Gross-Up Payments If all or any portion of any payment or benefit that the Employee is entitled to receive from the Company pursuant to this Agreement (a "Payment") constitutes an "excess parachute payment" within the meaning of Section 280G of the Code, and as such is subject to the excise tax imposed by Section 4999 of the Code or to any similar Federal, state or local tax or assessment (the "Excise Tax"), the Company or its successors or assigns shall pay to the Employee an additional amount (the "Gross-Up Payment") with respect to such Payment. The amount of the Gross-Up Payment shall be sufficient that, after paying (a) any Excise Tax on the Payment, (b) any Federal, state or local income or employment taxes and Excise Tax on the Gross-Up Payment, and (c) any interest and penalties imposed in respect of the Excise Tax, the Employee shall retain an amount equal to the full amount of the Payment. For the purpose of determining the amount of any Gross-Up Payment, the Employee shall be deemed to pay Federal income taxes at the highest marginal rate applicable in the calendar year in which the Gross-Up Payment is made, and state and local income taxes at the highest marginal rate applicable in the state and locality where the Employee resides on the date the Gross-Up Payment is made, net of the maximum reduction in Federal income taxes that could be obtained from deducting such state and local taxes. The Gross-Up Payment with respect to any Payment shall be paid to the Employee within ten (10) days after the Internal Revenue Service or any other taxing authority issues a notice stating that an Excise Tax is due with respect to the Payment, unless the Company undertakes to challenge the taxing authority on the applicability of such Excise Tax and indemnifies the Employee for (a) any amounts ultimately determined to be payable, including the Excise Tax and any related interest and penalties, (b) all expenses (including attorneys' and experts' fees) reasonably incurred by the Employee in connection with such challenge, as such expenses are incurred, and (c) all amounts that the Employee is required to pay to the taxing authorities during the pendency of such challenge (such amounts to be repaid by the Employee to the Company if they are ultimately refunded to the Employee by the taxing authority).
Amounts Payable (a) The Company hereby covenants and agrees to repay the loan, as follows: on or before any Interest Payment Date for the Bonds or any other date that any payment of interest, premium, if any, or principal or Purchase Price is required to be made in respect of the Bonds pursuant to the Indenture, until the principal of, premium, if any, and interest on the Bonds shall have been fully paid or provision for the payment thereof shall have been made in accordance with the Indenture, in immediately available funds, a sum which, together with any other moneys available for such payment in any account of the Bond Fund, will enable the Trustee to pay the amount payable on such date as Purchase Price or principal of (whether at maturity or upon redemption or acceleration or otherwise), premium, if any, and interest on the Bonds as provided in the Indenture; provided, however, that the obligation of the Company to make any payment hereunder shall be deemed satisfied and discharged to the extent of the corresponding payment made by a Credit Provider (if any) to the Trustee under a Credit Facility (if any) or by the Confirming Bank (if any) under the Confirming Letter of Credit (if any). While the Bonds bear interest at a Bank Rate, each of the Company and ITT Holdings LLC agrees to pay (or cause to pay) the Purchase Price on the Bonds when due pursuant to Sections 4.01 and 4.02 of the Indenture. It is understood and agreed that all payments payable by or on behalf of the Company under subsection (a) of this Section 4.02 are assigned by the Issuer to the Trustee for the benefit of the Owners of the Bonds. Each of the Company and ITT Holdings LLC assents to such assignment. The Issuer hereby directs the Company and ITT Holdings LLC and the Company and ITT Holdings LLC hereby agree, to pay to the Trustee at the Principal Office of the Trustee all payments payable by or on behalf of the Company and/or ITT Holdings LLC pursuant to this subsection.
