DETERMINED AS PROVIDED BELOW (ON A PER ANNUM BASIS) ON THE DAILY
OUTSTANDING BALANCE OF LETTER OF CREDIT ACCOMMODATIONS FOR THE IMMEDIATELY
PRECEDING MONTH (OR PART THEREOF), PAYABLE IN ARREARS AS OF THE FIRST DAY OF
EACH SUCCEEDING MONTH.
SUCH PERCENTAGES SHALL BE INCREASED OR DECREASED, AS THE
CASE MAY BE, TO THE APPLICABLE PERCENTAGE (ON A PER ANNUM BASIS) SET FORTH BELOW
BASED ON THE MONTHLY AVERAGE EXCESS AVAILABILITY FOR IMMEDIATELY PRECEDING
MONTH.
Tier
Monthly Average
Excess Availability
LC Fee Rate
1
Greater than $40,000,000
2.50
%
2
Greater than or equal to $20,000,000 and less than or equal to $40,000,000
2.75
%
3
Less than $20,000,000
3.00
%
provided, that, (i) the applicable percentage shall be calculated and
established on the first day of each month and shall remain in effect until
adjusted thereafter at the beginning of the next month
34
AND (II)
THE APPLICABLE PERCENTAGE FROM AND INCLUDING THE DATE HEREOF THROUGH
NOVEMBER 30, 2008 SHALL BE THE AMOUNT FOR TIER 1 SET FORTH ABOVE, AND
(III) AGENT MAY, AND UPON THE WRITTEN DIRECTION OF REQUIRED LENDERS SHALL,
REQUIRE BORROWERS TO PAY TO AGENT FOR THE BENEFIT OF LENDERS BASED ON THEIR
RESPECTIVE PRO RATA SHARES SUCH LETTER OF CREDIT FEE, AT A RATE EQUAL TO TWO
(2%) PERCENT GREATER THAN THE HIGHEST RATE ABOVE ON SUCH DAILY OUTSTANDING
BALANCE FOR: (I) THE PERIOD FROM AND AFTER THE DATE OF TERMINATION HEREOF UNTIL
AGENT AND LENDERS HAVE RECEIVED FULL AND FINAL PAYMENT OF ALL OBLIGATIONS
(NOTWITHSTANDING ENTRY OF A JUDGMENT AGAINST SUCH BORROWER) AND (II) THE PERIOD
FROM AND AFTER THE DATE OF THE OCCURRENCE OF AN EVENT OF DEFAULT FOR SO LONG AS
SUCH EVENT OF DEFAULT IS CONTINUING.
SUCH LETTER OF CREDIT FEE SHALL BE
CALCULATED ON THE BASIS OF A THREE HUNDRED SIXTY (360) DAY YEAR AND ACTUAL DAYS
ELAPSED AND THE OBLIGATION OF BORROWERS TO PAY SUCH FEE SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
(C)
SUCH BORROWER SHALL GIVE AGENT TWO (2) BUSINESS DAYS' PRIOR WRITTEN
NOTICE OF SUCH BORROWER'S REQUEST FOR THE ISSUANCE OF A LETTER OF CREDIT
ACCOMMODATION.
SUCH NOTICE SHALL BE IRREVOCABLE AND SHALL SPECIFY THE ORIGINAL
FACE AMOUNT OF THE LETTER OF CREDIT ACCOMMODATION REQUESTED, THE EFFECTIVE DATE
(WHICH DATE SHALL BE A BUSINESS DAY AND IN NO EVENT SHALL BE A DATE LESS THAN
TEN (10) DAYS PRIOR TO THE END OF THE THEN CURRENT TERM OF THIS AGREEMENT) OF
ISSUANCE OF SUCH REQUESTED LETTER OF CREDIT ACCOMMODATION, WHETHER SUCH LETTER
OF CREDIT ACCOMMODATIONS MAY BE DRAWN IN A SINGLE OR IN PARTIAL DRAWS, THE DATE
ON WHICH SUCH REQUESTED LETTER OF CREDIT ACCOMMODATION IS TO EXPIRE (WHICH DATE
SHALL BE A BUSINESS DAY), THE PURPOSE FOR WHICH SUCH LETTER OF CREDIT
ACCOMMODATION IS TO BE ISSUED, AND THE BENEFICIARY OF THE REQUESTED LETTER OF
CREDIT ACCOMMODATION.
SUCH BORROWER SHALL ATTACH TO SUCH NOTICE THE PROPOSED
TERMS OF THE LETTER OF CREDIT ACCOMMODATION.
(D)
IN ADDITION TO BEING SUBJECT TO THE SATISFACTION OF THE APPLICABLE