LETTER OF CREDIT
OR, WITH RESPECT TO DB AS FACING AGENT, A FACING FEE EQUAL TO 1/8TH OF 1% PER
ANNUM OF OUTSTANDING LC OBLIGATIONS AND 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.
(II)
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 THEN APPLICABLE
EUROCURRENCY MARGIN FOR REVOLVING LOANS PER ANNUM WITH RESPECT TO THE MAXIMUM
STATED AMOUNT UNDER SUCH OUTSTANDING LETTERS OF CREDIT (THE "LC COMMISSION"),
PAYABLE IN ARREARS ON EACH QUARTERLY PAYMENT DATE, ON THE REVOLVER TERMINATION
DATE AND THEREAFTER, ON DEMAND.
THE LC COMMISSION SHALL BE COMPUTED FROM THE
60
FIRST DAY OF ISSUANCE OF EACH LETTER OF CREDIT AND ON THE BASIS OF THE ACTUAL
NUMBER OF DAYS ELAPSED OVER A YEAR OF 360 DAYS.
Promptly upon receipt by a Facing Agent or the Administrative Agent of any
amount described in clause (i)(A) or (ii) of this Section 2.9(e), the applicable
Facing Agent or the Administrative Agent shall distribute to each Revolving
Lender its Pro Rata Share, as the case may be, of such amount as long as, in the
case of amounts described in clause (i)(A), such Lender has reimbursed the
applicable Facing Agent in accordance with Section 2.9(c).
Amounts payable
under clause (i)(B) and (C) of this Section 2.9(e) shall be paid directly to the
applicable Facing Agent.
(F)
LC OBLIGATIONS UNCONDITIONAL.
THE
OBLIGATION OF THE BORROWER TO REIMBURSE A FACING AGENT (OR ANY LENDER THAT HAS
PURCHASED A PARTICIPATION FROM OR MADE A LOAN TO ENABLE THE BORROWER TO
REIMBURSE THE APPLICABLE FACING AGENT) FOR DRAWINGS MADE UNDER ANY LETTER OF
CREDIT ISSUED BY IT AND THE OBLIGATIONS OF EACH LENDER TO PURCHASE
PARTICIPATIONS PURSUANT TO SECTION 2.9(D) AS A RESULT OF SUCH A DRAWING SHALL BE
UNCONDITIONAL AND IRREVOCABLE AND SHALL BE PAID STRICTLY IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT UNDER ALL CIRCUMSTANCES, INCLUDING, WITHOUT LIMITATION,
ANY OF THE FOLLOWING CIRCUMSTANCES:
(I)
ANY LACK OF VALIDITY OR ENFORCEABILITY
OF SUCH LETTER OF CREDIT;
(II)
THE EXISTENCE OF ANY CLAIM, SETOFF,
DEFENSE OR OTHER RIGHT WHICH THE BORROWER OR ANY OF ITS AFFILIATES MAY HAVE AT
ANY TIME AGAINST A BENEFICIARY OR ANY TRANSFEREE OF