RATE PAYABLE HEREUNDER BEEN (BUT FOR THE OPERATION OF THIS PARAGRAPH)
THE INTEREST RATE PAYABLE SINCE THE RESTATEMENT DATE AS OTHERWISE PROVIDED IN
THIS
12
AGREEMENT.
THEREAFTER, INTEREST HEREUNDER SHALL BE PAID AT THE RATE(S) OF
INTEREST AND IN THE MANNER PROVIDED IN SECTIONS 1.2(A) THROUGH (F), UNLESS AND
UNTIL THE RATE OF INTEREST AGAIN EXCEEDS THE MAXIMUM LAWFUL RATE, AND AT THAT
TIME THIS PARAGRAPH SHALL AGAIN APPLY.
IN NO EVENT SHALL THE TOTAL INTEREST
RECEIVED BY ANY LENDER PURSUANT TO THE TERMS HEREOF EXCEED THE AMOUNT THAT SUCH
LENDER COULD LAWFULLY HAVE RECEIVED HAD THE INTEREST DUE HEREUNDER BEEN
CALCULATED FOR THE FULL TERM HEREOF AT THE MAXIMUM LAWFUL RATE.
IF THE MAXIMUM
LAWFUL RATE IS CALCULATED PURSUANT TO THIS PARAGRAPH, SUCH INTEREST SHALL BE
CALCULATED AT A DAILY RATE EQUAL TO THE MAXIMUM LAWFUL RATE DIVIDED BY THE
NUMBER OF DAYS IN THE YEAR IN WHICH SUCH CALCULATION IS MADE.
IF,
NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 1.2(G), A COURT OF COMPETENT
JURISDICTION SHALL DETERMINE BY A FINAL, NON-APPEALABLE ORDER THAT A LENDER HAS
RECEIVED INTEREST HEREUNDER IN EXCESS OF THE MAXIMUM LAWFUL RATE, AGENT SHALL,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROMPTLY APPLY SUCH EXCESS AS
SPECIFIED IN SECTION 1.5(E) AND THEREAFTER SHALL REFUND ANY EXCESS TO BORROWER
OR AS SUCH COURT OF COMPETENT JURISDICTION MAY OTHERWISE ORDER.
1.3
FEES.
(A)
FEE LETTER.
BORROWER SHALL PAY TO SUNTRUST, INDIVIDUALLY, THE
FEES SPECIFIED IN THAT CERTAIN FEE LETTER DATED AS OF FEBRUARY 20, 2009 AMONG
BORROWER, SUNTRUST ROBINSON HUMPHREY, INC. AND SUNTRUST (THE "SUNTRUST FEE
LETTER"), AT THE TIMES SPECIFIED FOR PAYMENT THEREIN.
(B)
UNUSED LINE FEE.
AS ADDITIONAL COMPENSATION FOR THE REVOLVING
LENDERS, BORROWER SHALL PAY TO AGENT, FOR THE RATABLE BENEFIT OF SUCH LENDERS,
IN ARREARS, ON THE FIRST BUSINESS DAY OF EACH FISCAL QUARTER PRIOR TO THE
COMMITMENT TERMINATION DATE AND ON THE COMMITMENT TERMINATION DATE, A FEE FOR
BORROWER'S NON-USE OF AVAILABLE FUNDS (THE "APPLICABLE UNUSED LINE FEE") IN AN
AMOUNT EQUAL TO THE APPLICABLE UNUSED LINE FEE MARGIN PER ANNUM AS DETERMINED
BELOW MULTIPLIED BY THE DIFFERENCE BETWEEN (X) THE MAXIMUM AMOUNT (AS IT MAY BE
REDUCED FROM TIME TO TIME) AND (Y) THE AVERAGE FOR THE PERIOD OF THE DAILY
CLOSING BALANCES OF THE REVOLVING LOAN AND THE SWING LINE LOAN OUTSTANDING
DURING THE PERIOD FOR WHICH SUCH APPLICABLE UNUSED LINE FEE IS DUE.
AS OF THE
RESTATEMENT DATE, THE APPLICABLE UNUSED LINE FEE MARGIN IS 0.50%.
THE
APPLICABLE UNUSED LINE FEE MARGIN SHALL BE ADJUSTED (UP OR DOWN) PROSPECTIVELY
ON A QUARTERLY BASIS AS DETERMINED BY HOLDINGS' AND ITS SUBSIDIARIES'
CONSOLIDATED FINANCIAL PERFORMANCE, COMMENCING WITH THE FIRST DAY OF THE FIRST
CALENDAR MONTH THAT OCCURS MORE THAN ONE (1) DAY AFTER DELIVERY OF BORROWER'S
QUARTERLY FINANCIAL STATEMENTS TO AGENT FOR THE FISCAL QUARTER ENDING JUNE 30,
2009.
ADJUSTMENTS IN APPLICABLE UNUSED LINE FEE MARGIN WILL BE DETERMINED BY
REFERENCE TO THE FOLLOWING GRIDS:
If Leverage Ratio is:
Level of
Applicable Unused Line Fee Margins:
< 2.0
Level I