and servicing of the Notes, the making, servicing, administration or collection of the Loan or exercise administrative interpretation of any rights law, regulation, treaty, guideline or responsibilities under the Financing Documents, the Indenture or the Notes, including reasonable charges of counsel, directive (iii) the reasonable fees and charges of the Trustee, any Authenticating Agent, and any Paying Agent for services, including reasonable charges of counsel, rendered by it directly or indirectly in connection with the Loan or the Notes, including, without limitation, charges for services rendered as Trustee Regulation D of the Board of Governors of the Federal Reserve System) either (a) subjects any Lender or any applicable Lending Installation or the LC Issuer to any additional tax, duty, charge, deduction or withholding with respect to any of the Facilities (other than a tax measured by the net or gross income of such Lender), or (b) imposes or increases any reserve, special deposit or similar requirement on account of any of the Facilities not otherwise provided in this Agreement or (c) imposes increased minimum capital requirements on any Lender or any applicable Lending Installation or the LC Issuer on account of its issuing or maintaining any of the Facilities; and Paying Agent if any of the foregoing (i) results in an increase to such Lender or the applicable Lending Installation or the LC Issuer in the cost of issuing or maintaining any of the Facilities, or making any payment on account of any of the NotesFacilities, and (ii) reduces the amount of any payment receivable by such Lender or the applicable Lending Installation or the LC Issuer under this Agreement with respect to any of the Facilities, (iii) requires such Lender or the applicable Lending Installation or the LC Issuer to make any payment calculated by reference to the gross amount of any sum received or paid by such Lender or the applicable Lending Installation or the LC Issuer pursuant to any of the Facilities, or (iv) reduces the rate of return on such Lender's or the applicable Lending Installation or the LC Issuer's capital to a level below that which such Lender or the applicable Lending Installation or the LC Issuer could otherwise have achieved (taking into consideration such party's policies with respect to Capital Adequacy), then Borrower shall pay to such Lender or the applicable Lending Installation or the LC Issuer, as additional compensation for the Facilities, such amounts as will compensate such Lender or the applicable Lending Installation or the LC Issuer for such ------------------------------------------------------------------------------- CREDIT AGREEMENT PAGE 61 increased cost, payment or reduction. Within twenty (20) days after (a) the initial fees demand therefor and charges of S&P. (b) The presentation by a Lender of a certificate to Borrower further hereby expressly agrees to pay to the Trustee, as and when the same shall become due, the amounts required by Section 5.04(e) containing a statement of the Indenture. cause of such increased cost, payment or reduction and a calculation of the amount thereof (c) The Borrower also agrees which statement and calculation shall be presumed prima facie to pay all amounts payable by it under the Financing Documentsbe correct), including without limitation Section 6.5 hereof, at the time, in the manner and to the party therein provided, without delay, reduction or offset of any kind or for any reason. (d) In the event the Borrower shall fail to make, or cause to be made, any of pay the payments required hereby, the unpaid item or installment shall continue as an obligation of the Borrower until such additional amount shall have been fully paid, and the Borrower agrees to pay, or cause to be paid, the same with interest thereon payable measured from the date of failure orsuch change, in enactment, adoption or interpretation first affects such Lender or the case of payments required by Sections 4.3(a)(ii) and (iii) hereof, applicable Lending Installation or the date 30 days after the date on which the Borrower is notified thereof, at the interest rate borne by the Notes until fully paidLC Issuer.

