Common use of Accounting Based Consolidation Event Clause in Contracts

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event shall at any time occur, the Borrower shall, on the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the applicable Administrative Agent, for the benefit of the relevant Affected Party, such amounts as such Affected Party reasonably determines will compensate or reimburse such Affected Party for any resulting (i) fee, expense or increased cost, including without limitation, charged to, incurred or otherwise suffered by such Affected Party, or (ii) reduction in the rate of return on such Affected Party's capital or reduction in the amount of any sum received or receivable by such Affected Party, in each case determined by such Affected Party to be allocable to the Borrower or the transactions contemplated in this Agreement in connection therewith. Amounts under this Section 2.12 may be demanded at any time without regard to the timing of issuance of any financial statement by any Conduit Lender or by any Affected Party; provided that a Conduit Lender on behalf of such Affected Party shall provide to the Borrower a calculation in reasonable detail of the amounts payable to each Affected Party pursuant to this Section 2.12 and such calculation shall be binding in the absence of manifest error; provided, further, in respect of any Monthly Period, the amount due to an Affected Party under this Section 2.12 when combined with the Interest payable to such Affected Party for such Monthly Period shall be equal to the amount of Interest that would have accrued if the Tranche held by such Affected Party were a Base Rate Tranche during such Monthly Period. (b) For purposes of this Section 2.12, "Accounting Based Consolidation Event" means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit Lender that are subject to this Agreement or any other Facility Document with all or any portion of the assets and liabilities of an Affected Party. An Accounting Based Consolidation Event shall be deemed to occur on the date any Affected Party shall acknowledge in writing that any such consolidation of the assets and liabilities of a Conduit Lender shall occur.

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event shall at any time occur, the Borrower shall, on the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the applicable Administrative Agent, for the benefit of the relevant Affected Party, such amounts as such Affected Party reasonably determines will compensate or reimburse such Affected Party for any resulting (i) fee, expense or increased cost, including without limitation, charged to, incurred or otherwise suffered by such Affected Party, or (ii) reduction in the rate of return on such Affected Party's ’s capital or reduction in the amount of any sum received or receivable by such Affected Party, in each case determined by such Affected Party to be allocable to the Borrower or the transactions contemplated in this Agreement in connection therewith. Amounts under this Section 2.12 may be demanded at any time without regard to the timing of issuance of any financial statement by any Conduit Lender or by any Affected Party; provided that a Conduit Lender on behalf of such Affected Party shall provide to the Borrower a calculation in reasonable detail of the amounts payable to each Affected Party pursuant to this Section 2.12 and such calculation shall be binding in the absence of manifest error; provided, further, in respect of any Monthly Period, the amount due to an Affected Party under this Section 2.12 when combined with the Interest payable to such Affected Party for such Monthly Period shall be equal to the amount of Interest that would have accrued if the Tranche held by such Affected Party were a Base Rate Tranche during such Monthly Period. (b) For purposes of this Section 2.12, "“Accounting Based Consolidation Event" ” means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit Lender that are subject to this Agreement or any other Facility Document with all or any portion of the assets and liabilities of an Affected Party. An Accounting Based Consolidation Event shall be deemed to occur on the date any Affected Party shall acknowledge in writing that any such consolidation of the assets and liabilities of a Conduit Lender shall occur.

