Calculation Procedures Clause Samples

Calculation Procedures. For purposes of calculating the total number of shares of Common Stock available under this Plan for grants of Awards, (i) the grant of an Award of Options, Restricted Shares, SARs or a Performance Award shall be deemed to be equal to the maximum number of shares of Common Stock which may be issued under the Award, (ii) the total number of shares of Common Stock with respect to which Awards may be granted under this Plan shall be increased by the number of Restricted Shares issued under this Plan pursuant to the 2003 Exchange Offer (as defined in Section 8(b)) in exchange for surrendered options that were granted under other option plans of the Company or its Subsidiaries; and (iii) subject to the provisions of Sections 4(b) and 4(c), there shall again be available for Awards under this Plan all of the following: (A) shares of Common Stock represented by Awards which have been cancelled, forfeited, surrendered or terminated or which expire unexercised (other than Restricted Shares granted in the 2003 Exchange Offer in exchange for surrendered options that were granted under other option plans of the Company or its Subsidiaries); (B) the excess portion of variable Awards which become fixed at less than their maximum limitations; and (C) the number of shares of Common Stock delivered in full or partial payment of the exercise price of any Option granted under this Plan; provided, however, that shares so delivered by an Employee in full or partial payment of the exercise of his/her Option shall not reduce the number of Options granted to the Employee in any Plan Year for purposes of Section 4(c)(i); and provided further that in no event shall the aggregate number of shares issued or delivered pursuant to the exercise of Incentive Stock Options exceed 16,000,000 shares.”

Calculation Procedures. 5.1 Process for compensation calculation (a) IP OpCo shall within twenty (20) Business Days of the Discontinuation Date provide a written report to the Secretary of State and the Independent Technical Assessor setting out: (i) the Total Compensation Amount, including details and methodology of calculation of the Discontinuation Date Adjusted RCV, the Allowable Project Spend and any Additional Allowable Project Spend incurred between the end of the preceding Charging Year and the Discontinuation Date; (ii) the Senior Debt Liabilities and the Senior Debt Compensation as certified on behalf of the Secured Creditors pursuant to clause 9.6 of the Security Trust and Intercreditor Deed; (iii) the Equity Compensation payable pursuant to clause 5.4 (Calculation of Equity Compensation outside Special Administration), including details and methodology of calculation of the Residual Compensation Amount and the Base Case Equity Compensation Amount; and (iv) an updated Expenditure Forecast that is current as at the Discontinuation Date, taking into account the relevant event referred to in clause 3.1 which gave rise to the election to Discontinue; (b) the Independent Technical Assessor shall, within twenty (20) Business Days of the receipt of the written report provided by IP OpCo pursuant to clause 5.1(a), review and provide a written report to the Secretary of State and IP OpCo as to its verification of the Total Compensation Amount, including the Discontinuation Date Adjusted RCV, the Allowable Project Spend and any Additional Allowable Project Spend incurred between the end of the preceding Charging Year and the Discontinuation Date, the Senior Debt Liabilities, the Senior Debt Compensation and the Equity Compensation; (c) the Secretary of State shall by notice in writing, within twenty (20) Business Days of receipt of the report referred to in clause 5.1(b), confirm whether or not it agrees with the Total Compensation Amount, the Senior Debt Liabilities, the Senior Debt Compensation Amount and the Equity Compensation set out in such report and the report provided under clause 5.1(a), and, if not, set out the reasons for such disagreement and the amounts that the Secretary of State believes should be the Total Compensation Amount, the Senior Debt Liabilities, the Senior Debt Compensation Amount and the Equity Compensation; (d) within ten (10) Business Days of receipt of the notice under clause 5.1(c), IP OpCo shall confirm whether or not it agrees with the amounts n...

