OF THE LENDER
PARTICIPATING IN THE TRANSACTIONS SET FORTH HEREIN) AND ALL INTEREST, PENALTIES
OR SIMILAR LIABILITIES WITH RESPECT THERETO (ALL SUCH NON-EXCLUDED TAXES,
LEVIES, IMPOSTS, DUTIES, FEES, ASSESSMENTS OR OTHER CHARGES BEING REFERRED TO
COLLECTIVELY AS "TAXES").
IF ANY TAXES ARE SO LEVIED OR IMPOSED, BORROWER
AGREES TO PAY THE FULL AMOUNT OF SUCH TAXES, AND SUCH ADDITIONAL AMOUNTS AS MAY
BE NECESSARY SO THAT EVERY PAYMENT OF ALL AMOUNTS DUE UNDER
6
THIS AGREEMENT OR UNDER ANY NOTE, INCLUDING ANY AMOUNT PAID PURSUANT TO THIS
SUBSECTION 1.10 AFTER WITHHOLDING OR DEDUCTION FOR OR ON ACCOUNT OF ANY TAXES,
WILL NOT BE LESS THAN THE AMOUNT PROVIDED FOR HEREIN; PROVIDED, HOWEVER, THAT
BORROWER SHALL NOT BE REQUIRED TO INCREASE ANY SUCH AMOUNTS PAYABLE TO AGENT OR
ANY LENDER (I) THAT IS NOT ORGANIZED UNDER THE LAWS OF THE UNITED STATES, IF
SUCH PERSON FAILS TO COMPLY WITH THE OTHER REQUIREMENTS OF SUBSECTION 16.11, OR
(II) IF THE INCREASE IN SUCH AMOUNT PAYABLE RESULTS FROM AGENT'S OR SUCH
LENDER'S OWN WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
BORROWER WILL FURNISH TO
AGENT AS PROMPTLY AS POSSIBLE AFTER THE DATE THE PAYMENT OF ANY TAXES IS DUE
PURSUANT TO APPLICABLE LAW CERTIFIED COPIES OF TAX RECEIPTS EVIDENCING SUCH
PAYMENT BY BORROWER.
1.11.
PRO-FORMA COMPLIANCE CERTIFICATE.
ON OR BEFORE THE CLOSING DATE,
THE BORROWER SHALL DELIVER TO THE AGENT THE PRO-FORMA COMPLIANCE CERTIFICATE
(THE "PRO-FORMA COMPLIANCE CERTIFICATE").
THE PRO-FORMA COMPLIANCE CERTIFICATE
SHALL BE IN THE FORM OF THE COMPLIANCE CERTIFICATE ATTACHED HERETO AS EXHIBIT C,
AND SHALL BE COMPLETED BY THE BORROWER SO AS TO GIVE EFFECT TO CONSUMMATION OF
THIS AGREEMENT (INCLUDING THE MAKING OF THE INITIAL LOANS HEREUNDER).
1.12.
CAPITAL ADEQUACY.
IF AFTER THE DATE OF THIS AGREEMENT, ANY LENDER
SHALL HAVE REASONABLY DETERMINED THAT THE ADOPTION OR IMPLEMENTATION OF ANY
APPLICABLE LAW, RULE OR REGULATION REGARDING CAPITAL REQUIREMENTS FOR BANKS OR
BANK HOLDING COMPANIES, OR ANY CHANGE THEREIN (INCLUDING, WITHOUT LIMITATION,
ANY CHANGE ACCORDING TO A PRESCRIBED SCHEDULE OF INCREASING REQUIREMENTS,
WHETHER OR NOT KNOWN ON THE DATE OF THIS AGREEMENT), OR ANY CHANGE IN THE
INTERPRETATION OR ADMINISTRATION THEREOF BY ANY GOVERNMENTAL AUTHORITY, CENTRAL
BANK OR COMPARABLE AGENCY CHARGED WITH THE INTERPRETATION OR ADMINISTRATION
THEREOF, OR COMPLIANCE BY SUCH LENDER WITH ANY REQUEST OR DIRECTIVE OF ANY SUCH
PERSON REGARDING CAPITAL ADEQUACY (WHETHER OR NOT HAVING THE FORCE OF LAW) HAS
THE EFFECT OF REDUCING THE RETURN ON SUCH LENDER'S CAPITAL TO A LEVEL BELOW THAT
WHICH SUCH LENDER COULD HAVE ACHIEVED (TAKING INTO CONSIDERATION SUCH LENDER'S
POLICIES WITH RESPECT TO CAPITAL ADEQUACY IMMEDIATELY BEFORE SUCH ADOPTION,
IMPLEMENTATION, CHANGE OR COMPLIANCE) BUT FOR SUCH ADOPTION, IMPLEMENTATION,
CHANGE OR COMPLIANCE AS A CONSEQUENCE OF ITS COMMITMENT TO MAKE LOANS HEREUNDER
BY ANY AMOUNT REASONABLY DEEMED BY SUCH LENDER TO BE MATERIAL, THE BORROWER
SHALL PAY TO SUCH LENDER AS AN ADDITIONAL FEE FROM TIME TO TIME ON DEMAND SUCH
AMOUNT AS SUCH LENDER SHALL HAVE REASONABLY DETERMINED TO BE NECESSARY TO
COMPENSATE IT FOR SUCH REDUCTION.
THE DETERMINATION BY SUCH