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event shall at any time occuroccur then, upon demand by the Agent or the applicable Managing Agent, the Borrower shall, on Seller shall pay to the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the Agent or such applicable Administrative Managing Agent, for the benefit of the relevant Affected PartyEntity, such amounts as such Affected Party Entity reasonably determines will compensate or reimburse such Affected Party Entity for any resulting (i) fee, expense or increased cost, including without limitation, cost charged to, incurred or otherwise suffered by such Affected PartyEntity, or (ii) reduction in the rate of return on such Affected Party's Entity’s capital or reduction in the amount of any sum received or receivable by such Affected Party, in each case Entity or (iii) internal capital charge or other imputed cost determined by such Affected Party Entity to be allocable to the Borrower Seller or the transactions contemplated in this Agreement in connection therewith. Amounts under this Section 2.12 10.5 may be demanded at any time without regard to the timing of issuance of any financial statement by any Conduit Lender or by any Affected Party; provided that a Conduit Lender on behalf of such Affected Party shall provide to the Borrower a calculation in reasonable detail of the amounts payable to each Affected Party pursuant to this Section 2.12 and such calculation shall be binding in the absence of manifest errorEntity; provided, furtherhowever, that in respect of no event may any Monthly Period, Affected Entity (or the amount due to an Affected Party applicable Agent or Managing Agent on its behalf) claim or receive reimbursement or compensation for amounts under this Section 2.12 when combined with the Interest payable to such Affected Party for such Monthly Period shall be equal to the amount of Interest 10.5 that would have accrued if exceed 2.00% per annum on the Tranche held by Group Purchase Limit for the related Purchaser Group from the date such Affected Party were a Base Rate Tranche during such Monthly Period. (b) For purposes of this Section 2.12, "Accounting Based Consolidation Event" means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit Lender that are subject to this Agreement or any other Facility Document with all or any portion of the assets and liabilities of an Affected Party. An Accounting Based Consolidation Event occurs. If the Agent or any Managing Agent becomes or reasonably believes that it will become entitled to claim any additional amounts pursuant to this subsection, it shall be deemed promptly notify the Borrower of the event by reason of which it has become or will become so entitled; provided that any failure to occur on give such notice shall not affect the date rights to demand payment under this section. If any Affected Party shall acknowledge in writing that any Entity (or the applicable Agent or Managing Agent on its behalf) requests compensation under this Section 10.5, then the Seller may, at its sole expense and effort, upon notice to such consolidation Affected Entity and its related Managing Agent, require the entire related Purchaser Group (but may not require less than all of the assets Purchasers and liabilities the Managing Agent in such Purchaser Group) to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 12.1), all of a Conduit Lender their interests, rights and obligations under this Agreement to assignees that shall occurassume such obligations (which assignees may be other Purchasers if such Purchasers accept such assignment); provided that each such assigning Purchaser and Managing Agent receives payment in full, pursuant to an Assignment Agreement, of an amount equal to such Persons’s share of the Aggregate Capital and Yield owing to such Purchaser and all accrued but unpaid fees and other costs and expenses payable in respect of such Purchaser Group’s share of the Purchaser Interests.

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event shall at any time occuroccur then, upon demand by the Administrative Agent, the Borrower shall, on shall pay to the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the applicable Administrative Agent, for the benefit of the relevant Affected PartyEntity, such amounts as such Affected Party Entity reasonably determines will compensate or reimburse such Affected Party Entity for any resulting (i) fee, expense or increased cost, including without limitation, cost charged to, incurred or otherwise suffered by such Affected PartyEntity, or (ii) reduction in the rate of return on such Affected Party's Entity’s capital or reduction in the amount of any sum received or receivable by such Affected PartyEntity or (iii) opportunity cost, in each case internal capital charge or other imputed cost determined by such Affected Party Entity to be allocable to the Borrower or the transactions contemplated in this Agreement any Transaction Document in connection therewith, in each case to the extent not otherwise reimbursable by the Borrower pursuant to Section 3.04(b). Amounts under this Section 2.12 3.08 may be demanded at any time without regard to the timing of issuance of any financial statement by any Conduit Lender the Borrower or by any Affected Party; provided that a Conduit Lender on behalf of such Affected Party Entity. The Borrower shall provide to the Borrower a calculation in reasonable detail of the amounts payable to each Affected Party pursuant to this Section 2.12 and such calculation shall be binding in the absence of manifest error; provided, further, in respect of any Monthly Period, the amount due to an Affected Party under this Section 2.12 when combined with the Interest payable pay to such Affected Party for Entity such Monthly Period shall be equal to the amount amounts within fifteen (15) days after receipt of Interest that would have accrued if the Tranche held by such Affected Party were a Base Rate Tranche during such Monthly Perioddemand.” (b) For purposes of this Section 2.12, "Accounting Based Consolidation Event" means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion 3.06(b) of the assets Credit Agreement is hereby amended by deleting the first sentence thereof and liabilities of replacing it with the following: “With respect to any Conduit Lender’s claim for compensation under Section 3.01, 3.02, 3.03, 3.04 or 3.08, the Borrower shall not be required to compensate such Lender for any amount