Common use of Payments and Fees Clause in Contracts

Payments and Fees. 8.1 Interest Payments on the Revolving Credit Facility. -------------------------------------------------- Borrowers agree to pay to Bank interest on the principal balance of Base Rate Loans under the Revolving Credit Facility on the first day of each calendar month, commencing on the first day of the first calendar month following the date hereof, and on the expiration of the Contract Period. Borrowers agree to pay to Bank interest on the principal balance of LIBOR Rate Loans under the Revolving Credit Facility on the last day of each Rate Period, provided that, -------- ---- for any Rate Period with a duration of more than three months, interest will also be payable every ninetieth (90/th/) day after the commencement of such Rate Period. Bank may, at its option, establish a Reserve for interest accruing on any LIBOR Rate Loans with a Rate Period in excess of one month. 8.2 Principal Payments on the Revolving Credit Facility. Funds --------------------------------------------------- received by Bank in the Cash Collateral Account will be applied by Bank toward repayment of the outstanding principal balance of the Revolving Credit Facility or may be held as cash collateral by Bank. Provided that no Event of Default has occurred, such funds will be applied by Bank to repay the outstanding principal balance of the Revolving Credit Facility, with such payments to be applied first ----- to repay all Loans which are Base Rate Loans, and second to repay all Loans ------ which are LIBOR Rate Loans. To the extent that any sums are applied to repay LIBOR Rate Loans, they shall be applied to LIBOR Rate Loans in the chronological order in which the Rate Periods for such LIBOR Rate Loans expire. Upon the occurrence of an Event of Default, Bank may discontinue such arrangement and may apply such funds to costs, indemnities, fees, interest and principal, constituting Obligations in such order as Bank, in its discretion elects. Provided that no Event of Default has occurred, if all Advances under the Revolving Credit Facility and all other Obligations then due and payable (not including contingent obligations under undrawn Letters of Credit) have been paid in full, and thereafter funds are received by Bank in the Cash Collateral Account, Bank will permit the transfer of such funds to Borrowers' operating account maintained with Bank. Notwithstanding the foregoing, Borrowers agree to pay the outstanding principal balance of the Revolving Credit Facility, together with any accrued and unpaid interest thereon, and any other sums due pursuant to the terms hereof on the earlier to occur of (a) the expiration of the Contract Period, or (b) ON DEMAND after the occurrence of an Event of Default. If any Out-Of-Formula Advance arises or exists under the Revolving Credit Facility for any reason whatsoever, including without limitation inventory or accounts becoming ineligible or any new or increased Reserves, Borrowers agree to repay such Out-Of-Formula Advance immediately upon the earlier to occur of (i) notice or demand by Bank, or (ii) any Borrower has knowledge of such Out-of-Formula Advance.

Payments and Fees. 8.1 Interest Payments (a) From the Market Price agreed to in all Transactions, EPMI shall make payment for all Costs incurred with third parties in fulfilling itsEPMI’s obligations and the obligations of FRONTERA under such Transactions (but only to the extent that EPMI is made aware of the obligations of FRONTERA), and shall make payment for all Fuel Costs, and shall remit to FRONTERA, unless otherwise agreed, on or before the Revolving Credit Facility. -------------------------------------------------- Borrowers agree to pay to Bank interest on the principal balance of Base Rate Loans under the Revolving Credit Facility on the first tenth (10th) day of each calendar month, commencing a statement showing the Market Price (EPMI should only be required to provide the Market Price on the first day deal which are short term/back to back), the quantity of Available Energy, Capacity and Ancillary Services that were sold and scheduled for delivery in the first previous month and all Costs paid by EPMI pursuant to the foregoing provision for the preceding month together with a payment for all Net Proceeds as set forth belowreceived during the prior calendar month following month. The statement of payment shall set forth the date hereofMarket Price, the quantity of Available Energy, Capacity and Ancillary Services that were sold and scheduled for delivery in the previous month, and on the expiration of the Contract Period. Borrowers agree to pay to Bank interest on the principal balance of LIBOR Rate Loans under the Revolving Credit Facility on the last day of each Rate Period, provided that, -------- ---- for any Rate Period with a duration of more than three months, interest will also be payable every ninetieth (90/th/) day after the commencement of such Rate Period. Bank may, at its option, establish a Reserve for interest accruing on any LIBOR Rate Loans with a Rate Period Costs actually incurred in excess of one month. 