Additional Amounts Payable. The Obligor shall pay the following amounts to the following persons, all as “Additional Payments” under this Loan Agreement: (a) The Borrower hereby further expressly agrees to If at any time that the Bonds are outstanding an Event of Taxability occurs, the Obligor shall within thirty (30) days of the date of the Event of Taxability (i) pay to the Authority Trustee for deposit in the Bond Fund one hundred percent (100%) of the unpaid installments owing on the Note pursuant to this Loan Agreement plus accrued interest to the date of redemption of the Bonds in accordance with Article III of the Indenture, or (ii) commence payment of interest on the Note at the Taxable Rate. Provided, however, that this subsection (a) shall be applicable only as to a Bondowner or Bondowners with respect to whom an Event of Taxability has occurred and only after the Obligor shall have had the opportunity to exercise applicable rights of contest, if any, granted to it pursuant to Section 3.4(c). (b) Within thirty days after the occurrence of an Event of Taxability, whether such Event of Taxability occurs before or after payment of the Bonds, the Obligor shall pay: (i) to the Trustee for deposit in the Bond Fund the amount equal to the difference between the sum necessary to yield an interest rate on the unpaid principal balance of any Bond as to which an Event of Taxability has occurred, from the Date of Taxability until the date on which the Issuer commences paying interest at the Taxable Rate, equal to the Taxable Rate less the amount of interest actually paid on the Bonds from the Date of Taxability to the date the Obligor commences paying interest at the Taxable Rate; plus (ii) to the owners and former owners of any Bond as to which an Event of Taxability has occurred, an amount equal to the amount of any Additions to Tax, which are payable by such Bondowners to the United States or any state or local government as a consequence of the failure to include the interest or any amount in respect of interest on the Bond in the Federal Gross Income of such Bondowners and which are deductible by such Bondowners for Federal income tax purposes; plus (iii) to the owners and former owners of any Bond as to which an Event of Taxability has occurred, an amount equal to the amount of any Additions to Tax which are payable by such Bondowners to the United States or any state or local government after payment of all Federal, state or local taxes required to be paid by such Bondowners in respect of the receipt thereof, as a consequence of the failure to include the interest or any amount in respect of interest on the Bond and which are not deductible by such Bondowners for Federal income tax purposes plus all Federal, state or local taxes required to be paid by such Bondowners with respect to the sums received pursuant to this subsection (iii); plus (iv) to the Trustee, as applicableto the owners and former owners of the Bond and to the Issuer, as the case may be, an amount which is sufficient to reimburse them for all reasonable costs, fees and when expenses accrued or to accrue as a result of the same shall become due, occurrence of an Event of Taxability. (i) Not later than twenty (20) days after receipt by a Bondowner of a written revenue agent’s report asserting a deficiency against such Bondowner or otherwise setting forth a finding that interest on the feesBonds is not excludable from such Bondowner’s gross income for Federal income tax purposes, including without limitation such Bondowner shall notify the Capital Reserve Fee Obligor of such event and shall furnish the Obligor with a copy of the relevant portions of such written report; provided, that a failure by a Bondowner to comply with the requirement of this paragraph (c), except in the case of a willful failure, shall not in any way adversely affect the Bondowner’s right to the additional payments set forth in Section 3.4(b) hereof. Thereafter, the Bondowner shall afford the Obligor an opportunity to discuss such finding with the Internal Revenue Service and to make any written submission to the Internal Revenue Service which the Obligor deems desirable, and the Loan Origination FeeBondowner shall use its best efforts to facilitate such discussions and written submissions; provided, that if the Bondowner shall, in good faith and in its sole discretion, determine that the commencement or continuance of any such discussions or submissions by the Obligor would extend the audit and review of the Bondowner’s Federal income tax return beyond the period such audit and review would require but for the commencement or continuance of such discussions or submissions, or if the Bondowner shall otherwise determine, in good faith and in its sole discretion, that, for reasons other than matters relating to the proposed inclusion in Federal gross income of interest on the Bonds, it is in the Bondowner’s interest to discontinue the audit and review of the Bondowner’s Federal income tax return, then, upon receipt of notice by the Obligor from the Bondowner to such effect, the Obligor shall have no further right to commence or continue such discussions or submissions, and reasonable expenses of the Authority as provided in Bondowner shall have the Financing Documents, right to cause such audit and review to be closed. (ii) If a Bondowner receives a statutory notice of deficiency relating to interest on the reasonable feesBonds, charges and expenses such Bondowner determines in its sole discretion not to pay the deficiency, it shall promptly notify the Obligor of its determination and shall, at the request of the Authority Obligor, file a petition in the United States Tax Court and permit the Trustee Obligor to participate in connection with or arising out the conduct of or relating the proceedings before the United States Tax Court insofar as they relate to