incurred more than one hundred and eighty (180) days prior to the date that are subject to this Agreement or any other Facility Document with all or any portion such Lender notifies the Borrower of the assets and liabilities of an Affected Party. An Accounting Based Consolidation Event event that gives rise to such claim; provided, however, that, if the circumstance giving rise to such claim is retroactive, then such 180-day period referred to above shall be deemed extended to occur on include the date any Affected Party shall acknowledge in writing that any such consolidation period of retroactive effect thereof.” (c) Section 3.07 of the assets Credit Agreement is hereby amended by deleting the first sentence thereof and liabilities replacing it with the following: “Amounts payable by the Borrower under Sections 3.01, 3.04, 3.05 and 3.08 are payable only to the extent that funds are available under Section 2.03(c)(vii).” (d) Article XI of a Conduit Lender shall occur.the Credit Agreement is hereby amended by inserting the following new Section 11.22:

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event Upon demand by the related Co-Agent, Seller shall at any time occur, the Borrower shall, on the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the applicable Administrative to such Co-Agent, for the benefit of the relevant Affected PartyEntity, such amounts (without duplication of any amounts payable as described in Section 10.2 above) as such Affected Party Entity reasonably determines will compensate or reimburse such Affected Party Entity for any resulting (i) fee, expense or increased cost, including without limitation, cost charged to, incurred or otherwise suffered by such Affected PartyEntity, or (ii) reduction in the rate of return on such Affected Party's Entity’s capital or reduction in the amount of any sum received or receivable by such Affected PartyEntity or (iii) internal capital charge or other imputed cost, in each case case, as determined by such Affected Party Entity to be allocable to the Borrower Seller or the transactions contemplated in this Agreement Agreement, in each case resulting from or in connection therewith. Amounts under this Section 2.12 may be demanded at any time without regard to the timing of issuance of any financial statement by any Conduit Lender or by any Affected Party; provided that a Conduit Lender on behalf of such Affected Party shall provide to the Borrower a calculation in reasonable detail of the amounts payable to each Affected Party pursuant to this Section 2.12 and such calculation shall be binding in the absence of manifest error; provided, further, in respect of any Monthly Period, the amount due to an Affected Party under this Section 2.12 when combined with the Interest payable to such Affected Party for such Monthly Period shall be equal to the amount of Interest that would have accrued if the Tranche held by such Affected Party were a Base Rate Tranche during such Monthly Period. (b) For purposes of this Section 2.12, "Accounting Based Consolidation Event" means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit Lender that are subject to this Agreement or any other Facility Transaction Document with all or any portion of the assets and liabilities of an Affected PartyEntity; provided, however, that in no event may any Affected Entity (or the applicable Co-Agent on its behalf) with respect to any Conduit claim or receive reimbursement or compensation for amounts under this Section 10.4 (x) that would result in the total compensation payable to it and all other Affected Entities with respect to such Conduit (inclusive of Yield and fees) exceeding the total compensation that would have been payable to all such Affected Entities immediately prior to such consolidation if purchases of Purchaser Interests had been made by the related Committed Purchaser pursuant to Article IV of this Agreement or (y) which were charged to, incurred or otherwise suffered by such Affected Entity on or before February 19, 2010. An Accounting Based Consolidation Event Amounts under this Section 10.4 may be demanded at any time without regard to the timing of issuance of any financial statement by the Conduit or by any Affected Entity. A certificate of the Affected Entity setting forth in reasonable detail the amount or amounts payable to such Affected Entity pursuant to this Section 10.4 and explaining the manner in which such amount was determined shall be deemed delivered to occur the Seller and shall be conclusive absent manifest error. The Seller shall pay such Affected Entity the amount as due on any such certificate on the date any Affected Party shall acknowledge next Settlement Date following receipt of such notice. (f) The following definitions appearing in writing that any such consolidation of Exhibit I to the assets Receivables Purchase Agreement are amended and liabilities of a Conduit Lender shall occur.restated in their entireties to read, respectively, as follows:

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event shall at any time occuroccur then, upon demand by the Borrower shallAdministrative Agent, on Transferor shall pay to the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the applicable Administrative Agent, for the benefit of the relevant Affected PartyEntity, such amounts as such Affected Party Entity reasonably determines will compensate or reimburse such Affected Party Entity for any resulting (i) fee, expense or increased cost, including without limitation, cost charged to, incurred or otherwise suffered by such Affected PartyEntity, or (ii) reduction in the rate of return on such Affected Party's Entity’s capital or reduction in the amount of any sum received or receivable by such Affected Party, in each case Entity or (iii) internal capital charge or other imputed cost determined by such Affected Party Entity to be allocable to the Borrower Seller or the transactions contemplated in this Agreement in connection therewith. Amounts under this Section 2.12 2.26 may be demanded at any time without regard to the timing of issuance of any financial statement by any the CP Conduit Lender Purchasers or by any Affected Party; provided that a Conduit Lender on behalf Entity.” (n) Section 5.01(d) of such Affected Party shall provide the Agreement is hereby amended by inserting the following language immediately after the last sentence thereof: “In addition to the Borrower a calculation in foregoing, at any