8.2 Principal Payments on the Revolving Credit Facility. Funds --------------------------------------------------- received by Bank in the Cash Collateral Account will be applied by Bank toward repayment of the outstanding principal balance of the Revolving Credit Facility or may be held as cash collateral by Bank. Provided that no Event of Default has occurred, such funds will be applied by Bank to repay the outstanding principal balance of the Revolving Credit Facility, connection with such payments to be applied first ----- to repay all Loans which are Base Rate Loans, and second to repay all Loans ------ which are LIBOR Rate Loans. To the extent that any sums are applied to repay LIBOR Rate Loans, they shall be applied to LIBOR Rate Loans in the chronological order in which the Rate Periods for such LIBOR Rate Loans expire. Upon the occurrence of an Event of Default, Bank may discontinue such arrangement and may apply such funds to costs, indemnities, fees, interest and principal, constituting Obligations in such order as Bank, in its discretion elects. Provided that no Event of Default has occurred, if all Advances under the Revolving Credit Facility and all other Obligations then due and payable (not including contingent obligations under undrawn Letters of Credit) have been paid in full, and thereafter funds are received by Bank in the Cash Collateral Account, Bank will permit the transfer of such funds to Borrowers' operating account maintained with Bank. Notwithstanding the foregoing, Borrowers agree to pay the outstanding principal balance of the Revolving Credit Facilitysales, together with any accrued other relevant information. EPMI shall pay the Net Proceeds to FRONTERA and unpaid interest thereonshall remit the amount due byvia wire transfer, and less any other sums fee due EPMI, pursuant to the terms hereof instructions for such wire transfer provided by FRONTERA on the earlier 20th day of each calendar month (Payment Date) [less EPMI’s Costs actually incurred is this necessary given that Costs include those incurred by EPMI?]. It is expressly understood that Net Proceeds shall be reduced by Variable O&M Costs to occur determine Net Revenues from which any fees due EPMI shall be paid. Provided, however, that the payment of (a) Net Proceeds and the expiration statement of payment described above shall not include any charges or payments related to those certain Power Purchase Agreements between EPMI and Southern Companies, Inc. for the provision of 150 MW for the remainder of calendar year 2001.[Each of the Contract Periodtwo foregoing provisions are already covered by definition.][Also, or we should also add a provision that states that if the Net Proceeds are not enough to cover the Costs and EPMI fees, that FRONTERA will promptly send $] (b) ON DEMAND after EPMI shall be entitled to fees earned for performance under this Agreement and shall be entitled to deduct such earned fees from the occurrence of an Event of Default. If any Out-Of-Formula Advance arises or exists under the Revolving Credit Facility for any reason whatsoeverNet Proceeds, including without limitation inventory or accounts becoming ineligible or any new or increased Reserves, Borrowers agree to repay such Out-Of-Formula Advance immediately upon the earlier to occur of as follows: (i) notice an initial annual fee of Fifty Thousand ($50,000) Dollars per year. In calendar year 2001, the initial annual fee owed by FRONTERA to EPMI shall be prorated by dividing the initial annual fee by twelve (12) and multiplying it times the number of months during the year this Agreement was in effect. The amount so determined shall be paid to EPMI in [advance or demand arrears] in equal amounts at the end of each calendar quarter [we should probably pick specific payment dates to avoid the confusion that might arise because we are starting this Agreement on 3/15/01] beginning with the first calendar quarter following the Effective Date. The amount payable shall be paid by Bankthe twentieth (20th) day of the month following the end of the calendar quarter. For any part month, or the monthly amount shall be divided by thirty (30) and multiplied times the number of days in the part month in which this Agreement was in effect. (ii) In addition, EPMI shall be paid an incentive fee consisting of a percentage of the Net Revenue derived from the sale of Energy, Available Energy, Capacity and Ancillary Services by EPMI, payable as follows: On the first Thirty Million ($30,000,000) Dollars of Net Revenue earned during the calendar year, no amount of fee; On the amount of Net Revenue in any Borrower has knowledge calendar year in excess of Thirty Million ($30,000,000), up to Forty Million ($40,000,000) Dollars of Net Revenue, an amount equal to Five (5%) of such Outamount; On the amount of Net Revenue in any calendar year in excess of Forty Million ($40,000,000), an amount equal to Ten (10%) of such amount. (iii) No amount of incentive fee shall be paid to EPMI in any calendar year unless and until such time as the total amount of Net Revenue received by FRONTERA [FRONTERA has counterparty credit risk for its Transactions] exceeds Thirty Million ($30,000,000) Dollars. [Once Net Revenue exceeds Thirty Million ($30,000,000) Dollarsthat amount has been received, FRONTERA shall remit to EPMI the amount of the incentive fee earned under this Agreement. The amount of incentive fee earned shall be deducted by EPMI in accordance with Section 16(a) abovefrom the proceeds of all Transactions, after the determination of Net Revenue, in accordance with Section 16.]