EXISTS, TO THE OBLIGATIONS IN SUCH
ORDER AND MANNER AS ADMINISTRATIVE AGENT AND THE LENDERS MAY ELECT.
(D)
BORROWER SHALL INDEMNIFY THE LENDERS AND ADMINISTRATIVE AGENT ON
DEMAND AGAINST ALL COSTS, EXPENSES, LIABILITIES AND LOSSES (INCLUDING FUNDING
LOSSES) INCURRED AS A RESULT OF OR IN CONNECTION WITH (A) ANY POSTPONEMENT OF
THE CLOSING DATE OCCURRING BECAUSE OF ONE OR MORE OF THE CONDITIONS PRECEDENT
SET FORTH IN ARTICLE II SHALL NOT HAVE BEEN SATISFIED OR WAIVED AS A RESULT OF
BORROWER'S FAILURE TO SATISFY SUCH CONDITION AND/OR (B) ANY PAYMENT OF PRINCIPAL
OF THE LOAN MADE ON A BUSINESS DAY WHICH IS NOT A PAYMENT DATE.
THE ABOVE
INDEMNITIES ARE SEPARATE AND INDEPENDENT OBLIGATIONS OF BORROWER AND APPLY
IRRESPECTIVE OF ANY INDULGENCE GRANTED BY THE LENDERS OR ADMINISTRATIVE AGENT.
(E)
IF ADMINISTRATIVE AGENT OR A LENDER DETERMINES, IN ITS SOLE
DISCRETION, THAT IT HAS RECEIVED A REFUND OF ANY INDEMNIFIED TAXES OR OTHER
TAXES AS TO WHICH IT HAS BEEN INDEMNIFIED BY THE BORROWER OR WITH RESPECT TO
WHICH THE BORROWER HAS PAID ADDITIONAL
16
AMOUNTS PURSUANT TO THIS SECTION 2.5, IT SHALL PAY OVER SUCH REFUND TO THE
BORROWER (BUT ONLY TO THE EXTENT OF INDEMNITY PAYMENTS MADE, OR ADDITIONAL
AMOUNTS PAID, BY THE BORROWER UNDER THIS SECTION 2.5 WITH RESPECT TO THE
INDEMNIFIED TAXES OR OTHER TAXES GIVING RISE TO SUCH REFUND), NET OF ALL
OUT-OF-POCKET EXPENSES OF ADMINISTRATIVE AGENT OR SUCH LENDER AND WITHOUT
INTEREST (OTHER THAN ANY INTEREST PAID BY THE RELEVANT GOVERNMENTAL AGENCY WITH
RESPECT TO SUCH REFUND); PROVIDED, THAT THE BORROWER, UPON THE REQUEST OF
ADMINISTRATIVE AGENT OR SUCH LENDER, AGREES TO REPAY THE AMOUNT PAID OVER TO THE
BORROWER TO ADMINISTRATIVE AGENT OR SUCH LENDER IN THE EVENT ADMINISTRATIVE
AGENT OR SUCH LENDER IS REQUIRED TO REPAY SUCH REFUND TO SUCH GOVERNMENTAL
AGENCY. THIS SECTION SHALL NOT BE CONSTRUED TO REQUIRE ADMINISTRATIVE AGENT OR
ANY LENDER TO MAKE AVAILABLE ITS TAX RETURNS (OR ANY OTHER INFORMATION RELATING
TO ITS TAXES WHICH IT DEEMS CONFIDENTIAL) TO THE BORROWER OR ANY OTHER PERSON.
(F)
IF THE BORROWER IS REQUIRED TO INDEMNIFY OR PAY ANY ADDITIONAL
AMOUNT TO ADMINISTRATIVE AGENT, ANY LENDER, OR TO ANY GOVERNMENTAL AGENCY FOR
THE ACCOUNT OF ANY LENDER, PURSUANT TO THIS SECTION 2.5, THEN THE BORROWER MAY,
AT ITS SOLE EXPENSE AND EFFORT, UPON NOTICE TO SUCH LENDER AND ADMINISTRATIVE
AGENT, REQUIRE SUCH LENDER TO ASSIGN AND DELEGATE, WITHOUT RECOURSE, ALL OF ITS
INTERESTS, RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT TO AN ELIGIBLE ASSIGNEE
THAT SHALL ASSUME SUCH OBLIGATIONS (WHICH ASSIGNEE MAY BE ANOTHER LENDER, IF A
LENDER ACCEPTS SUCH ASSIGNMENT) PROVIDED THAT SUCH ASSIGNMENT WILL RESULT IN A
REDUCTION IN SUCH PAYMENTS THEREAFTER.
SECTION 2.6
CONDITIONS OF LENDER'S INITIAL OBLIGATION.
THE CLOSING
DATE AND LENDERS' OBLIGATION TO MAKE ADVANCES UNDER THE LOAN ON AND AFTER THE
CLOSING DATE PURSUANT TO THIS SECTION 2.6 ARE SUBJECT TO THE PRIOR FULFILLMENT
OR WAIVER BY ADMINISTRATIVE AGENT AND EACH LENDER OF EACH OF THE FOLLOWING
CONDITIONS:
(A) ADMINISTRATIVE AGENT SHALL HAVE RECEIVED