Common use of Determination of Rates Clause in Contracts

Determination of Rates. (a) All computations of interest and of any fee payable hereunder or under any other Operative Document (other than computations made for purposes of determining the Maximum Rate) shall be made by the Agent on the basis of a year of 360 days (365 days in the case of the computation of interest if the Applicable Rate is determined by reference to the Base Rate), for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fee is payable. Each determination by the Agent of an interest rate hereunder or under any other Operative Document shall be conclusive and binding for all purposes, absent manifest error, but no such interest rate shall ever exceed the Maximum Rate. (b) The Company shall notify the Agent two Business Days before each Interest Setting Date as to the Interest Period or Periods selected by the Company subject to the limitations set forth in the definition of Interest Period. On each Interest Setting Date, the Agent shall calculate the LIBO Rate. Upon determination of the LIBO Rate on the Interest Setting Date, the Agent shall promptly notify the Purchasers and the Trustee of the LIBO Rate for the applicable Interest Period. (c) In the event, and on each occasion, that on the Interest Setting Date the Agent shall have received notice from any Note Purchaser of such Purchaser's determination (which determination shall be conclusive and binding upon the Trustees and the Company absent manifest error) (i) that United States dollar deposits in the amount of the principal of and for the relevant Interest Period for such Purchaser's Notes are not generally available in the London interbank market or (ii) that the rate at which such dollar deposits are being offered would not adequately and fairly reflect the cost to such Purchaser of making or maintaining the principal of such Notes during the relevant Interest Period if the Applicable Rate were to be determined by reference to the LIBO Rate, then the Agent shall, as soon as practicable thereafter, give written, telex or facsimile notice of such determination to the Company, the Trustee and the other Purchasers and in the case of a determination pursuant to clause (ii) above only, such Purchaser shall deliver a certificate to the Agent and the Company describing in reasonable detail the calculations of such Purchaser pursuant to which it made such determination and stating that such Purchaser is making such determination on a basis consistent with its treatment of other similar situations, and thereafter the Applicable Rate on the Notes held only by such Purchaser shall be determined by reference to an appropriate substitute rate to be negotiated in good faith by the Company, the Agent and such Purchaser as promptly as practicable or, failing agreement on an appropriate substitute rate, the Base Rate, but in no event to exceed the Maximum Rate, until the circumstances giving rise to such notice no longer exist. (d) In the event, and on each occasion, that on the Interest Setting Date the Agent shall have determined (which determination shall be conclusive and binding upon the Company absent manifest error) that reasonable means do not exist for ascertaining the LIBO Rate for purposes of determining the Applicable Rate, then the Agent shall, as soon as practicable thereafter, give written, telex or facsimile notice of such determination to the Company, the Purchasers and the Trustee, and thereafter the Applicable Rate on the Instruments shall be determined by reference to an appropriate substitute rate to be negotiated in good faith by the Company, the Agent and the Purchasers (the "Substitute Rate") as promptly as practicable or, failing agreement on the Substitute Rate, the Base Rate, but in no event to exceed the Maximum Rate, until the circumstances giving rise to such notice no longer exist. (e) In the event that, subsequent to the Financing Closing Date, the introduction of or any change in any United States or foreign Law, or the interpretation or application thereof, makes it unlawful, or any central bank or other governmental authority having jurisdiction asserts that it is unlawful, for any Purchaser (including any branch, subsidiary or Affiliate office of such Purchaser from which the Instruments are actually funded or at which the Instruments are actually maintained or held) to find or maintain and/or to continue to hold the Instruments if the Applicable Rate thereon is determined with respect to the LIBO Rate, then the Applicable Rate on such Instruments shall be converted automatically to the Base Rate plus the Applicable Margin (but in no event to exceed the Maximum Rate) on and after the last day of the applicable Interest Period or on and after such earlier date as may be required by such Law. As soon as practicable thereafter, the Company, the Agent and the Purchasers shall negotiate a Substitute Rate. (f) Upon the occurrence and during the continuance of an Event of Default arising from the nonpayment of the Company's obligations hereunder, the Applicable Rate on the Instruments shall automatically be converted to the Base Rate.