. (iv) For the calendar year 2001, the amounts set forth above shall be prorated to reflect the fact that this Agreement was in effect for only a portion of such year. The Net Revenue amount of Thirty Million ($30,000,000) shall be reduced to the amount of Eighteen Million Three Hundred Thousand ($18,300,000). The incentive fee amounts set forth in Sections 16(b)(2) (b) and (c) shall be reduced and applied as follows: On amounts of Net Revenue over $18,300,000, but less than $24,400,000, an amount equal to 5 %; On amounts of Net Revenue in excess of $24,400,000, an amount equal to 10%. (c) For purposes of determining the fees payable to EPMI under this Agreement, Net Revenues shall equal the total Market Price agreed to by third parties with EPMI from all Transactions (including Transactions entered into directly by FRONTERA with any counter-ofparty, excluding those transactions in effect as of the Effective Date), less all Costs associated with such Transactions, including all Fuel Costs and Variable O&M costs. (d) If either EPMI failsParty fails to remit any amount payable when due, interest on such unpaid sum shall accrue at a rate equal to the prime rate on the unpaid amount, as reported by the Wall Street Journal on the date payment was due, plus 2% per annum (Interest Rate) until the unpaid amount and the accruing interest are paid in full. (e) If either Party, in good faith, disputes the amount of any payment statement provided by the other Party, or any part thereof, such Party (Disputing Party) shall provide a written explanation of the basis for the dispute. If the Parties are unable to resolve the dispute within five (5) Business Days of such notice, they shall refer the dispute to senior management representatives of each Party for resolution. If the senior management representatives are unable to resolve the dispute within five (5) Business Days of referral, and a Party continues to retain amounts that the Disputing Party claims it is owed for more than three (3) Business Days past the next following Payment Date, the Disputing Party may exercise its rights under Section 20, provided, however, that the exercise of such rights shall not in any way affect the non-Formula AdvanceDisputing Party’s rights under Section 18 or 20 in response to such action. Either Party has one (1) year to dispute any payment statement or any amounts therein. (f) For the purpose of this Section, payments received by either Party after 2:00 p.m. CentralEastern Standard Time shall be considered to have been paid on the following Business Day.

Payments and Fees. 8.1 Interest Payments (a) From the Market Price agreed to in all Transactions, EPMI shall make payment for all Costs incurred with third parties in fulfilling its obligations and the obligations of FRONTERA under such Transactions, and shall make payment for all Fuel Costs, and shall remit to FRONTERA, unless otherwise agreed, on or before the Revolving Credit Facility. -------------------------------------------------- Borrowers agree to pay to Bank interest on the principal balance of Base Rate Loans under the Revolving Credit Facility on the first tenth (10th) day of each calendar month, commencing on a statement showing the first day Market Price and all Costs for the preceding month together with a payment for all Net Proceeds received during the prior calendar month. The statement of payment shall set forth the first calendar month following Market Price, the date hereofquantity of Available Energy, Capacity and Ancillary Services that were sold and scheduled for delivery in the previous month, and on the expiration of the Contract Period. Borrowers agree to pay to Bank interest on the principal balance of LIBOR Rate Loans under the Revolving Credit Facility on the last day of each Rate Period, provided that, -------- ---- for any Rate Period with a duration of more than three months, interest will also be payable every ninetieth (90/th/) day after the commencement of such Rate Period. Bank may, at its option, establish a Reserve for interest accruing on any LIBOR Rate Loans with a Rate Period Costs actually incurred in excess of one month. 8.2 Principal Payments on the Revolving Credit Facility. Funds --------------------------------------------------- received by Bank in the Cash Collateral Account will be applied by Bank toward repayment of the outstanding principal balance of the Revolving Credit Facility or may be held as cash collateral by Bank. Provided that no Event of Default has occurred, such funds will be applied by Bank to repay the outstanding principal balance of the Revolving Credit Facility, connection with such payments to be applied first ----- to repay all Loans which are Base Rate Loans, and second to repay all Loans ------ which are LIBOR Rate Loans. To the extent that any sums are applied to repay LIBOR Rate Loans, they shall be applied to LIBOR Rate Loans in the chronological order in which the Rate Periods for such LIBOR Rate Loans expire. Upon the occurrence of an Event of Default, Bank may discontinue such arrangement and may apply such funds to costs, indemnities, fees, interest and principal, constituting Obligations in such order as Bank, in its discretion elects. Provided that no Event of Default has occurred, if all Advances under the Revolving Credit Facility and all other Obligations then due and payable (not including contingent obligations under undrawn Letters of Credit) have been paid in full, and thereafter funds are received by Bank in the Cash Collateral Account, Bank will permit the transfer of such funds to Borrowers' operating account maintained with Bank. Notwithstanding the foregoing, Borrowers agree to pay the outstanding principal balance of the Revolving Credit Facilitysales, together with any accrued other relevant information. EPMI shall pay the Net Proceeds to FRONTERA and unpaid interest thereonshall remit the amount due by wire transfer, and less any other sums fee due EPMI, pursuant to the terms hereof instructions for such wire transfer provided by FRONTERA