Calculation Procedures. This Section is intended for illustration ______________________ purposes only based on the assumptions set forth herein. (a) Calculation of Per Share Initial Stock Consideration: ____________________________________________________ i. Calculate Adjusted AUM as of the Effective Time. For purposes of illustration only, assume that the Adjusted AUM as of the Effective Time is $647,220,329. ii. Calculate the AUM Credit Percentage as of the Effective Time and Target AUM. For purposes of illustration only, assume that the Target AUM is $842,125,691. The AUM Credit Percentage is the Adjusted AUM divided by the Target AUM multiplied by .925, or 83.09%. (647,220,329/(842,125,691*.925)). iii. Calculate the Implied Company Ownership Percentage as of the Effective Time. The Implied Company Ownership Percentage is The AUM Credit Percentage as of the Effective Time multiplied by .51, or 42.37%. (83.09*.51). iv. Calculate the Pro Forma Total Shares as of the Effective Time. The Pro Forma Total Shares is the number of Non-Company Shares divided by one minus the Implied Company Ownership Percentage. For purposes of illustration only, assume that the number of Non-Company Shares is 8,739,021. The Pro Forma Total Shares is 15,165,174. (8,739,021/(1-.4237)).

Calculation Procedures. (a) Except as expressly provided herein, for purposes of calculating compliance with any test under this Agreement in connection with the acquisition or disposition of a Loan Asset or Permitted Investment, the settlement date (and not the trade date) with respect to any such Loan Asset or Permitted Investment under consideration for acquisition or disposition shall be used to determine whether such acquisition or disposition is permitted hereunder. (b) Except as expressly set forth herein, for purposes of calculating the Concentration Limits, the settlement date (and not the trade date) with respect to each Loan Asset shall be used for such calculation. (c) All determinations of the Concentration Limits shall be determined in good faith by the Servicer subject to the ability of the Administrative Agent to object to such determination. In the event the Administrative Agent objects to such calculation, the Administrative Agent and the Servicer shall work in good faith to determine the Concentration Limits. AmericasActive:18709990.5

Calculation Procedures. In connection with all calculations required to be made pursuant to this Agreement with respect to any payments on any other assets included in the Collateral, with respect to the sale of Collateral Loans, and with respect to the income that can be earned on any other amounts that may be received for deposit in the Collection Account, the provisions set forth in this Section 1.04 shall be applied. The provisions of this Section 1.04 shall be applicable to any determination or calculation that is covered by this Section 1.04, whether or not reference is specifically made to Section 1.04, unless some other method of calculation or determination is expressly specified in the particular provision. (a) References in the Priority of Payments to calculations made on a “pro forma basis” shall mean such calculations after giving effect to all payments, in accordance with the Priority of Payments, that precede (in priority of payment) or include the clause in which such calculation is made. (b) For purposes of calculating the Excess Concentration Amount, in both the numerator and the denominator of any component of the Excess Concentration Amount, Defaulted Collateral Loans and Ineligible Collateral Loans will be treated as having a value equal to zero. (c) The Excess Concentration Amount will be determined in the way that produces the lowest Class A Borrowing Base or Class B Borrowing Base at the time of determination, it being understood that a Collateral Loan that falls into more than one such category of Collateral Loans will be deemed, solely for purposes of such determinations, to fall only into the category that produces the lowest Class A Borrowing Base or Class B Borrowing Base at such time (without duplication). (d) References in this Agreement to the Borrower’s “purchase” or “acquisition” of a Collateral Loan include references to the Borrower’s acquisition of such Collateral Loan by way of a sale and/or contribution from the Original Seller. (e) For the purposes of calculating the Excess Concentration Amount, the Loan Delinquency Ratio, the Cumulative Default Ratio and the Net Interest Margin all calculations will be rounded to the nearest 0.01%. (f) All monetary calculations under this Agreement shall be in Dollars.

Calculation Procedures. All calculations and determinations required under Section 1 of this Agreement shall be made in writing in good faith by a “Big 4” or other nationally recognized independent accounting firm reasonably acceptable to the Company and the Executive (the “Accounting Firm”), which shall provide detailed supporting calculations to the Company and the Executive. The Company and the Executive shall provide the Accounting Firm with such information and documents as the Accounting Firm may reasonably request in order to make any such calculation or determination. The Company and the Executive also agree to cooperate generally and in good faith regarding such determinations. For purposes of making the calculations and determinations required by this Agreement, the Accounting Firm may rely on reasonable, good faith assumptions and approximations concerning applicable taxes and may rely on reasonable, good faith interpretations concerning the application of Section 280G of the Code and Section 4999 of the Code. For purposes of Section 1, the Accounting Firm shall assume that the Executive pays federal income tax at the highest marginal rate of federal income taxation in the applicable year and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence in the applicable year, net of the maximum reduction in federal income taxes that could be obtained from deduction of such state and local taxes. The Accounting Firm’s determinations shall be final and binding on the Company and the Executive. The Company shall be responsible for all fees and expenses incurred by the Accounting Firm in connection with the calculations and determinations required by Section 1 of this Agreement.

