Common use of Accounting Based Consolidation Event Clause in Contracts

Accounting Based Consolidation Event. Upon demand by the related Conduit Agent, Seller shall pay to such Conduit Agent, for the benefit of the relevant Affected Entity, such amounts (without duplication of any amounts payable as described in Section 10.2 above) as such Affected Entity reasonably determines will compensate or reimburse such Affected Entity for any (i) fee, expense or increased cost charged to, incurred or otherwise 37 suffered by such Affected Entity, (ii) reduction in the rate of return on such Affected Entity’s capital or reduction in the amount of any sum received or receivable by such Affected Entity or (iii) internal capital charge or other imputed cost, in each case, as determined by such Affected Entity to be allocable to Seller or the transactions contemplated in this Agreement, in each case resulting from or in connection with the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit that are subject to this Agreement or any other Transaction Document with all or any portion of the assets and liabilities of an Affected Entity; 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. 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 delivered to 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 next Settlement Date following receipt of such notice.

Accounting Based Consolidation Event. Upon If an Accounting Based Consolidation Event shall at any time occur then, upon demand by the related Conduit Agent or the applicable Managing Agent, the Seller shall pay to the Agent or such Conduit applicable Managing Agent, for the benefit of the relevant Affected Entity, such amounts (without duplication of any amounts payable as described in Section 10.2 above) as such Affected Entity reasonably determines will compensate or reimburse such Affected Entity for any resulting (i) fee, expense or increased cost charged to, incurred or otherwise 37 suffered by such Affected Entity, (ii) reduction in the rate of return on such Affected Entity’s capital or reduction in the amount of any sum received or receivable by such Affected Entity or (iii) internal capital charge or other imputed cost, in each case, as cost determined by such Affected Entity to be allocable to the Seller or the transactions contemplated in this Agreement, in each case resulting from or Agreement in connection with therewith. Amounts under this Section 10.5 may be demanded at any time without regard to the consolidation, for financial and/or regulatory accounting purposes, timing of all or any portion of the assets and liabilities issuance of any financial statement by any Conduit that are subject to this Agreement or by any other Transaction Document with all or any portion of the assets and liabilities of an Affected Entity; provided, however, that in no event may any Affected Entity (or the applicable Conduit Agent or Managing Agent on its behalf) with respect to any Conduit claim or receive reimbursement or compensation for amounts under this Section 10.4 (x) 10.5 that would result in exceed 2.00% per annum on 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 Group Purchase Limit for the related Committed Purchaser Group from the date such 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 Article IV this subsection, it shall promptly notify the Borrower of the event by reason of which it has become or will become so entitled; provided that any failure to give such notice shall not affect the rights to demand payment under this Agreement or (y) which were charged to, incurred or otherwise suffered by such section. If any Affected Entity (or the applicable Agent or Managing Agent on or before February 19, 2010. Amounts its behalf) requests compensation under this Section 10.4 may be demanded 10.5, then the Seller may, 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 its sole expense and effort, upon notice to such Affected Entity and its related Managing Agent, require the entire related Purchaser Group (but may not require less than all of the Purchasers and 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 their interests, rights and obligations under this Agreement to assignees that shall assume 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 this Section 10.4 an Assignment Agreement, of an amount equal to such Persons’s share of the Aggregate Capital and explaining the manner Yield owing to such Purchaser and all accrued but unpaid fees and other costs and expenses payable in which such amount was determined shall be delivered to 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 next Settlement Date following receipt respect of such notice.Purchaser Group’s share of the Purchaser Interests. (i) Article XII of the Purchase Agreement is hereby amended to add the following Section 12.3 thereto:

Accounting Based Consolidation Event. Upon demand by the related Conduit Co-Agent, Seller shall pay to such Conduit Co-Agent, for the benefit of the relevant Affected Entity, such amounts (without duplication of any amounts payable as described in Section 10.2 above) as such Affected Entity reasonably determines will compensate or reimburse such Affected Entity for any (i) fee, expense or increased cost charged to, incurred or otherwise 37 suffered by such Affected Entity, (ii) reduction in the rate of return on such Affected Entity’s capital or reduction in the amount of any sum received or receivable by such Affected Entity or (iii) internal capital charge or other imputed cost, in each case, as determined by such Affected Entity to be allocable to Seller or the transactions contemplated in this Agreement, in each case resulting from or in connection with the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit that are subject to this Agreement or any other Transaction Document with all or any portion of the assets and liabilities of an Affected Entity; provided, however, that in no event may any Affected Entity (or the applicable Conduit 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. 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 delivered to 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 next Settlement Date following receipt of such notice.

Accounting Based Consolidation Event. Upon demand by the related Conduit Managing Agent, Seller shall pay to such Conduit Managing Agent, for the benefit of the relevant Affected Entity, such amounts (without duplication of any amounts payable as described in Section 10.2 9.2 above) as such Affected Entity reasonably determines will compensate or reimburse such Affected Entity for any (i) fee, expense or increased cost charged to, incurred or otherwise 37 suffered by such Affected Entity, (ii) reduction in the rate of return on such Affected Entity’s capital or reduction in the amount of any sum received or receivable by such Affected Entity or (iii) internal capital charge or other imputed cost, in each case, as determined by such Affected Entity to be allocable to Seller or the transactions contemplated in this Agreement, in each case resulting from or in connection with the following (which shall constitute a “Consolidation Event”): the consolidation, for financial and/or regulatory accounting purposes, of all or any portion of the assets and liabilities of any Conduit Purchaser that are subject to this Agreement or any other Transaction Document with all or any portion of the assets and liabilities of an Affected Entity; 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 Conduit Managing 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) 9.5 which were charged to, incurred or otherwise suffered by such Affected Entity on or before February the later of (x) May 19, 20102010 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. Amounts Subject to the proviso in the preceding sentence, amounts under this Section 10.4 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 setting claiming compensation under this Section 9.5 shall be delivered to Seller and shall be conclusive absent manifest error; provided that such certificate (i) sets forth in reasonable detail the amount or amounts payable to such Affected Entity pursuant to this Section 10.4 and explaining 9.5, (ii) explains the manner in which such amount was determined shall be delivered to and (iii) states that the Seller and shall be conclusive absent manifest error. The Seller shall pay such applicable Affected Entity the amount as due on any such certificate on the next Settlement Date following receipt of such notice.has