Common use of Non-Utilization Fee Clause in Contracts

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization during the preceding quarter (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price (the “Utilization Percentage”) is less than the Utilization Threshold, Seller shall pay to Buyer the Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which the Utilization Percentage in such period is greater than or equal to the Utilization Threshold. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization during the preceding quarter (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price Committed Amount (the “Utilization Percentage”) is less than the Utilization Threshold30%, Seller shall pay to Buyer on the Payment Date on or immediately succeeding such date of calculation or Termination Date, as applicable, a non-utilization fee equal to the product of (i) 0.15% per annum, times (ii) the Committed Amount, times (iii) 1 minus the Utilization Percentage (the “Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which Fee”). If the Utilization Percentage in such any period is greater than or equal to the 30%, Buyer shall not be paid a Non-Utilization ThresholdFee for that period. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to any Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization during the preceding quarter (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller Sellers by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price Committed Amount (the “Utilization Percentage”) is less than the Utilization Threshold, Seller shall pay to Buyer the Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller Sellers shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which the Utilization Percentage in such period is greater than or equal to the Utilization Threshold. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to a Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization during the preceding quarter (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price Committed Amount (the “Utilization Percentage”) is less than the Utilization Threshold, Threshold Seller shall pay to Buyer , the Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which the Utilization Percentage in such period is greater than or equal to the Utilization Threshold. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly monthly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, the Buyer shall determine the average quarterly monthly utilization during the preceding quarter calendar month (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by the Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If period (such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price (period, the “Utilization PercentageAmount”) is less than ). With respect to each period, the Utilization Threshold, Seller shall pay to the Buyer on the next Repurchase Date or the Termination Date, as applicable, a non-utilization fee equal to the product of (i) ****, times (ii) the difference between the Committed Amount and the Utilization Amount, times (iii) the amount set forth in the column “Asset/Commitment LP” corresponding to the related calendar month, as set forth on the Asset/Commitment LP Schedule attached hereto as Exhibit L, times (iv) ****; provided, however, that for each of the months of January 2011, February 2011 and March 2011, the Asset/Commitment LP used to calculate the Non-Utilization Fee due shall be determined as an average of all of the Asset/Commitment LP amounts for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which the Utilization Percentage in such period is greater than or equal to the Utilization Threshold2010 calendar year. All payments shall be made to the Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. The Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization during the preceding quarter (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price Committed Amount (the ““ Utilization PercentagePercentage ”) is less than the Utilization Threshold30%, Seller shall pay to Buyer on the Payment Date on or immediately succeeding such date of calculation or Termination Date, as applicable, a non-utilization fee equal to the product of (i) 0.15% per annum, times (ii) the 4 [***] INDICATES MATERIAL THAT HAS BEEN OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED MATERIAL HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Committed Amount, times (iii) 1 minus the Utilization Percentage (the “ Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which ”). If the Utilization Percentage in such any period is greater than or equal to the 30%, Buyer shall not be paid a Non-Utilization ThresholdFee for that period. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to any Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization of the facility during the preceding calendar quarter (or portion thereof with respect to (i) the first utilization calculation, during the period from the Effective Date to the calculation date, or (ii) with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price (the “Utilization Percentage”) is less than the Utilization Threshold50%, Seller shall pay to Buyer on the Repurchase Dates in occurring in the last month of each calendar quarter or the Termination Date (as applicable), the Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side LetterFee; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which the Utilization Percentage in such period is greater than or equal to the Utilization Threshold50%. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to any Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization during the preceding quarter (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price Committed Amount (the “Utilization Percentage”) is less than the Utilization Threshold30%, Seller shall pay to Buyer on the Payment Date on or immediately succeeding such date of calculation or Termination Date, as 28 applicable, a non-utilization fee equal to the product of (i) 0.15% per annum, times (ii) the Committed Amount, times (iii) 1 minus the Utilization Percentage (the “Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which Fee”). If the Utilization Percentage in such any period is greater than or equal to the 30%, Buyer shall not be paid a Non-Utilization ThresholdFee for that period. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to any Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization during the preceding quarter (or with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price Committed Amount (the “Utilization Percentage”) is less than the Utilization Threshold30%, Seller shall pay to Buyer on the Payment Date on or immediately succeeding such date of calculation or Termination Date, as applicable, a non-utilization fee equal to the product of (i) [***] per annum, times (ii) the Committed Amount, times (iii) 1 minus the Utilization Percentage (the “Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side Letter; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which Fee”). If the Utilization Percentage in such any period is greater than or equal to the 30%, Buyer shall not be paid a Non-Utilization ThresholdFee for that period. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to any Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.

Non-Utilization Fee. On a quarterly basis (beginning on the date that is sixty (60) days following the Effective Date) and on the Termination Date, Buyer shall determine the average quarterly utilization of the facility during the preceding calendar quarter (or portion thereof with respect to (i) the first utilization calculation, during the period from the Effective Date to the calculation date, or (ii) with respect to the Termination Date, during the period from the date through which the last non-utilization fee calculation has been made to the Termination Date) by Seller by dividing (a) the sum of the Purchase Prices outstanding on each day during such period, by (b) the number of days in such period. If such average amount determined for any period as a percentage of the Maximum Aggregate Purchase Price Committed Amount (the “Utilization Percentage”) is less than the Utilization Threshold75%, Seller shall pay to Buyer on the Repurchase Dates in occurring in the last month of each calendar quarter or the Termination Date (as applicable), the Non-Utilization Fee due for such related period on the applicable dates specified in the Pricing Side LetterFee; provided that Seller shall not be obligated to pay any Non-Utilization Fee to Buyer for any period with respect to which the Utilization Percentage in such period is greater than or equal to the Utilization Threshold75%. All payments shall be made to Buyer in Dollars, in immediately available funds, without deduction, setoff or counterclaim. Buyer may, in its sole discretion, net such Non-Utilization Fee from the proceeds of any Purchase Price paid to any Seller. Each payment of the Non-Utilization Fee is and shall be deemed to be fully earned and non-refundable when paid.”