(b) Each of the Company and ITT Holdings LLC agrees that it will also pay:
(i) All of the Issuer’s reasonable actual out-of-pocket expenses and costs of issuance in connection with the Bonds and an annual administrative payment payable directly to the Issuer on June 1 of each year in an annual amount equal to 1/10th of 1% of the principal amount of all Bonds Outstanding on January 2 of each year. The administrative payments shall be used for purposes of paying administrative and related costs of the Issuer, but shall not include Trustee fees incurred by the Issuer, and the Issuer agrees that it will notify the Company in writing prior to March 20th of each calendar year hereafter if it shall not waive such administrative payments for such year and, if these fees are not waived, such written notice shall advise the Company of the amount that is to be paid (not to exceed 1/10 of 1% per annum) the date on which the payment is due, and where such payment is to be remitted. In the event the Company should fail to pay such administrative expenses then due, the payment shall continue as an obligation of the Company until the amount shall have been fully paid, and the company agrees to pay the same with interest thereon (to the extent legally enforceable) at a rate per annum equal to the interest rate in effect from time to time on the Bonds, until paid; and
(ii) the reasonable fees and expenses of such accountants, consultants, attorneys and other experts as may be engaged by the Issuer, the Administrative Agent or the Trustee to prepare such audits, financial statements or opinions or provide such other services as are reasonably required under this Agreement, the Indenture or the Tax Regulatory Agreement; and
(iii) all taxes and assessments of any type or character charged to the Issuer, the Administrative Agent or to the Trustee affecting the amount available to the Issuer, the Administrative Agent or the Trustee from payments to be received hereunder or in any way arising due to the transactions contemplated hereby (including taxes and assessments assessed or levied by any public agency or governmental authority of whatever character having power to levy taxes or assessments) but excluding any taxes based upon the capital and/or income of the Trustee, the Administrative Agent or any other person other than the Company; provided, however, that the Company shall have the right to protest any such taxes or assessments assessed or levied upon them and that the Company shall have the right to withhold payment of any such taxes or assessments pending disposition of any such protest or contest unless such withholding, protest or contest would materially adversely affect the rights or interests of the Issuer, the Administrative Agent or the Trustee. The forgoing payments shall be billed to the Company and/or ITT Holdings LLC by the Issuer, the Administrative Agent or the Trustee from time to time, together with (x) a statement executed by a duly authorized officer or agent of the Issuer, the Administrative Agent or the Trustee, as the case may be, certifying that the amount billed has been incurred or paid by the Issuer, the Administrative Agent or the Trustee for one or more of the above items, and (y) a copy of the invoice or statement for the amount so incurred or paid. Amounts so billed shall be paid by the Company and ITT Holdings LLC within thirty (30) days after receipt of the b▇▇▇ by the Company or ITT Holdings LLC unless, in the case of expenditures described under clause (iii) above, the Company or ITT Holdings LLC is contesting such amounts in good faith.
(c) The Company and ITT Holdings LLC will also pay the reasonable fees and expenses of the Trustee under the Indenture and all other amounts which may be payable to the Trustee under Section 10.02 of the Indenture, such amounts to be paid directly to the Trustee for the Trustee’s own account as and when such amounts become due and payable.
(d) Each of the Company and ITT Holdings LLC covenants, for the benefit of the Owners of the Bonds, to pay or cause to be paid, to the Trustee, such amounts as shall be necessary to enable the Trustee to pay the Purchase Price of Bonds delivered to it for purchase, all as more particularly described in Sections 4.01 and 4.02 of the Indenture; provided, however, that the obligation of the Company and ITT Holdings LLC to make any such payment under this Section 4.02(d) shall be reduced by the amount of moneys available for such payment described in Section 4.03(a) of the Indenture; and provided, further, that the obligation of the Company and ITT Holdings LLC to make any payment under this subsection (d) shall be deemed to be satisfied and discharged to the extent of the corresponding payment made by a Credit Provider (if any) under a Credit Facility (if any) or by the Confirming Bank (if any) under the Confirming Letter of Credit (if any).
(e) The Company shall promptly notify the Owners and any Prior Owners of any Determination of Taxability. Each of the Company and ITT Holdings LLC covenants, for the benefit of the Owners of the Bonds, to pay or cause to be paid to the Trustee when due any other amounts payable under the Bonds, including, but not limited to the following while the Bonds bear interest at a Bank Rate:
(i) In the event of a Determination of Taxability (as defined in the Indenture), and upon demand of the Owner or any prior Owner, the Company and ITT Holdings LLC shall pay or cause to be paid to the Trustee such additional amount as shall be necessary to provide that interest on the Bonds shall have been payable at the Taxable Adjusted LIBOR Rate (as defined in the Indenture) from the Date of Taxability (as defined in the Indenture). The Company shall promptly notify the Owners and any Prior Owners of any Determination of Taxability.
(ii) Upon a Determination of Non De Minimis Exception Status (as defined in the Indenture), and upon demand of the Owner or any prior Owner, the Company shall pay or cause to be paid to the Trustee such additional amounts as shall be necessary to provide that interest on the Bonds shall have been payable at the Adjusted Non De Minimis Exception Status (as defined in the Indenture).
(iii) Upon a Determination of Taxability or a Determination of Non de Minimis Exception Status, the Company and ITT Holdings LLC shall also pay or cause to be paid to the Trustee upon demand of such Owner or prior Owner any taxes, interest, penalties or other charges assessed against or payable by such Owner or prior Owner and attributable to such Determination of Taxability or a determination of Non De Minimis Exception Status and all reasonable administrative, out of pocket and other expenses incurred by such Owner or prior Owner which are attributable to such event, including, without limitation, the costs incurred by such Owner or prior Owner to amend any of its tax returns, notwithstanding the repayment of the entire principal amount of the Bonds or any transfer or assignment of the Bonds.
(iv) If there is any Change in Law (as defined in the Revolving Credit Agreement) that increases the cost to the Bank holding the Bonds, then the Company and ITT Holdings LLC shall pay or cause to be paid to the Trustee such additional costs incurred or reduction suffered in accordance with Section 4.11 of the Revolving Credit Agreement, which section is incorporated herein by reference.