Determination of Rates. (a) The Company shall select whether the Applicable Rate will be determined by reference to the LIBO Rate or the Base Rate by giving written notice of that determination to the Trustee and the Agent three Business 37 42 Days (or one Business Day if the Company selects the Base Rate) before each Interest Setting Date. If the Applicable Rate is to be determined by reference to the LIBO Rate, such notice shall also specify the Interest Period or Periods elected by the Company as to which the LIBO Rate shall apply. As to any portion of the principal of the Instruments which bears interest determined by reference to the LIBO Rate, the Company may elect to Convert the Applicable Rate with respect thereto to the Base Rate, or elect a different LIBO Interest Period or Periods with respect thereto, only on the last day of the then current Interest Period applicable thereto. As to any portion of the principal of the Instruments which bears interest determined by reference to the Base Rate, the Company may elect to Convert the Applicable Rate with respect thereto to the LIBO Rate on any Business Day, subject to the aforesaid notice requirement. Any Conversion of Base Rate Fundings into LIBO Rate Fundings shall be in an amount not less than $10,000,000. In the case of any Conversion of Base Rate Fundings into LIBO Rate Fundings, the Company shall indemnify each Purchaser against any loss, cost or expense incurred by such Purchaser as a result of any revocation of such notice of Conversion, including, without limitation, any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Purchaser to fund the Funding to be Converted by such Purchaser as a result of such revocation. (b) All computations of interest and of any fee payable hereunder or under any other Operative Document (other than computations made for purposes of determining the Maximum Rate) shall be made by the Agent on the basis of a year of 360 days (365 days in the case of the computation of interest if the Applicable Rate is determined by reference to the Base Rate), for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fee is payable. Each determination by the Agent of an interest rate hereunder or under any other Operative Document shall be conclusive and binding for all purposes, absent manifest error, but no such interest rate shall ever exceed the Maximum Rate. (bc) The Company shall notify Each Reference Bank agrees to furnish to the Agent two Business Days before timely information for the purpose of determining each Interest Setting Date as LIBO Rate. If any one or more of the Reference Banks shall not furnish such timely information to the Interest Period or Periods selected by Agent for the Company subject to the limitations set forth in the definition purpose of Interest Period. On each Interest Setting Datedetermining any such interest rate, the Agent shall calculate the LIBO Rate. Upon determination of the LIBO Rate determine such interest rate on the Interest Setting Date, the Agent shall promptly notify the Purchasers and the Trustee basis of the LIBO Rate for the applicable Interest Period. (c) In the event, and on each occasion, that on the Interest Setting Date the Agent shall have received notice from any Note Purchaser of such Purchaser's determination (which determination shall be conclusive and binding upon the Trustees and the Company absent manifest error) (i) that United States dollar deposits in the amount of the principal of and for the relevant Interest Period for such Purchaser's Notes are not generally available in the London interbank market or (ii) that the rate at which such dollar deposits are being offered would not adequately and fairly reflect the cost to such Purchaser of making or maintaining the principal of such Notes during the relevant Interest Period if the Applicable Rate were to be determined by reference to the LIBO Rate, then the Agent shall, as soon as practicable thereafter, give written, telex or facsimile notice of such determination to the Company, the Trustee and the other Purchasers and in the case of a determination pursuant to clause (ii) above only, such Purchaser shall deliver a certificate to the Agent and the Company describing in reasonable detail the calculations of such Purchaser pursuant to which it made such determination and stating that such Purchaser is making such determination on a basis consistent with its treatment of other similar situations, and thereafter the Applicable Rate on the Notes held only by such Purchaser shall be determined by reference to an appropriate substitute rate to be negotiated in good faith by the Company, the Agent and such Purchaser as promptly as practicable or, failing agreement on an appropriate substitute rate, the Base Rate, but in no event to exceed the Maximum Rate, until the circumstances giving rise to such notice no longer exist. (d) In the event, and on each occasion, that on the Interest Setting Date the Agent shall have determined (which determination shall be conclusive and binding upon the Company absent manifest error) that reasonable means do not exist for ascertaining the LIBO Rate for purposes of determining the Applicable Rate, then the Agent shall, as soon as practicable thereafter, give written, telex or facsimile notice of such determination to the Company, the Purchasers and the Trustee, and thereafter the Applicable Rate on the Instruments shall be determined by reference to an appropriate substitute rate to be negotiated in good faith by the Company, the Agent and the Purchasers (the "Substitute Rate") as promptly as practicable or, failing agreement on the Substitute Rate, the Base Rate, but in no event to exceed the Maximum Rate, until the circumstances giving rise to such notice no longer exist. (e) In the event that, subsequent to the Financing Closing Date, the introduction of or any change in any United States or foreign Law, or the interpretation or application thereof, makes it unlawful, or any central bank or other governmental authority having jurisdiction asserts that it is unlawful, for any Purchaser (including any branch, subsidiary