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(F), 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(D) AND THEREAFTER SHALL REFUND ANY EXCESS TO BORROWERS
OR AS SUCH COURT OF COMPETENT JURISDICTION MAY OTHERWISE ORDER.
1.3.
FEES.
(A)
FEE LETTER.
BORROWERS SHALL PAY TO GE CAPITAL, INDIVIDUALLY, THE
FEES SPECIFIED IN THAT CERTAIN FEE LETTER, DATED AS OF NOVEMBER 5, 2004 AMONG
BORROWERS AND GE CAPITAL (THE "GE CAPITAL FEE LETTER"), AT THE TIMES SPECIFIED
FOR PAYMENT THEREIN.
(B)
UNUSED LINE FEE.
AS ADDITIONAL COMPENSATION FOR THE REVOLVING
LENDERS, BORROWERS SHALL PAY TO AGENT, FOR THE RATABLE BENEFIT OF SUCH LENDERS,
IN ARREARS, ON THE FIRST BUSINESS DAY OF EACH CALENDAR QUARTER PRIOR TO THE
COMMITMENT TERMINATION DATE, COMMENCING WITH JANUARY, 2005 AND ON THE COMMITMENT
TERMINATION DATE, A FEE FOR BORROWERS' NON-USE OF AVAILABLE FUNDS IN AN AMOUNT
EQUAL TO ONE-HALF OF ONE PERCENT (0.50%) PER ANNUM 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 (INCLUDING, WITHOUT DUPLICATION, SWING LINE LOAN AND ALTERNATIVE CURRENCY
REVOLVING LOANS) OUTSTANDING DURING THE PERIOD FOR WHICH SUCH FEE IS DUE.
(C)
LETTER OF CREDIT FEE.
BORROWERS AGREE TO PAY TO AGENT FOR THE
BENEFIT OF REVOLVING LENDERS, AS COMPENSATION TO SUCH REVOLVING LENDERS FOR
LETTER OF CREDIT OBLIGATIONS INCURRED HEREUNDER, (I) WITHOUT DUPLICATION OF
REASONABLE, DOCUMENTED, OUT-OF-POCKET COSTS AND
14
EXPENSES OTHERWISE PAYABLE TO AGENT OR LENDERS HEREUNDER, ALL COSTS AND EXPENSES
INCURRED BY AGENT OR ANY LENDER ON ACCOUNT OF SUCH LETTER OF CREDIT OBLIGATIONS,
AND (II) FOR EACH CALENDAR QUARTER DURING WHICH ANY LETTER OF CREDIT OBLIGATION
SHALL REMAIN OUTSTANDING, COMMENCING WITH THE FIRST CALENDAR QUARTER FOLLOWING
THE CLOSING DATE, A FEE (THE "LETTER OF CREDIT FEE") IN AN AMOUNT EQUAL TO THE
APPLICABLE L/C MARGIN FROM TIME TO TIME IN EFFECT MULTIPLIED BY THE MAXIMUM
AMOUNT AVAILABLE FROM TIME TO TIME TO BE DRAWN UNDER THE APPLICABLE LETTER OF
CREDIT.
SUCH FEE SHALL BE PAID TO AGENT FOR THE BENEFIT OF THE REVOLVING
LENDERS IN ARREARS, ON THE FIRST BUSINESS DAY OF EACH CALENDAR QUARTER AND ON
THE COMMITMENT TERMINATION DATE.
IN