on the earlier 20th day of each calendar month (Payment Date) less EPMI’s Costs actually incurred. It is expressly understood that Net Proceeds shall be reduced by Variable O&M Costs to occur determine Net Revenues from which any fees due EPMI shall be paid. Provided, however, that the payment of (a) Net Proceeds and the expiration statement of payment described above shall not include any charges or payments related to those certain Power Purchase Agreements between EPMI and Southern Companies, Inc. for the Contract Period, or provision of 150 MW for the remainder of calendar year 2001. (b) ON DEMAND after EPMI shall be entitled to fees earned for performance under this Agreement and shall be entitled to deduct such earned fees from the occurrence of an Event of Default. If any Out-Of-Formula Advance arises or exists under the Revolving Credit Facility for any reason whatsoeverNet Proceeds, including without limitation inventory or accounts becoming ineligible or any new or increased Reserves, Borrowers agree to repay such Out-Of-Formula Advance immediately upon the earlier to occur of as follows: (i) notice or demand an initial annual fee of Fifty Thousand ($50,000) Dollars per year. In calendar year 2001, the initial annual fee owed by BankFRONTERA to EPMI shall be prorated by dividing the initial annual fee by twelve (12) and multiplying it times the number of months during the year this Agreement was in effect. The amount so determined shall be paid to EPMI in equal amounts at the end of each calendar quarter beginning with the first calendar quarter following the Effective Date. The amount payable shall be paid by the twentieth (20th) day of the month following the end of the calendar quarter. For any part month, or the monthly amount shall be divided by thirty (30) and multiplied times the number of days in the part month in which this Agreement was in effect. (ii) In addition, EPMI shall be paid an incentive fee consisting of a percentage of the Net Revenue derived from the sale of Energy, Available Energy, Capacity and Ancillary Services by EPMI, payable as follows: On the first Thirty Million ($30,000,000) Dollars of Net Revenue earned during the calendar year, no amount of fee; On the amount of Net Revenue in any Borrower has knowledge calendar year in excess of Thirty Million ($30,000,000), up to Forty Million ($40,000,000) Dollars of Net Revenue, an amount equal to Five (5%) of such Outamount; On the amount of Net Revenue in any calendar year in excess of Forty Million ($40,000,000), an amount equal to Ten (10%) of such amount. (iii) No amount of incentive fee shall be paid to EPMI in any calendar year unless and until such time as the total amount of Net Revenue received by FRONTERA exceeds Thirty Million ($30,000,000) Dollars. [Once that amount has been received, FRONTERA shall remit to EPMI the amount of the incentive fee earned under this Agreement. The amount earned shall be deducted by EPMI from the proceeds of all Transactions, after the determination of Net Revenue, in accordance with Section 16.] (iv) For the calendar year 2001, the amounts set forth above shall be prorated to reflect the fact that this Agreement was in effect for only a portion of such year. The Net Revenue amount of Thirty Million ($30,000,000) shall be reduced to the amount of Eighteen Million Three Hundred Thousand ($18,300,000). The incentive fee amounts set forth in Sections 16(b)(2) (b) and (c) shall be reduced and applied as follows: On amounts of Net Revenue over$18,300,000, but less than $24,400,000, an amount equal to 5 %; On amounts of Net Revenue in excess of $24,400,000, an amount equal to 10%. (c) For purposes of determining the fees payable to EPMI under this Agreement, Net Revenues shall equal the total Market Price agreed to by third parties with EPMI from all Transactions (including Transactions entered into directly by FRONTERA with any counter-ofparty, excluding those transactions in effect as of the Effective Date), less all Costs associated with such Transactions, including all Fuel Costs and Variable O&M costs. (d) If EPMI fails to remit any amount payable when due, interest on such unpaid sum shall accrue at a rate equal to the prime rate on the unpaid amount, as reported by the Wall Street Journal on the date payment was due, plus 2% per annum (Interest Rate) until the unpaid amount and the accruing interest are paid in full. (e) If either Party, in good faith, disputes the amount of any payment statement provided by the other Party, or any part thereof, such Party (Disputing Party) shall provide a written explanation of the basis for the dispute. If the Parties are unable to resolve the dispute within five (5) Business Days of such notice, they shall refer the dispute to senior management representatives of each Party for resolution. If the senior management representatives are unable to resolve the dispute within five (5) Business Days of referral, and a Party continues to retain amounts that the Disputing Party claims it is owed for more than three (3) Business Days past the next following Payment Date, the Disputing Party may exercise its rights under Section 20, provided, however, that the exercise of such rights shall not in any way affect the non-Formula AdvanceDisputing Party’s rights under Section 18 or 20 in response to such action. Either Party has one (1) year to dispute any payment statement or any amounts therein. (f) For the purpose of this Section, payments received by either Party after 2:00 p.m. Eastern Standard Time shall be considered to have been paid on the following Business Day.