Calculation Procedures. Calculation of a Portfolio’s output for purposes of the Output Guaranty, Existing System Portfolio Warranty and New System Portfolio Warranty shall be performed as follows: (a) The Existing System Portfolio’s Actual kWh produced in any period shall be equal to the product of (x) the Actual kWh produced by the Project in the aggregate during such period, as measured by the Facility Meters, multiplied by (y) a fraction, the numerator of which is the Actual kWh produced by the Existing Systems in the aggregate during such period, as measured by the Bloom System Meters installed in connection with such Existing Systems, and the denominator of which is the Actual kWh produced by all Bloom Systems constituting the Project in the aggregate during such period as measured by the Bloom System Meters installed in connection with such Bloom Systems. (b) The New System Portfolio’s Actual kWh produced in any period shall be equal to the product of (x) the Actual kWh produced by the Project in the aggregate during such period, as measured by the Facility Meters, multiplied by (y) a fraction, the numerator of which is the Actual kWh produced by the New Systems in the aggregate during such period, as measured by the Bloom System Meters installed in connection with such New Systems, and the denominator of which is the Actual kWh produced by all Bloom Systems constituting the Project in the aggregate during such period as measured by the Bloom System Meters installed in connection with such Bloom Systems. (c) Operator hereby represents and warrants to Owner that each Bloom System Meter (including the Bloom System Meter in each Existing System and each New System) was designed to satisfy the same specifications, including accuracy of measurement of the Actual kWh produced by the applicable Bloom System.

Calculation Procedures. (a) Except as expressly provided herein, for purposes of calculating compliance with any test under this Agreement in connection with the acquisition or disposition of a Loan Asset or Permitted Investment, the trade date (and not the settlement date) with respect to any such Loan Asset or Permitted Investment under consideration for acquisition or disposition shall be used to determine whether such acquisition or disposition is permitted hereunder; provided that (i) for purposes of Section 2.01(a), (x) no asset shall be included in the Borrowing Base as an Eligible Loan Asset to the extent the settlement date has not occurred and (y) all Advances requested to be made on any Advance Date plus the balance of all unfunded Advances to be made in connection with the Borrower’s purchase of previously requested (and approved, if applicable) Eligible Loan Assets will be treated as having been made and (ii) any Loan Asset that has not settled within 45 days of the related trade date shall have an Assigned Value of zero until such settlement occurs. (b) Except as expressly set forth herein and subject to the proviso in clause (a) above, for purposes of calculating the Concentration Limits, the trade date (and not the settlement date) with respect to each Loan Asset shall be used for such calculation. (c) All determinations of the Concentration Limits shall be determined in good faith by the Servicer subject to the ability of the Administrative Agent to object to such determination. In the event the Administrative Agent objects to such calculation, the Administrative Agent and the Servicer shall work in good faith to determine the Concentration Limits.

Calculation Procedures. For purposes of calculating the total number of shares of Common Stock available under this Plan for grants of Options, (i) the grant of an Option shall be deemed to be equal to the maximum number of shares of Common Stock which may be issued under the Option and (ii) subject to the provisions of Sections 3(b) and 3(c), there shall again be available for Options under this Plan all of the following: (A) shares of Common Stock represented by Options which have been cancelled, forfeited, surrendered or terminated or which expire unexercised; (B) the number of shares of Common Stock delivered in full or partial payment of the exercise price of any Option granted under this Plan; provided, however, that shares so delivered by an Outside Director in full or partial payment of the exercise of his/her Option shall not reduce the number of Options granted to the Outside Director in any Plan Year for purposes of Section 3(c).