AGENT AND MERRILL LYNCH CREDIT
CORPORATION).
SECTION 2.9
FEES.
IN CONSIDERATION OF THE AGREEMENT BY LENDERS TO
EXTEND THE LOAN TO BORROWER IN ACCORDANCE WITH AND SUBJECT TO THE TERMS HEREOF,
BORROWER HAS HERETOFORE PAID THE FACILITY FEE TO ADMINISTRATIVE AGENT FOR THE
BENEFIT OF LENDERS. BORROWER ACKNOWLEDGES AND AGREES THAT THE FACILITY FEE HAS
BEEN FULLY EARNED BY LENDERS, AND THAT IT WILL NOT UNDER ANY CIRCUMSTANCES BE
REFUNDABLE.
SECTION 2.10
VOLUNTARY PREPAYMENT.
(A)
ON OR AFTER THE DATE THAT IS TWO (2) YEARS AFTER THE CLOSING DATE,
BORROWER MAY PREPAY IN FULL OR IN PART THE OUTSTANDING PRINCIPAL AMOUNT OF THE
LOAN ON ANY PAYMENT DATE AFTER GIVING AT LEAST THREE (3) BUSINESS DAYS PRIOR
NOTICE OF SUCH PREPAYMENT AND PAYMENT TO THE LENDER OF ACCRUED AND UNPAID
INTEREST THEREON AND THE PREPAYMENT PREMIUM REFERRED TO BELOW, IF ANY.
ANY
NOTICE OF PREPAYMENT HEREUNDER SHALL BE IRREVOCABLE.
(B)
THE LENDERS SHALL APPLY PAYMENTS RECEIVED PURSUANT TO THIS
SECTION 2.10 IN ACCORDANCE WITH SECTION 2.5(C) ABOVE.
(C)
PREPAYMENTS MADE UNDER THIS SECTION 2.10 SHALL INCLUDE A
"PREPAYMENT PREMIUM" AS FOLLOWS:
(I)
IF MADE ON OR AFTER THE SECOND ANNIVERSARY BUT ON OR PRIOR TO THE
THIRD ANNIVERSARY OF THE CLOSING DATE, ONE AND ONE-HALF PERCENT (1.5%) OF THE
AGGREGATE PRINCIPAL AMOUNT PREPAID; PROVIDED, THAT BORROWER MAY MAKE A ONE-TIME
PREPAYMENT IN AN AMOUNT UP TO $10,000,000 IN PRINCIPAL WITHOUT A PREPAYMENT
PREMIUM ON EITHER OR EACH OF (A) THE SECOND ANNIVERSARY DATE OF THE CLOSING
DATE, OR (B) THE THIRD ANNIVERSARY DATE OF THE CLOSING DATE;
(II)
IF MADE AFTER THE THIRD ANNIVERSARY OF THE CLOSING DATE, BUT ON
OR BEFORE THE FOURTH ANNIVERSARY OF THE CLOSING DATE, ONE PERCENT (1%) OF THE
AGGREGATE PRINCIPAL AMOUNT PREPAID; AND
(III)
IF MADE AFTER THE FOURTH ANNIVERSARY OF THE CLOSING DATE,
ONE-HALF OF ONE PERCENT (0.5%) OF THE AGGREGATE PRINCIPAL AMOUNT PREPAID.
SECTION 2.11
SHARING OF PAYMENTS, ETC.
BORROWER AGREES THAT, IN
ADDITION TO (AND WITHOUT LIMITATION OF) ANY RIGHT OF SET-OFF, BANKERS' LIEN OR
COUNTERCLAIM A LENDER MAY OTHERWISE HAVE, EACH LENDER SHALL BE ENTITLED, AT ITS
OPTION AFTER AN EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING TO OFFSET
BALANCES HELD BY IT FOR THE ACCOUNT OF BORROWER AT ANY OF ITS OFFICES AGAINST
ANY PRINCIPAL OF OR INTEREST ON ANY PORTION OF THE LOAN ATTRIBUTABLE TO SUCH
LENDER HEREUNDER OR ANY OTHER OBLIGATION OF BORROWER HEREUNDER WHICH IS NOT PAID
(REGARDLESS OF WHETHER SUCH BALANCES ARE THEN DUE TO BORROWER), IN WHICH CASE IT
SHALL PROMPTLY NOTIFY BORROWER AND ADMINISTRATIVE AGENT THEREOF, PROVIDED THAT
SUCH LENDER'S FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT THE VALIDITY
THEREOF.
IF A LENDER SHALL OBTAIN PAYMENT OF ANY PRINCIPAL OF OR INTEREST ON
ANY PORTION OF THE LOAN ATTRIBUTABLE TO IT UNDER THIS LOAN AGREEMENT OR OTHER
OBLIGATION THEN DUE
19
HEREUNDER TO SUCH LENDER, THROUGH THE EXERCISE OF ANY RIGHT OF SET-OFF OR LIEN
GRANTED UNDER SECTION 3.7(M) BELOW, BANKERS' LIEN, COUNTERCLAIM OR SIMILAR
RIGHT, OR OTHERWISE, IT SHALL