time during the two month period preceding the Supplemental Audit Date and with reasonable detail prior notice to the Transferor, the Transferor will, and will cause each Seller, during regular business hours, to permit representatives, auditors and other independent contractors of the amounts payable Administrative Agent to each Affected Party pursuant perform an audit of the Receivables, the Sellers and their operations and systems, including permitting such representatives, auditors, and other independent contractors (i) to this Section 2.12 examine and such calculation shall be binding make copies of and abstracts from all Records, and (ii) to visit the offices and properties of the Transferor and the Sellers, to the extent determined by and in the absence manner specified by the Administrative Agent in its reasonable discretion for the purpose of manifest error; providedproducing an audit report for use by the Committed Lenders (the “Supplemental Audit”). The Transferor agrees to pay all reasonable out-of-pocket expenses incurred by the Administrative Agent (including, furtherwithout limitation, in respect the cost of any Monthly Period, the amount due to an Affected Party under this Section 2.12 when combined auditors or other independent contractor) in connection with the Interest payable Supplemental Audit and the Administrative Agent shall notify the Transferor of the date of the completion of the Supplemental Audit.” (o) The text of Section 6.07(a) of the Agreement is hereby amended by deleting the language “(iii) the Collection Agent fails to such Affected Party for such Monthly Period shall be equal deliver any Deposit Report within two (2) Business Days” and inserting in place thereof”(iii) the Collection Agent fails to the amount of Interest that would have accrued if the Tranche held by such Affected Party were a Base Rate Tranche during such Monthly Perioddeliver any Deposit Report within one (1) Business Day”. (bp) For purposes of this Section 2.12, "Accounting Based Consolidation Event" means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion 7.01(p) of the assets Agreement is hereby amended by deleting the “.” and liabilities of any Conduit Lender that are subject to this Agreement or any other Facility Document with all or any portion inserting in place thereof “; or”.: (q) The following new Section 7.01(q) is hereby inserted immediately after Section 7.01(p) of the assets and liabilities of an Affected Party. An Accounting Based Consolidation Event shall be deemed to occur on the date any Affected Party shall acknowledge in writing that any such consolidation of the assets and liabilities of a Conduit Lender shall occur.Agreement:

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event Upon demand by the related Conduit Agent, Seller shall at any time occur, the Borrower shall, on the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the applicable Administrative to such Conduit Agent, for the benefit of the relevant Affected PartyEntity, such amounts (without duplication of any amounts payable as described in Section 10.2 above) as such Affected Party Entity reasonably determines will compensate or reimburse such Affected Party Entity for any resulting (i) fee, expense or increased cost, including without limitation, cost charged to, incurred or otherwise suffered by such Affected PartyEntity, or (ii) reduction in the rate of return on such Affected Party's Entity’s capital or reduction in the amount of any sum received or receivable by such Affected PartyEntity or (iii) internal capital charge or other imputed cost, in each case case, as determined by such Affected Party Entity to be allocable to the Borrower Seller or the transactions contemplated in this Agreement Agreement, in each case resulting from or in connection therewith. Amounts under this Section 2.12 may be demanded at any time without regard to the timing of issuance of any financial statement by any Conduit Lender or by any Affected Party; provided that a Conduit Lender on behalf of such Affected Party shall provide to the Borrower a calculation in reasonable detail of the amounts payable to each Affected Party pursuant to this Section 2.12 and such calculation shall be binding in the absence of manifest error; provided, further, in respect of any Monthly Period, the amount due to an Affected Party under this Section 2.12 when combined with the Interest payable to such Affected Party for such Monthly Period shall be equal to the amount of Interest that would have accrued if the Tranche held by such Affected Party were a Base Rate Tranche during such Monthly Period. (b) For purposes of this Section 2.12, "Accounting Based Consolidation Event" means the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit Lender that are subject to this Agreement or any other Facility Transaction Document with all or any portion of the assets and liabilities of an Affected PartyEntity; provided, however, that in no event may any Affected Entity (or the applicable Conduit Agent on its behalf) with respect to any Conduit claim or receive reimbursement or compensation for amounts under this Section 10.4 (x) that would result in the total compensation payable to it and all other Affected Entities with respect to such Conduit (inclusive of Yield and fees) exceeding the total compensation that would have been payable to all such Affected Entities immediately prior to such consolidation if purchases of Purchaser Interests had been made by the related Committed Purchaser pursuant to Article IV of this Agreement or (y) which were charged to, incurred or otherwise suffered by such Affected Entity on or before February 19, 2010. An Accounting Based Consolidation Event Amounts under this Section 10.4 may be demanded at any time without regard to the timing of issuance of any financial statement by the Conduit or by any Affected Entity. A certificate of the Affected Entity setting forth in reasonable detail the amount or amounts payable to such Affected Entity pursuant to this Section 10.4 and explaining the manner in which such amount was determined shall be deemed delivered to occur the Seller and shall be conclusive absent manifest error. The Seller shall pay such Affected Entity the amount as due on any such certificate on the date any Affected Party shall acknowledge in writing that any next Settlement Date following receipt of such consolidation of the assets and liabilities of a Conduit Lender shall occurnotice.