Payments and Fees. 8.1 3.1 Principal and Interest (a) Interest Payments shall be payable on the Revolving Credit Facility. -------------------------------------------------- Borrowers agree to pay to Bank outstanding daily unpaid principal amount of each Advance from the date thereof until payment in full is made and shall accrue and be payable at the rates set forth or provided for herein before and after Default, before and after maturity, before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law, with interest on overdue interest at the principal balance of Default Rate to the fullest extent permitted by applicable Laws. (b) Interest accrued on each Base Rate Loans Loan on each Quarterly Payment Date shall be due and payable on that day. Except as otherwise provided in Section 3.9, the unpaid principal amount of any Base Rate Loan shall bear interest at a fluctuating rate per annum equal to the Base Rate plus the applicable Base Rate Margin. Each change in the interest rate under this Section 3.1(b) due to a change in the Revolving Credit Facility Base Rate shall take effect simultaneously with the corresponding change in the Base Rate. (c) Interest accrued on the first day each LIBOR Loan which is for a term of each calendar month, commencing on the first day of the first calendar month following the date hereof, three months or less shall be due and on the expiration of the Contract Period. Borrowers agree to pay to Bank interest on the principal balance of LIBOR Rate Loans under the Revolving Credit Facility payable on the last day of each Rate Period, provided that, -------- ---- for any Rate Period with a duration of more than three months, interest will also be payable every ninetieth (90/th/) day after the commencement of such Rate related Interest Period. Bank may, at its option, establish a Reserve for interest accruing Interest accrued on any each other LIBOR Rate Loans with a Rate Period in excess of one month. 8.2 Principal Payments on the Revolving Credit Facility. Funds --------------------------------------------------- received by Bank in the Cash Collateral Account will be applied by Bank toward repayment of the outstanding principal balance of the Revolving Credit Facility or may be held as cash collateral by Bank. Provided that no Event of Default has occurred, such funds will be applied by Bank to repay the outstanding principal balance of the Revolving Credit Facility, with such payments to be applied first ----- to repay all Loans which are Base Rate Loans, and second to repay all Loans ------ which are LIBOR Rate Loans. To the extent that any sums are applied to repay LIBOR Rate Loans, they Loan shall be applied to LIBOR Rate Loans in the chronological order in which the Rate Periods for such LIBOR Rate Loans expire. Upon the occurrence of an Event of Default, Bank may discontinue such arrangement and may apply such funds to costs, indemnities, fees, interest and principal, constituting Obligations in such order as Bank, in its discretion elects. Provided that no Event of Default has occurred, if all Advances under the Revolving Credit Facility and all other Obligations then due and payable on the date which is three months after the date such LIBOR Loan was made (not including contingent obligations under undrawn Letters of Credit) have been paid in fulland, and thereafter funds are received by Bank in the Cash Collateral Account, Bank will permit the transfer of such funds to Borrowers' operating account maintained with Bank. Notwithstanding the foregoing, Borrowers agree to pay the outstanding principal balance event that all of the Revolving Credit FacilityLenders have approved a Interest Period of longer than six months, together with any accrued every three months thereafter through the last day of the Interest Period) and unpaid interest thereon, and any other sums due pursuant to the terms hereof on the earlier last day of the related Interest Period. Except as otherwise provided in Section 3.9, the unpaid principal amount of any LIBOR Loan shall bear interest at a rate per annum equal to occur of LIBOR for that LIBOR Loan plus the applicable LIBOR Margin. (ad) If not sooner paid, the principal Indebtedness evidenced by the Notes shall be payable as follows: (i) the expiration of amount, if any, by which the Contract Period, or (b) ON DEMAND after the occurrence of an Event of Default. If any Out-Of-Formula Advance arises or exists under the Revolving Credit Facility for any reason whatsoever, including without limitation inventory or accounts becoming ineligible or any new or increased Reserves, Borrowers agree to repay such Out-Of-Formula Advance immediately upon the earlier to occur sum of (i) notice or demand by Bank, or the aggregate principal amount under the Revolving Notes plus (ii) the Swing Line Outstandings plus (iii) the Letter of Credit Usage at any Borrower has knowledge time exceeds the then applicable Revolving Commitment (including as it may be reduced from time to time pursuant to Sections 2.5 or 2.8) shall in each case be payable immediately; (ii) the Term Loans shall be payable on each Quarterly Payment Date in the related Term Amortization Amount; (iii) the amount by which the principal Indebtedness evidenced by the Term Notes at any time exceeds the Term Commitment shall be payable immediately; and (iv) the principal Indebtedness evidenced by the Notes shall in