BENEFIT OF
LENDERS, FEES FOR EACH LETTER OF CREDIT FOR THE PERIOD FROM AND EXCLUDING THE
DATE OF ISSUANCE OF SAME TO AND INCLUDING THE DATE OF EXPIRATION OR TERMINATION,
EQUAL TO THE AVERAGE DAILY FACE AMOUNT OF EACH OUTSTANDING LETTER OF CREDIT
MULTIPLIED BY THREE AND ONE-HALF OF ONE PERCENT (3.50%) PER ANNUM, SUCH FEES TO
BE CALCULATED ON THE BASIS OF A 360-DAY YEAR FOR THE ACTUAL NUMBER OF DAYS
ELAPSED AND TO BE PAYABLE QUARTERLY IN ARREARS ON THE FIRST DAY OF EACH QUARTER
AND ON THE LAST DAY OF THE TERM, AND (Y) TO THE ISSUER, A FRONTING FEE OF ONE
QUARTER OF ONE PERCENT (0.25%) PER ANNUM, TOGETHER WITH ANY AND ALL
ADMINISTRATIVE, ISSUANCE, AMENDMENT, PAYMENT AND NEGOTIATION CHARGES WITH
RESPECT TO LETTERS OF CREDIT AND ALL FEES AND EXPENSES AS AGREED UPON BY THE
ISSUER AND THE BORROWING AGENT IN CONNECTION WITH ANY LETTER OF CREDIT,
INCLUDING IN CONNECTION WITH THE OPENING, AMENDMENT OR RENEWAL OF ANY SUCH
LETTER OF CREDIT AND ANY ACCEPTANCES CREATED THEREUNDER AND SHALL REIMBURSE
AGENT FOR ANY AND ALL FEES AND EXPENSES, IF ANY, PAID BY AGENT TO THE ISSUER
(ALL OF THE FOREGOING FEES, THE "LETTER OF CREDIT FEES").
ALL SUCH CHARGES
SHALL BE DEEMED EARNED IN FULL ON THE DATE WHEN THE SAME ARE DUE AND PAYABLE
HEREUNDER AND SHALL NOT BE SUBJECT TO REBATE OR PRO-RATION UPON THE TERMINATION
OF THIS AGREEMENT FOR ANY REASON.
ANY SUCH CHARGE IN EFFECT AT THE TIME OF A
PARTICULAR TRANSACTION SHALL BE THE CHARGE FOR THAT TRANSACTION, NOTWITHSTANDING
ANY SUBSEQUENT CHANGE IN THE ISSUER'S PREVAILING CHARGES FOR THAT TYPE OF
TRANSACTION.
ALL LETTER OF CREDIT FEES PAYABLE HEREUNDER SHALL BE DEEMED EARNED
IN FULL ON THE DATE WHEN THE SAME ARE DUE AND PAYABLE HEREUNDER AND SHALL NOT BE
SUBJECT TO REBATE OR PRO-RATION
39
UPON THE TERMINATION OF THIS AGREEMENT FOR ANY REASON.
UPON AND AFTER THE
OCCURRENCE OF AN EVENT OF DEFAULT, AND DURING THE CONTINUATION THEREOF, AT THE
OPTION OF AGENT OR AT THE DIRECTION OF REQUIRED LENDERS, THE LETTER OF CREDIT
FEES DESCRIBED IN CLAUSE (X) OF THIS SECTION 3.2(A) SHALL BE INCREASED BY AN
ADDITIONAL TWO PERCENT (2.0%) PER ANNUM.
(B)
UPON DEMAND BY AGENT AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT
AND DURING THE CONTINUANCE THEREOF, BORROWERS WILL CAUSE CASH TO BE DEPOSITED
AND MAINTAINED IN AN ACCOUNT WITH AGENT, AS CASH COLLATERAL, IN AN AMOUNT EQUAL
TO ONE HUNDRED AND FIVE PERCENT (105%) OF THE MAXIMUM UNDRAWN AMOUNT OF ALL
OUTSTANDING LETTERS OF CREDIT, AND EACH BORROWER HEREBY IRREVOCABLY AUTHORIZES
AGENT, IN ITS DISCRETION, ON SUCH BORROWER'S BEHALF AND IN SUCH BORROWER'S NAME,
TO OPEN SUCH AN ACCOUNT AND TO MAKE AND MAINTAIN DEPOSITS THEREIN, OR IN AN
ACCOUNT OPENED BY SUCH BORROWER, IN THE AMOUNTS REQUIRED TO BE MADE BY SUCH
BORROWER, OUT OF THE PROCEEDS OF RECEIVABLES OR OTHER COLLATERAL OR OUT OF ANY
OTHER FUNDS OF SUCH BORROWER COMING INTO ANY LENDER'S POSSESSION AT ANY TIME.
AGENT