the issuance and servicing tax treatment of interest on the Notes, the making, servicing, administration or collection of the Loan or exercise of any rights or responsibilities under the Financing Documents, the Indenture or the Notes, including reasonable charges of counsel, Bonds. (iii) If a Bondowner receives a statutory notice of deficiency and decides, in its sole discretion, not to file a petition in the reasonable fees and charges United States Tax Court, then such Bondowner, at the request of the TrusteeObligor, shall file promptly a claim for refund with respect to the tax attributable to the inclusion of interest on the Bonds in such Bondowner’s Federal Gross Income. The Obligor shall provide such Bondowner with the funds necessary to enable such Bondowner to make the claim for refund with regard to the inclusion of interest issue. If any Authenticating Agentsuch claim shall not be allowed by the Internal Revenue Service, such Bondowner shall, at the request of the Obligor, promptly commence a suit for refund (in a forum chosen by such Bondowner in its sole discretion) and prosecute an appeal or appeals from any adverse determination as the Obligor shall direct, and the Bondowner shall permit the Obligor to participate in the conduct of such proceedings insofar as they relate to the tax treatment of interest on the Bonds. (iv) For all purposes of this Section 3.4(c), the right of the Obligor to participate in any Paying Agent proceeding shall mean the right (subject to the approval of counsel for servicesthe Bondowner, including reasonable charges which approval shall, taking into account the best interests of counselthe Bondowner, rendered the timeliness of any request made by it directly or indirectly the Obligor and all other relevant facts and circumstances, not be unreasonably withheld) to assist the Bondowner and its counsel in connection with the Loan submission and content of documentation, protests, memoranda of fact and law and briefs, the conduct of oral arguments or presentations, the Notesselection of witnesses and the negotiation of stipulations of fact, all as may be appropriate in proceedings before the Internal Revenue Service, the United States Tax Court, the Claims Court, a Federal District Court or any court of appellate jurisdiction, as the case may be. (v) As a condition precedent to the exercise by the Obligor of the rights of contest granted to it under this Section 3.4(c), the Obligor shall deliver to the Bondowner an opinion of nationally recognized bond counsel to the effect that a meritorious claim exists with respect to the exemption of interest on the Bonds from Federal Gross Income. In addition, the Obligor shall reimburse the Bondowner and hold it harmless for all costs and expenses incurred in connection with any contest, including, without limitation, charges for services rendered as Trustee the amount of all taxes and Paying Agent Additions to Tax with respect to the tax attributable to the inclusion of interest on the NotesBonds in the Bondowner’s Federal Gross Income which were paid to the United States prior to the filing of a claim for refund under Section 3.4(d) hereof, and (iv) the initial all fees and charges disbursements of S&P. (b) attorneys, accountants and expert witnesses. The Borrower further hereby expressly agrees Bondowner may also require the Obligor to pay post a bond to the Trustee, as secure adequately payment of such costs and when the same shall become due, the amounts required by Section 5.04(e) of the Indentureexpenses. (cvi) The Borrower also agrees Without limiting the rights of the Obligor to pay all amounts payable by it under contest as hereinabove set forth and except as provided in clause (iii) above, the Financing DocumentsBondowner shall have sole discretion to decide whether to prosecute an appeal from an adverse determination with respect to the tax treatment of interest on the Bonds at any level in any forum in which such adverse determination is made; provided, including without limitation Section 6.5 hereofhowever, that in the event the Bondowner shall determine to prosecute an appeal with respect to any other issue, then the Bondowner shall, at the timerequest of the Obligor, also prosecute an appeal with respect to such adverse determination and shall permit the Obligor to participate in the manner and conduct of the proceedings insofar as they relate to the party therein provided, without delay, reduction or offset tax treatment of any kind or for any reasoninterest on the Bonds. (d) In the event that the Borrower Obligor shall fail make any payments to makea Bondowner pursuant to Section 3.4(b) and the Bondowner shall thereafter receive a refund as a consequence of a determination that interest on the Bonds is excludable from Federal Gross Income, the Bondowner shall be obligated to pay promptly to the Obligor the amount refunded (including any interest paid) such Bondowner by the Internal Revenue Service less any costs or expenses incurred by the Bondowner with respect to any proceeding or action for which the Obligor has not yet paid the Bondowner. (e) If a Bondowner determines, in good faith after consultation with counsel, that there is a substantial likelihood for any reason whatsoever, including, without limitation, a change of law, issuance of temporary, proposed or final Treasury Regulations, issuance or revocation of an Internal Revenue Service ruling (including a private letter ruling) or a court decision, that it might be required to include all or any portion of the interest on the Bonds in its Federal Gross Income, or cause that the Bondowner shall be subject to any excise, preference, minimum or other type of tax because of its ownership of the Bonds or receipt of interest thereon, such Bondowner shall be entitled to request a Qualifying Opinion of Counsel with respect to interest on the Bonds for the