any event be payable on the Revolving Maturity Date or Term Maturity Date, as applicable. (e) The Notes may, at any time and from time to time, voluntarily be paid or prepaid in whole or in part without premium or penalty, except that with respect to any voluntary prepayment under this Section, (i) any partial prepayment shall be not less than $1,000,000 and in an integral multiple of $500,000, (ii) the Administrative Agent shall have received written notice of any prepayment by 9:00 a.m. Nevada time on the Business Day prior to the date of prepayment (which must be a Business Day) in the case of an Base Rate Loan, and, in the case of a LIBOR Loan, three Business Days before the date of prepayment (which must be a Business Day), which notice shall identify the date and amount of the prepayment and the Loan(s) being prepaid, (iii) each prepayment of principal on any LIBOR Loan shall be accompanied by payment of interest accrued to the date of payment on the amount of principal paid, (iv) any payment or prepayment of all or any part of any LIBOR Loan on a day other than the last day of the applicable Interest Period shall be subject to Section 3.8(e) and (v) upon any partial prepayment of a LIBOR Loan that reduces the principal amount of such Out-of-Formula AdvanceLoan below $2,000,000, the remaining portion thereof shall automatically convert to a Base Rate Loan.

Payments and Fees. 8.1 Interest Payments on the Revolving Credit Facility. -------------------------------------------------- Borrowers agree to pay to Bank interest on the principal balance of Base Rate Loans under the Revolving Credit Facility on the first day of each calendar month, commencing on the first day Sections 3.5(a) and 3.9(e) of the first calendar month following Loan Agreement are hereby deleted in their entirety and replaced with the following: (a) If, after the date hereof, and on the expiration existence or occurrence of the Contract Period. Borrowers agree any Special LIBOR Circumstance: (i) shall subject any Lender or its LIBOR Lending Office to pay any tax, duty or other charge or cost with respect to Bank interest on the principal balance any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans under or its obligation to make LIBOR Rate Advances, or shall change the Revolving Credit Facility on basis of taxation of payments to any Lender attributable to the last day principal of each Rate Period, provided that, -------- ---- for any Rate Period with a duration of more than three months, or interest will also be payable every ninetieth (90/th/) day after the commencement of such Rate Period. Bank may, at its option, establish a Reserve for interest accruing on any LIBOR Rate Advance or any other amounts due under this Agreement in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans with a or its obligation to make LIBOR Rate Period Advances, excluding (i) taxes imposed on or measured in excess whole or in part by its overall net income (including taxes on gross income imposed in lieu of one month. 8.2 Principal Payments net income, minimum taxes or branch profits taxes and franchise taxes) by (A) any jurisdiction (or political subdivision thereof) in which it is organized or maintains its principal office or LIBOR Lending Office or (B) any jurisdiction (or political subdivision thereof) in which it is “doing business”, (ii) any withholding taxes or other taxes imposed by the United States of America on the Revolving Credit Facility. Funds --------------------------------------------------- received day such Lender becomes a Lender hereunder or for any period with respect to which it has failed, for any reason, to provide Borrower with the appropriate form or forms required by Bank in Section 11.21, to the Cash Collateral Account will be applied extent such forms are then required by Bank toward repayment applicable Laws to establish a complete exemption, and (iii) any withholding taxes imposed under FATCA; (ii) shall impose, modify or deem applicable any reserve not applicable or deemed applicable on the date hereof (including any reserve imposed by the Board of Governors of the outstanding principal balance of Federal Reserve System, special deposit, compulsory loan, insurance charge, capital, liquidity or similar requirements against assets of, deposits with or for the Revolving Credit Facility account of, or may be held as cash collateral by Bank. Provided that no Event of Default has occurredcredit extended by, such funds will be applied by Bank to repay any Lender or its LIBOR Lending Office); or (iii) shall impose on any Lender or its LIBOR Lending Office or the outstanding principal balance of the Revolving Credit Facility, with such payments to be applied first ----- to repay all Loans which are Base Rate Loans, and second to repay all Loans ------ which are London interbank market any other condition affecting any LIBOR Rate Loans. To the extent that Advance, any sums are applied to repay of its Notes evidencing LIBOR Rate Loans, they its obligation to make LIBOR Rate Advances or this Agreement, or shall be applied otherwise affect any of the same; and the result of any of the foregoing, as determined in good faith by such Lender, increases the cost to such Lender or its LIBOR Lending Office of making or maintaining any LIBOR Rate Advance or in respect of any LIBOR Rate Advance, any of its Notes evidencing LIBOR Rate Loans in