or Affiliate office of such Purchaser from which the Instruments are actually funded or at which the Instruments are actually maintained or held) to find or maintain and/or to continue to hold the Instruments if the Applicable Rate thereon is determined with respect to the LIBO Rate, then the Applicable Rate on such Instruments shall be converted automatically to the Base Rate plus the Applicable Margin (but in no event to exceed the Maximum Rate) on and after the last day of the applicable Interest Period or on and after such earlier date as may be required by such Law. As soon as practicable thereafter, the Company, the Agent and the Purchasers shall negotiate a Substitute Rate. (f) Upon the occurrence and during the continuance of an Event of Default arising from the nonpayment of the Company's obligations hereunder, the Applicable Rate on the Instruments shall automatically be converted to the Base Rate.timely

Determination of Rates. (a) All computations of interest and of any fee payable hereunder or under any other Operative Document (other than computations made for purposes of determining the Maximum Rate) shall be made by the Agent on the basis of a year of 360 days (365 days in the case of the computation of interest if the Applicable Rate is determined by reference to the Base Rate), for the actual number of days (including the first day but excluding the last day) occurring in the period for which such interest or fee is payable. Each determination by the Agent of an interest rate hereunder or under any other Operative Document shall be conclusive and binding for all purposes, absent manifest error, but no such interest rate shall ever exceed the Maximum Rate. (b) The Company shall notify the Agent two Business Days before each Interest Setting Date as to the Interest Period or Periods selected by the Company subject to the limitations set forth in the definition of Interest Period. On each Interest Setting Date, the Agent shall calculate the LIBO Rate. Upon determination of the LIBO Rate on the Interest Setting Date, the Agent shall promptly notify the Purchasers and the Trustee of the LIBO Rate for the applicable Interest Period. (c) In the event, and on each occasion, that on the Interest Setting Date the Agent shall have received notice from any Note Purchaser of such Purchaser's determination (which determination shall be conclusive and binding upon the Trustees and the Company absent manifest error) (i) that United States dollar deposits in the amount of the principal of and for the relevant Interest Period for such Purchaser's Notes are not generally available in the London interbank market or (ii) that the rate at which such dollar deposits are being offered would not adequately and fairly reflect the cost to such Purchaser of making or maintaining the principal of such Notes during the relevant Interest Period if the Applicable Rate were to be determined by reference to the LIBO Rate, then the Agent shall, as soon as practicable thereafter, give written, telex or facsimile notice of such determination to the Company, the Trustee and the other Purchasers and in the case of a determination pursuant to clause (ii) above only, such Purchaser shall deliver a certificate to the Agent and the Company describing in reasonable detail the calculations of such Purchaser pursuant to which it made such determination and stating that such Purchaser is making such determination on a basis consistent with its treatment of other similar situations, and thereafter the Applicable Rate on the Notes held only by such Purchaser shall be determined by reference to an appropriate substitute rate to be negotiated in good faith by the Company, the Agent and such Purchaser as promptly as practicable or, failing agreement on an appropriate substitute rate, the Base Rate, but in no event to exceed the Maximum Rate, until the circumstances giving rise to such notice no longer exist. (d) In the event, and on each occasion, that on the Interest Setting Date the Agent shall have determined (which determination shall be conclusive and binding upon the Company absent manifest error) that reasonable means do not exist for ascertaining the LIBO Rate for purposes of determining the Applicable Rate, then the Agent shall, as soon as practicable thereafter, give written, telex or facsimile notice of such determination to the Company, the Purchasers and the Trustee, and thereafter the Applicable Rate on the Instruments shall be determined by reference to an appropriate substitute rate to be negotiated in good faith by the Company, the Agent and the Purchasers (the "Substitute RateSUBSTITUTE RATE") as promptly as practicable or, failing agreement on the Substitute Rate, the Base Rate, but in no event to exceed the Maximum Rate, until the circumstances giving rise to such notice no longer exist. (e) In the event that, subsequent to the Financing Closing Date, the introduction of or any change in any United States or foreign Law, or the interpretation or application thereof, makes it unlawful, or any central bank or other governmental authority having jurisdiction asserts that it is unlawful, for any Purchaser (including any branch, subsidiary or Affiliate office of such Purchaser from which the Instruments are actually funded or at which the Instruments are actually maintained or held) to find fund or maintain and/or to continue to hold the Instruments if the Applicable Rate thereon is determined with respect to the LIBO Rate, then the Applicable Rate on such Instruments shall be converted automatically to the Base Rate plus the Applicable Margin (but in no event to exceed the Maximum Rate) on and after the last day of the applicable Interest Period or on and after such earlier date as may be required by such Law. As soon as practicable thereafter, the Company, the Agent and the Purchasers shall negotiate a Substitute Rate. (f) Upon the occurrence and during the continuance of an Event of Default arising from the nonpayment of the Company's obligations hereunder, the Applicable Rate on the Instruments shall automatically be converted to the Base Rate.