period from the issuance of the Bonds or for any lesser period specified in the Bondowner’s request. The fees and disbursements of counsel in rendering such opinion shall be paid by the Obligor. (f) To the Trustee, when due, all fees in accordance with its fee proposal to the Obligor and charges for services rendered under the Indenture, the Collateral Documents or this Loan Agreement, and all reasonable expenses (including without limitation reasonable fees and charges of any Paying Agent, Bond Registrar, counsel, accountant, engineer or other person) incurred in the performance of the duties of the Trustee and others under the Indenture, the Collateral Documents or this Loan Agreement for which the Trustee and other persons are entitled to repayment or reimbursement; (g) To the Issuer, upon demand, its regular administrative fee, if any, and all expenses (including without limitation attorney’s fees) incurred by the Issuer in relation to the transactions contemplated by this Loan Agreement and the Indenture, which are not otherwise to be madepaid by the Obligor under this Loan Agreement or the Indenture, including without limitation, the obligation to pay rebatable arbitrage to the extent not paid under clause (j) of this Section; (h) To the appropriate person, all taxes, assessments and charges required to be paid by Section 5.7; (i) To the appropriate person, such payments as are required (i) as payment for or reimbursement of any and all reasonable costs, expenses and liabilities incurred by the Issuer or the Trustee or any of them in satisfaction of any obligations of the Obligor hereunder that the Obligor does not perform, or incurred in the defense of any action or proceeding with respect to the Project, this Loan Agreement, the Collateral Documents or the Note, or (ii) as reimbursement for expenses paid, or as prepayment of expenses to be paid, by the Issuer or the Trustee and that are incurred as a result of a request by the Obligor or a requirement of this Loan Agreement or the Collateral Documents and that the Obligor is not otherwise required to pay under this Loan Agreement; (j) To the Trustee, on demand, any sums owing pursuant to Section 507 of the payments Indenture; and (k) To the appropriate person, any other amounts required herebyto be paid by the Obligor under this Loan Agreement, the unpaid item Indenture or installment the Collateral Documents. Any past due Additional Payments shall continue as an obligation of the Borrower Obligor until they are paid and shall bear interest at two percent (2%) in excess of the Prime Rate during the period such amount shall have been fully paid, and the Borrower agrees to pay, or cause to be paid, the same with interest thereon from the date of failure or, in the case of payments required by Sections 4.3(a)(ii) and (iii) hereof, the date 30 days after the date on which the Borrower is notified thereof, at the interest rate borne by the Notes until fully paidAdditional Payments remain unpaid.

Additional Amounts Payable. (a) The Borrower hereby further expressly agrees to pay to the Authority Issuer or the Trustee, as applicable, as and when the same shall become due, (i) the fees, including without limitation the Capital Reserve Fee and the Loan Origination FeePremium, and reasonable expenses of the Authority Issuer as provided in the Financing Documents, (ii) the reasonable fees, charges and expenses of the Authority Issuer and the Trustee in connection with or arising out of or relating to the issuance and servicing of the NotesBonds, the making, servicing, administration or collection of the Loan or exercise of any rights or responsibilities under the Financing Documents, the Indenture or the NotesBonds, including reasonable charges of counsel, (iii) the reasonable fees and charges of the Trustee, any Co-Trustee, any Authenticating Agent, and any Paying Agent and the Registrar for services, including reasonable charges of counsel, rendered by it directly or indirectly in connection with the Loan or the NotesBonds, including(iv) any amounts that may be required to be paid by the Issuer or the Borrower pursuant to Article XIII of the Indenture, without limitation, charges for services rendered as Trustee and Paying Agent on (v) any amounts that may be required to be paid by the NotesBorrower pursuant to Section 6.14 of this Agreement, and (ivvi) the initial fees and charges of S&P.the Rating Services. (b) The Borrower further hereby expressly agrees to pay to the Trustee, as and when the same shall become due, the amounts required by Section 5.04(e) of the Indenture. (c) The Borrower also agrees to pay all amounts payable by it under the Financing DocumentsDocuments and the Mortgage, including without limitation Section 6.5 6.7 hereof, at the time, in the manner and to the party therein provided, without delay, reduction or offset of any kind or for any reason. (dc) In the event the Borrower shall fail to make, or cause to be made, any of the payments required hereby, the unpaid item or installment shall continue as an obligation of the Borrower until such amount shall have been fully paid, and the Borrower agrees to pay, or cause to be paid, the same with interest thereon from the date of failure or, in the case of payments required by Sections 4.3(a)(ii), (iii) and (iiiiv) hereof, the date 30 days after the date on which the Borrower is notified thereof, at the interest rate borne by the Notes Bonds until fully paid, except as may otherwise be provided by Article XIII of the Indenture. (d) The Additional Payments provided for herein and in the Loan Note shall be made in immediately available funds as and when due directly to or for the account of the entitled party. In the event a party entitled to payment directs in writing that such payment be made to another party in the United States, the Borrower shall make payments to such designee.