or its obligation to make LIBOR Rate Advances or reduces the chronological order in which the amount of any sum received or receivable by such Lender or its LIBOR Lending Office with respect to any LIBOR Rate Periods for such Advance, any of its Notes evidencing LIBOR Rate Loans expire. Upon or its obligation to make LIBOR Rate Advances, then, within five (5) Banking Days after demand by such Lender (with a copy to the Administrative Agent), Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender for such increased cost or reduction (determined as though such Lender’s LIBOR Lending Office had funded 100% of its LIBOR Rate Advance in the London interbank market), provided, that with respect to any additional amount arising as a result of the occurrence of an Event of Default, Bank may discontinue such arrangement and may apply such funds to costs, indemnities, fees, interest and principal, constituting Obligations event described in such order as Bank, in its discretion elects. Provided that no Event of Default has occurred, if all Advances under the Revolving Credit Facility and all other Obligations then due and payable (not including contingent obligations under undrawn Letters of Credit) have been paid in full, and thereafter funds are received by Bank in the Cash Collateral Account, Bank will permit the transfer of such funds to Borrowers' operating account maintained with Bank. Notwithstanding the foregoing, Borrowers agree to pay the outstanding principal balance of the Revolving Credit Facility, together with any accrued and unpaid interest thereon, and any other sums due pursuant to the terms hereof on the earlier to occur of (a) the expiration of the Contract Period, or (b) ON DEMAND after the occurrence of an Event of Default. If any Out-Of-Formula Advance arises or exists under the Revolving Credit Facility for any reason whatsoever, including without limitation inventory or accounts becoming ineligible or any new or increased Reserves, Borrowers agree to repay such Out-Of-Formula Advance immediately upon the earlier to occur of clause (i) notice or demand by Bankabove, or Borrower shall not be obligated to pay any such amount which arose prior to the date which is ninety (ii90) any Borrower has knowledge days preceding the date of such Outdemand or is attributable to periods prior to the date which is ninety (90) days preceding the date of such demand (except that, if the Special LIBOR Circumstance giving rise to such increased costs or reductions is retroactive, then the 90-of-Formula Advanceday period referred to above shall be extended to include the period of retroactive effect thereof). A statement of any Lender claiming compensation under this subsection shall be conclusive in the absence of manifest error."

Payments and Fees. 8.1 3.1 Principal and Interest Payments ---------------------- (a) Interest shall be payable on the Revolving Credit Facility. -------------------------------------------------- Borrowers agree to pay to Bank outstanding daily unpaid principal amount of each Loan and each Competitive Advance from the date thereof until payment in full is made and shall accrue and be payable at the rates set forth herein before and after default, before and after maturity, before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law, with interest on overdue interest to bear interest at the principal balance of Default Rate to the fullest extent permitted by applicable Laws. (b) Interest accrued on each Base Rate Loans under the Revolving Credit Facility on the first day of each calendar month, commencing on the first day of the first calendar month following the date hereof, and on the expiration of the Contract Period. Borrowers agree to pay to Bank interest on the principal balance of LIBOR Rate Loans under the Revolving Credit Facility Loan shall be payable quarterly in arrears on the last day of each March, June, September and December commencing on the first such date to occur after the Closing Date. Except as ------ otherwise provided in Section 3.9, the unpaid principal amount of any Base ----------- Rate Loan shall bear interest at a fluctuating rate per annum equal to the Base Rate. Each change in the interest rate hereunder shall take effect simultaneously with the corresponding change in the Base Rate. Each change in the Base Rate shall be effective as of 12:01 a.m., New York time, on the Banking Day on which the change in the Base Rate is announced, unless otherwise specified in such announcement, in which case the change shall be effective as so specified. (c) Interest accrued on each Eurodollar Rate Loan the Eurodollar Period for which is three months or less shall be due and payable on the last day of the applicable Eurodollar Period. Interest accrued on each other Eurodollar Rate Loan shall be due and payable on every three month anniversary of the date which is three months after the date such Eurodollar Rate Loan was made, converted or continued pursuant to Section 2.6 and on the last day of the Eurodollar Period. Except as otherwise ------ provided thatin Section 3.9, -------- the unpaid principal amount of any Eurodollar Rate ----------- Loan shall bear interest at a rate per annum equal to the Eurodollar Rate for that Eurodollar Rate Loan plus the Applicable Percentage. Each change ---- in the Applicable Percentage shall be effective as of the date of the public announcement