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 2.2(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 2.5(E) AND THEREAFTER SHALL REFUND ANY EXCESS TO BORROWER
OR AS SUCH COURT OF COMPETENT JURISDICTION MAY OTHERWISE ORDER.
2.3
Fees.
(A)
FEE LETTER.
BORROWER SHALL PAY TO BDCF, INDIVIDUALLY, THE FEES
SPECIFIED IN THAT CERTAIN FEE LETTER DATED AS OF JANUARY 19, 2007 AMONG BORROWER
AND BDCF (THE "BDCF FEE LETTER"), AT THE TIMES SPECIFIED FOR PAYMENT THEREIN.
(B)
UNUSED LINE FEE.
AS ADDITIONAL COMPENSATION FOR THE LENDERS,
BORROWER SHALL PAY TO AGENT, FOR THE RATABLE BENEFIT OF SUCH LENDERS, IN
ARREARS, ON THE FIRST BUSINESS DAY OF EACH CALENDAR MONTH PRIOR TO SEPTEMBER 30,
2008 AND ON SEPTEMBER 30, 2008, A FEE FOR BORROWER'S NON-USE OF AVAILABLE FUNDS
IN AN AMOUNT EQUAL TO THE APPLICABLE UNUSED LINE FEE MARGIN PER ANNUM MULTIPLIED
BY THE OUTSTANDING TERM LOAN COMMITMENT AS OF THE LAST BUSINESS DAY OF THE
IMMEDIATELY PRECEDING CALENDAR MONTH.
(C)
[INTENTIONALLY OMITTED].
(D)
LIBOR BREAKAGE COSTS.
UPON (I) ANY DEFAULT BY BORROWER IN MAKING
ANY BORROWING OF, CONVERSION INTO OR CONTINUATION OF, ANY LIBOR LOAN FOLLOWING
BORROWER'S DELIVERY TO AGENT OF ANY LIBOR LOAN REQUEST IN RESPECT THEREOF OR
(II) ANY PAYMENT OF A LIBOR LOAN ON ANY DAY THAT IS NOT THE LAST DAY OF THE
LIBOR PERIOD APPLICABLE THERETO (REGARDLESS OF THE SOURCE OF SUCH PREPAYMENT AND
WHETHER VOLUNTARY, BY ACCELERATION OR OTHERWISE), BORROWER SHALL PAY AGENT, FOR
THE BENEFIT OF ALL LENDERS THAT FUNDED OR WERE PREPARED TO FUND ANY SUCH LIBOR
LOAN, LIBOR BREAKAGE COSTS, IF APPLICABLE.
(E)
EXPENSES AND ATTORNEYS' FEES.
BORROWER AGREES TO PAY ALL
REASONABLE, OUT-OF-POCKET FEES, CHARGES, COSTS AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES AND EXPENSES) INCURRED BY AGENT IN CONNECTION WITH
ANY MATTERS CONTEMPLATED BY OR ARISING OUT OF THE LOAN DOCUMENTS, IN CONNECTION
WITH THE EXAMINATION, REVIEW, DUE DILIGENCE INVESTIGATION, DOCUMENTATION,
NEGOTIATION AND CLOSING OF THE TRANSACTIONS CONTEMPLATED HEREIN AND IN
CONNECTION WITH THE CONTINUED ADMINISTRATION OF THE
40
LOAN DOCUMENTS INCLUDING ANY AMENDMENTS, MODIFICATIONS, CONSENTS AND WAIVERS.
BORROWER AGREES TO PROMPTLY PAY ALL REASONABLE, OUT-OF-POCKET FEES, CHARGES,
COSTS AND EXPENSES (INCLUDING REASONABLE FEES, CHARGES, COSTS AND EXPENSES OF
ATTORNEYS, AUDITORS, APPRAISERS, CONSULTANTS AND ADVISORS) INCURRED BY AGENT IN
CONNECTION WITH ANY AMENDMENT, WAIVER, CONSENT WITH RESPECT TO THE LOAN
DOCUMENTS, EVENT OF DEFAULT, WORK-OUT OR ACTION TO ENFORCE ANY LOAN DOCUMENT OR
TO COLLECT ANY