and the result of any of the foregoing shall be to increase the cost to such Lender or the Agent of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan, or to reduce the amount of any sum received or receivable by such Lender or the Agent hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or the Agent, the Borrower will pay to such Lender or Agent, as the case may be, such additional amount or amounts as will compensate such Lender or Agent, as the case may be, for such additional costs incurred or reduction suffered.
(j)U.S. Tax Reporting. The Borrower agrees to treat the Term Loan as indebtedness for U.S. income tax purposes and to treat the Royalty Payments and any Additional Royalty Payments as payments of interest (or, if applicable, repayments of principal), in each case, unless otherwise required by a final determination of an applicable Governmental Authority or unless otherwise required pursuant to a change in applicable law after the date hereof; provided, that the Borrower shall notify the Agent in writing promptly upon the initiation of any Tax audit, investigation, suit or other proceeding relating to such treatment and shall keep the Agent promptly informed of all material developments with respect thereto. The Loan Parties, the Agent and the Lenders shall report on their tax returns in a manner consistent with the foregoing and consistent with the projected payment schedule and comparable yield calculations (as approved by the Agent), unless otherwise required by applicable law or a final determination of an applicable Governmental Authority.
(k)Australian Indirect Tax.
(i)All payments to be made by a Loan Party under or in connection with any Loan Document have been calculated without regard to Australian Indirect Tax. If all or part of any such payment is the consideration for a taxable supply or chargeable with Australian Indirect Tax then, when the Loan Party makes the payment: (a) it must pay to Agent or Lenders an additional amount equal to that payment (or part) multiplied by the appropriate rate of Australian Indirect Tax and (b) Agent or Lenders will promptly provide to the Loan Party a tax invoice complying with the relevant law relating to that Australian Indirect Tax.
(ii)Where a Loan Document requires a Loan Party to reimburse or indemnify the Agent or Lenders for any costs or expenses, that Loan Party shall also at the same time pay and indemnify the Agent or Lenders against all Australian Indirect Tax incurred by the Agent or Lenders in respect of the costs or expenses save to the extent that the Agent or Lenders is entitled to repayment or credit in respect of the Australian Indirect Tax. The Agent or Lenders will promptly provide to the Loan Party a tax invoice complying with the relevant law relating to that Australian Indirect Tax.
(l)Survival. Each party’s obligations under this Section 2.10 shall survive the resignation or replacement of the Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Term Commitment and the repayment, satisfaction or discharge of all obligations under any Loan Document.
2.11Administration Fee. The Loan Parties shall pay Agent an administrative fee accruing at the rate of 1.00% per annum of the Maximum Term Loan Amount. All such fees payable under this Section 2.11 shall be payable annually in arrears on each anniversary of the Closing Date, and, in addition, on the earliest to occur of (i) the Maturity Date, (ii) the date that Borrower prepays the outstanding Secured Obligations, or (iii) the date that the Secured Obligations become due and payable. Such fee shall be prorated for any partial year and calculated on the basis of the actual number of days elapsed and a 360-day year.
Confidential material omitted and filed separately with the Commission.