or publication by Standard & Poor's Ratings Group or Xxxxx'x Investors Service, Inc. of a change in the Company's senior unsecured long- term debt ratings. Each Bank claiming a right to payment of a Eurodollar Reserve Percentage in connection with any Eurodollar Rate Loan shall deliver to the Company and the Administrative Agent a statement setting forth in reasonable detail the amount of the Eurodollar Reserve Percentage and the calculation of the increased amount payable by the Company in respect of that Bank's Pro Rata Share of such Eurodollar Rate Loan. The Company shall pay to the Administrative Agent, for any the account of such Bank, the amount of the Eurodollar Reserve Percentage set forth in such Bank's statement together with each payment of interest on the applicable Eurodollar Rate Period with a duration Loan. (d) Interest accrued on each Competitive Advance shall be due and payable on the maturity date of more than three monthsthe Competitive Advance. Except as ------ otherwise provided in Section 3.9, the unpaid principal amount of each ----------- Competitive Advance shall bear interest will also at the rate specified in the relevant Competitive Bid. (e) If not sooner paid, the principal Indebtedness evidenced by the Notes shall be payable every ninetieth as follows: (90/th/i) day after the commencement principal amount of such Rate Period. Bank each Loan shall be payable on the Maturity Date; and (ii) the principal amount of each Competitive Advance shall be payable on the maturity date of that Competitive Advance. (f) The Committed Advance Notes may, at its optionany time and from time to time, establish a Reserve for interest accruing on voluntarily be paid or prepaid in whole or in part without premium or penalty, except that with respect to any LIBOR Rate Loans with a Rate Period in excess of one month. 8.2 Principal Payments on the Revolving Credit Facility. Funds --------------------------------------------------- received by Bank in the Cash Collateral Account will be applied by Bank toward repayment of the outstanding principal balance of the Revolving Credit Facility or may be held as cash collateral by Bank. Provided that no Event of Default has occurredvoluntary prepayment under this ------ subsection, such funds will be applied by Bank to repay the outstanding principal balance of the Revolving Credit Facility, with such payments to be applied first ----- to repay all Loans which are Base Rate Loans, and second to repay all Loans ------ which are LIBOR Rate Loans. To the extent that any sums are applied to repay LIBOR Rate Loans, they shall be applied to LIBOR Rate Loans in the chronological order in which the Rate Periods for such LIBOR Rate Loans expire. Upon the occurrence of an Event of Default, Bank may discontinue such arrangement and may apply such funds to costs, indemnities, fees, interest and principal, constituting Obligations in such order as Bank, in its discretion elects. Provided that no Event of Default has occurred, if all Advances under the Revolving Credit Facility and all other Obligations then due and payable (not including contingent obligations under undrawn Letters of Credit) have been paid in full, and thereafter funds are received by Bank in the Cash Collateral Account, Bank will permit the transfer of such funds to Borrowers' operating account maintained with Bank. Notwithstanding the foregoing, Borrowers agree to pay the outstanding principal balance of the Revolving Credit Facility, together with any accrued and unpaid interest thereon, and any other sums due pursuant to the terms hereof on the earlier to occur of (a) the expiration of the Contract Period, or (b) ON DEMAND after the occurrence of an Event of Default. If any Out-Of-Formula Advance arises or exists under the Revolving Credit Facility for any reason whatsoever, including without limitation inventory or accounts becoming ineligible or any new or increased Reserves, Borrowers agree to repay such Out-Of-Formula Advance immediately upon the earlier to occur of (i) notice or demand by Bankany partial prepayment shall be in minimum amount of $2,000,000 and multiples of $1,000,000 in excess thereof, or (ii) the Administrative Agent shall have received written notice of any Borrower has knowledge prepayment by 11:00 a.m. (New York time) on the date of prepayment (which shall be a Banking Day), in the case of a Base Rate Loan, and by 1:00 p.m. (New York time) three (3) Banking Days before the date of prepayment, in the case of a Eurodollar Rate Loan, which notice shall identify the date and amount of the prepayment and the Loan(s) being prepaid, (iii) each prepayment of principal shall be accompanied by payment of interest accrued through the date of payment on the amount of principal paid and (iv) in any event, any payment or prepayment of all or any part of any Eurodollar Rate Loan on a day other than the last day of the applicable Interest Period shall be subject to Section 3.8(c). -------------- (g) The Competitive Advance Notes may not be voluntarily prepaid in whole or in part without the consent of the holder thereof. In the event of any prepayment of the Competitive Advance Notes in violation of this Section, the Company shall pay to the affected Bank such amounts as are necessary, in the reasonable estimation of that Bank, to compensate that Bank for the effect of such Out-of-Formula Advanceprepayment.