EVENT WITHIN ONE BUSINESS DAY, CAUSE
SUCH PAYMENT TO BE DEPOSITED INTO A CONCENTRATION ACCOUNT.
CONCENTRATION
ACCOUNTS SHALL BE MAINTAINED IN A BORROWER'S NAME, BUT FOR AGENT'S BENEFIT, AND
THE APPLICABLE BORROWER, CLEARING BANK AND AGENT SHALL HAVE ENTERED INTO A
TRI-PARTY AGREEMENT, IN FORM AND SUBSTANCE SATISFACTORY TO AGENT (A "BLOCKED
ACCOUNT AGREEMENT") PURSUANT TO WHICH, AMONG OTHER THINGS, CLEARING BANK SHALL
AGREE TO REMIT ALL COLLECTED FUNDS IN ITS CONCENTRATION ACCOUNT DIRECTLY TO
AGENT FOR APPLICATION TO THE OBLIGATIONS AS PRESCRIBED BELOW.
ALL SUCH
COLLECTED FUNDS SHALL BE APPLIED BY AGENT IN PAYMENT OF OUTSTANDING WORKING
CAPITAL FACILITY LOANS (IN ACCORDANCE WITH EACH LENDER'S WORKING CAPITAL
FACILITY PERCENTAGE OF EACH SUCH PAYMENT); PROVIDED THAT IF AN EVENT OF DEFAULT
HAS OCCURRED AND IS CONTINUING, SUCH FUNDS SHALL BE APPLIED IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 7.4.
THE FOREGOING SHALL BE IN ADDITION TO, AND NOT
IN LIMITATION OF, AGENT'S RIGHTS TO COLLECT ACCOUNTS DIRECTLY AFTER AN EVENT OF
DEFAULT HAS OCCURRED AND WHILE IT IS CONTINUING, AS PROVIDED IN THE SECURITY
AGREEMENT.
WITHOUT LIMITATION OF THE FOREGOING, WITHIN FIFTEEN (15) BUSINESS
DAYS AFTER THE DATE HEREOF, BORROWERS WILL DELIVER TO AGENT REPLACEMENT BLOCKED
ACCOUNT AGREEMENTS WITH RESPECT TO THE EXISTING BLOCKED ACCOUNT AGREEMENTS WITH
BANK OF AMERICA, N.A., AS CLEARING BANK, SIGNED BY BORROWERS AND BANK OF
AMERICA, N.A. AND APPLICABLE TO EACH CONCENTRATION ACCOUNT MAINTAINED BY
BORROWERS WITH BANK OF AMERICA, N.A.
SECTION 3.3.4
TERMINATION FEE.
(A)
UPON ANY CANCELLATION OF THE COMMITMENTS BY THE BORROWERS SUBSEQUENT
TO THE CLOSING DATE PURSUANT TO SECTION 3.3.6, THE BORROWERS SHALL PAY TO THE
LENDERS PRIOR TO OR CONCURRENTLY WITH SUCH TERMINATION A TERMINATION FEE IN AN
AMOUNT EQUAL TO THE AMOUNT OF THE WORKING CAPITAL FACILITY COMMITMENT AT THE
TIME OF SUCH EARLY TERMINATION TIMES (I) TWO PERCENT (2%) IF SUCH TERMINATION
OCCURS ON OR PRIOR TO THE FIRST (1ST) ANNIVERSARY OF THE CLOSING DATE, (II) ONE
PERCENT (1%) IF SUCH TERMINATION OCCURS AFTER THE FIRST (1ST) ANNIVERSARY OF THE
CLOSING DATE BUT ON OR PRIOR TO THE SECOND (2ND) ANNIVERSARY OF THE CLOSING DATE
AND (III) ONE-HALF OF ONE PERCENT (1⁄2%) IF SUCH TERMINATION OCCURS AFTER THE
SECOND (2ND) ANNIVERSARY OF THE CLOSING DATE.
NOTWITHSTANDING THE FOREGOING, IF
THE COMMITMENTS ARE CANCELLED IN CONNECTION WITH BORROWERS' PREPAYMENT IN FULL
OF THE OBLIGATIONS FROM THE PROCEEDS OF A REPLACEMENT FINANCING PROVIDED TO
BORROWERS BY UPSC OR BY A GROUP OF LENDERS FOR WHOM UPSC ACTS AS AGENT, THE
PORTION OF THE TERMINATION FEE THAT WOULD OTHERWISE BE PAYABLE TO ANY LENDER
WHICH PARTICIPATES IN SUCH REPLACEMENT FINANCING WILL NOT BE PAYABLE, IT BEING
UNDERSTOOD, HOWEVER, THAT EACH LENDER WHICH IS NOT PARTICIPATING IN SUCH
REPLACEMENT FINANCING WILL BE ENTITLED TO RECEIVE THE PORTION OF THE TERMINATION
FEE PAYABLE TO SUCH LENDER IN SUCH EVENT.
(B)
ANY TERMINATION FEES SHALL BE PAID BY THE BORROWERS TO THE LENDERS
AS LIQUIDATED DAMAGES FOR THE LOSS OF THE BARGAIN AND SHALL NOT CONSTITUTE A
PENALTY.
27
SECTION 3.3.5
WORKING CAPITAL