Accounting Based Consolidation Event. (a) If an Accounting Based Consolidation Event Upon demand by the related Managing Agent, Seller shall at any time occur, the Borrower shall, on the next Settlement Date which is at least five (5) Business Days after receipt of the certificate described below, pay the applicable Administrative to such Managing Agent, for the benefit of the relevant Affected PartyEntity, such amounts (without duplication of any amounts payable as described in Section 9.2 above) as such Affected Party Entity reasonably determines will compensate or reimburse such Affected Party Entity for any resulting (i) fee, expense or increased cost, including without limitation, cost charged to, incurred or otherwise suffered by such Affected PartyEntity, or (ii) reduction in the rate of return on such Affected Party's Entity’s capital or reduction in the amount of any sum received or receivable by such Affected PartyEntity or (iii) internal capital charge or other imputed cost, in each case case, as determined by such Affected Party Entity to be allocable to the Borrower Seller or the transactions contemplated in this Agreement Agreement, in each case resulting from or in connection therewith. Amounts under this Section 2.12 may be demanded at any time without regard to the timing of issuance of any financial statement by any Conduit Lender or by any Affected Party; provided that a Conduit Lender on behalf of such Affected Party shall provide to the Borrower a calculation in reasonable detail of the amounts payable to each Affected Party pursuant to this Section 2.12 and such calculation shall be binding in the absence of manifest error; provided, further, in respect of any Monthly Period, the amount due to an Affected Party under this Section 2.12 when combined with the Interest payable to such Affected Party for such Monthly Period following (which shall be equal to the amount of Interest that would have accrued if the Tranche held by such Affected Party were constitute a Base Rate Tranche during such Monthly Period. (b) For purposes of this Section 2.12, "Accounting Based “Consolidation Event" means ”): the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit Lender Purchaser that are subject to this Agreement or any other Facility Transaction Document with all or any portion of the assets and liabilities of an Affected PartyEntity; provided, however, that (A) the amounts paid by the Seller to any Affected Entity under this Section 9.5 for any Accrual Period shall not exceed an amount equal to (x) the total Capital of such Affected Entity during such Accrual Period multiplied by (y) the Applicable Margin during such Accrual Period, (B) in no event may any Affected Entity (or the applicable Managing Agent on its behalf) claim or receive reimbursement or compensation for amounts under this Section 9.5 which were charged to, incurred or otherwise suffered by such Affected Entity on or before the later of (x) May 19, 2010 and (y) the date that is more than ninety (90) days prior to the date on which demand therefor was made and (C) such Affected Entity shall have applied consistent return metrics to other similarly situated borrowers or obligors (after consideration of facility pricing, structure, usage patterns, capital treatment and relationship) with respect to such fee, expense, increased cost, reduction, charge or other imputed cost. An Accounting Based Consolidation Event Subject to the proviso in the preceding sentence, amounts under this Section 9.5 may be demanded at any time without regard to the timing of issuance of any financial statement by the Conduit Purchaser or by any Affected Entity. A certificate of the Affected Entity claiming compensation under this Section 9.5 shall be deemed delivered to occur on Seller and shall be conclusive absent manifest error; provided that such certificate (i) sets forth in reasonable detail the date any amount or amounts payable to such Affected Party shall acknowledge Entity pursuant to this Section 9.5, (ii) explains the manner in writing which such amount was determined and (iii) states that any such consolidation of the assets and liabilities of a Conduit Lender shall occur.applicable Affected Entity has