AFFECTED BY ANY CIRCUMSTANCE, INCLUDING
(I) ANY SET-OFF, COUNTERCLAIM, RECOUPMENT, DEFENSE OR OTHER RIGHT WHICH SUCH
LENDER MAY HAVE AGAINST THE FACING AGENT, THE BORROWER OR ANY OTHER PERSON FOR
ANY REASON WHATSOEVER; (II) THE OCCURRENCE OR CONTINUANCE OF AN EVENT OF DEFAULT
OR A MATERIAL ADVERSE EFFECT; OR (III) ANY OTHER CIRCUMSTANCE, HAPPENING OR
EVENT WHATSOEVER, WHETHER OR NOT SIMILAR TO ANY OF THE FOREGOING; PROVIDED,
HOWEVER, THAT EACH LENDER'S OBLIGATION TO MAKE REVOLVING LOANS UNDER
SECTION 2.9(C) IS SUBJECT TO THE CONDITIONS SET FORTH IN SECTION 5.2.
64
E.
FEES FOR LETTERS OF CREDIT.
(A)
FACING AGENT FEES.
THE BORROWER AGREES TO
PAY THE FOLLOWING AMOUNT TO THE APPLICABLE FACING AGENT WITH RESPECT TO THE
LETTERS OF CREDIT ISSUED BY IT FOR THE ACCOUNT OF THE BORROWER:
(I)
WITH RESPECT TO DRAWINGS MADE UNDER ANY
LETTER OF CREDIT, INTEREST, PAYABLE ON DEMAND, ON THE AMOUNT PAID BY SUCH FACING
AGENT IN RESPECT OF EACH SUCH DRAWING FROM THE DATE A DRAWING IS HONORED UP TO
(BUT NOT INCLUDING) THE DATE SUCH AMOUNT IS REIMBURSED BY THE BORROWER
(INCLUDING ANY SUCH REIMBURSEMENT OUT OF THE PROCEEDS OF REVOLVING LOANS, AS THE
CASE MAY BE, PURSUANT TO SECTION 2.9(C)) AT A RATE WHICH IS AT ALL TIMES EQUAL
TO 2% PER ANNUM IN EXCESS OF THE BASE RATE;
(II)
WITH RESPECT TO THE ISSUANCE OR AMENDMENT
OF EACH LETTER OF CREDIT AND EACH PAYMENT MADE THEREUNDER, DOCUMENTARY AND
PROCESSING CHARGES IN ACCORDANCE WITH THE APPLICABLE FACING AGENT'S STANDARD
SCHEDULE FOR SUCH CHARGES IN EFFECT AT THE TIME OF SUCH ISSUANCE, AMENDMENT,
TRANSFER OR PAYMENT, AS THE CASE MAY BE; AND
(III)
A FACING FEE AS AGREED FROM TIME TO TIME BY
THE BORROWER AND THE APPLICABLE FACING AGENT FOR THE APPLICABLE LETTER OF CREDIT
OR, WITH RESPECT TO DB AS FACING AGENT WITH RESPECT TO THAT PORTION OF THE
OUTSTANDING LC OBLIGATIONS ATTRIBUTABLE TO THE FIFTH AMENDMENT EXISTING LETTERS
OF CREDIT, A FACING FEE AS MAY BE SEPARATELY AGREED IN WRITING BETWEEN THE
BORROWER AND DB, WHICH FEE, UNLESS OTHERWISE AGREED, SHALL BE PAYABLE WITH
RESPECT TO THE ASSIGNED DOLLAR VALUE OF THE MAXIMUM STATED AMOUNT UNDER SUCH
OUTSTANDING LETTERS OF CREDIT PAYABLE IN ARREARS ON EACH QUARTERLY PAYMENT DATE,
ON THE REVOLVER TERMINATION DATE AND THEREAFTER, ON DEMAND TOGETHER WITH
CUSTOMARY ISSUANCE AND PAYMENT CHARGES PAYABLE PURSUANT TO CLAUSE (B) ABOVE;
PROVIDED, HOWEVER, IF CALCULATION OF THE FACING FEE IN THE MANNER SET FORTH
ABOVE WOULD RESULT IN A FACING FEE OF LESS THAN $500 PER YEAR PER LETTER OF
CREDIT ISSUED BY ANY FACING AGENT, THE BORROWER SHALL BE OBLIGATED TO PAY SUCH
ADDITIONAL AMOUNT TO SUCH FACING AGENT SO AS TO PROVIDE FOR A MINIMUM FACING FEE
OF $500 PER YEAR PER LETTER OF CREDIT.
(B)
PARTICIPATING LENDER FEES.
THE BORROWER
AGREES TO PAY TO THE ADMINISTRATIVE AGENT FOR DISTRIBUTION TO EACH PARTICIPATING
REVOLVING LENDER IN RESPECT OF ALL LETTERS OF CREDIT OUTSTANDING SUCH REVOLVING
LENDER'S REVOLVING PRO RATA SHARE OF A COMMISSION EQUAL TO THE