Common use of EBITDA Calculation Clause in Contracts

EBITDA Calculation. Within 30 days following the delivery of a ROFR Notice, TRG Call Option Notice or Anywhere Call Option Notice or the Mandatory Redemption Date, as applicable, the Board and the Board of Managers of Over Under Title LLC shall deliver to the TRG Member a proposed calculation of the Company EBITDA and the TitleOne EBITDA, as applicable, which shall be determined by the Board and the Board of Managers of Over Under Title LLC, as applicable, in good faith using the same valuation methodologies and accounting principles, practices, procedures, policies and methods used in the determination of the purchase price under the TRG Company Subscription Agreement and TRG TitleOne Subscription Agreement, as applicable (the “Valuation Methodologies”), together with such reasonable documentation (including supporting calculations and schedules) used by the Board and the Board of Managers of Over Under Title LLC in connection with the preparation of such calculations. Unless the TRG Member has delivered to the Board a written objection to, and alternative calculation of, such proposed Company EBITDA and TitleOne EBITDA within 15 days after delivery thereof (an “Objection Notice”), the Company EBITDA and the TitleOne EBITDA proposed by the Board and the Board of Managers of Over Under Title LLC shall be final and binding on the Members. During such 15-day period, the TRG Member and/or its accountants shall have reasonable access to the books and records of the Company and Over Under Title LLC and other documentation relating to the calculations of the Company EBITDA and the TitleOne EBITDA as the TRG Member may reasonably request and to the extent not unreasonably interfering with the business of the Company or of Over Under Title LLC. If the TRG Member delivers an Objection Notice within such 15-day period, the Anywhere Member and the TRG Member shall negotiate in good faith to resolve such objections within twenty (20) days after the delivery of the Objection Notice (the “Resolution Period”). If the Anywhere Member and the TRG Member are unable to resolve all such disagreements on or before the expiration of the Resolution Period, the TRG Member and the Anywhere Member shall promptly retain and enter into an engagement letter with the Appraiser within ten (10) days following the expiration of the Resolution Period to resolve all such disagreements, who shall adjudicate only those items still in dispute. The Appraiser shall offer the TRG Member and the Anywhere Member the opportunity to provide written submissions regarding their positions on the disputed matters, which written submissions shall be provided to the Appraiser, if at all, no later than ten (10) Business Days after the date the Appraiser was retained to resolve the disputed matters. The Appraiser’s determination will be based in accordance with the Valuation Methodologies and the guidelines and procedures set forth in this Agreement. Neither the TRG Member (or any of its Affiliates or representatives), nor the Anywhere Member (or any of its Affiliates or representatives, including the Company) will engage in any ex parte communications with the Appraiser. The Appraiser shall deliver a written report resolving only the disputed matters and setting forth the basis for such resolution within thirty (30) days following the referral of the disputed matters to the Appraiser. In preparing its report, the Appraiser’s determination as to such items still in dispute shall not be more beneficial to the TRG Member or the Anywhere Member than the determination of that item in the Objection Notice or proposed calculations delivered to the TRG Member by the Board and the Board of Managers of Over Under Title LLC (as applicable). The Anywhere Member and the TRG Member shall cooperate in good faith with the Appraiser in connection with the determination of the Company EBITDA and the TitleOne EBITDA and provide all such data and information as may be reasonably requested by the Appraiser in connection therewith. The determination of the Appraiser shall be made within thirty (30) days following the referral of the disputed matters to the Appraiser, and absent any manifest error or fraud, such determination shall be final and binding on the parties. The Appraiser will act as an expert and not an arbitrator and will determine only those unresolved disputed items that have been submitted to the Appraiser by the parties. Any retainer and fees, costs and expenses of the Appraiser shall be borne by the TRG Member and the Company in inverse proportion to the relative amounts of the disputed amount determined to be for the account the TRG Member and the Company, respectively.

EBITDA Calculation. Within For the purposes of calculating the Company's EBITDA pursuant to this Article 13, the financial statements of the Company will be prepared on an accrual basis in accordance with GAAP under the direction of GSE, and the Purchaser shall operate the Company fairly, in good faith, consistent with past practices, using its commercially reasonable efforts to achieve results that will enable the Seller to realize the full Option Purchase Price. (a) Whenever an EBITDA calculation is required by this Article 13, GSE shall prepare and deliver to all Members a written statement (in each case, a "Calculation Statement"), within such time frames as may be specified in this Article 13, or if no time frame is provided, within 30 days following after the delivery end of a ROFR Noticethe period for which the Calculation Statement is to be provided, TRG Call Option Notice setting forth in reasonable detail its determination of EBITDA or Anywhere Call Option Notice or the Mandatory Redemption DateAverage EBITDA, as applicablethe case may be, for the Board and relevant period or periods (the Board "EBITDA Calculation") and, where a determination of Managers of Over Under Title LLC shall deliver to the TRG Member a proposed Option Purchase Price is required, including its calculation of the Company Option Purchase Price (the "Price Calculation"). (i) ▇▇▇▇ shall have 60 days after receipt of the Calculation Statement (the "Review Period") to review the Calculation Statement, and the EBITDA Calculation and Price Calculation, as the case may be, set forth therein. During the Review Period, ▇▇▇▇ shall have the right to inspect the Company's books and records during normal business hours at the Company's offices, upon reasonable prior notice and solely for purposes reasonably related to the determinations of EBITDA and the TitleOne EBITDAresulting EBITDA Calculation and Price Calculation, as applicablethe case may be. (ii) Prior to the expiration of the Review Period, which ▇▇▇▇ ▇▇▇ object to the EBITDA Calculation and Price Calculation, as the case may be, set forth in the Calculation Statement by delivering a written notice of objection (a "Calculation Objection Notice") to GSE. Any Calculation Objection Notice shall specify the items in the applicable EBITDA Calculation and Price Calculation, as the case may be, disputed by ▇▇▇▇ and shall describe in reasonable detail the basis for such objection, as well as the amount in dispute, including any objection, where ▇▇▇▇ is the Seller, to GSE's compliance with the first sentence of this Section 13.4. ▇▇▇▇ shall be determined by permitted to make and retain copies of the Board Company's books and records which relate to the Board reason(s) why ▇▇▇▇ submitted his Calculation Objection Notice. Where GSE is the Seller, GSE may, during the Review Period, object to Dale's compliance with the first sentence of Managers this Section 13.4. (iii) If ▇▇▇▇ fails to deliver a Calculation Objection Notice to GSE prior to the expiration of Over Under Title LLCthe Review Period, then the EBITDA Calculation and Price Calculation, as applicablethe case may be, in good faith using the same valuation methodologies and accounting principles, practices, procedures, policies and methods used set forth in the determination of the purchase price under the TRG Company Subscription Agreement and TRG TitleOne Subscription Agreement, as applicable (the “Valuation Methodologies”), together with such reasonable documentation (including supporting calculations and schedules) used by the Board and the Board of Managers of Over Under Title LLC in connection with the preparation of such calculations. Unless the TRG Member has delivered to the Board a written objection to, and alternative calculation of, such proposed Company EBITDA and TitleOne EBITDA within 15 days after delivery thereof (an “Objection Notice”), the Company EBITDA and the TitleOne EBITDA proposed by the Board and the Board of Managers of Over Under Title LLC Calculation Statement shall be final and binding on the Members. During such 15-day periodparties hereto. (iv) If ▇▇▇▇ timely deliver a Calculation Objection Notice, the TRG Member and/or its accountants ▇▇▇▇ and GSE shall have reasonable access to the books negotiate, reasonably and records of the Company and Over Under Title LLC and other documentation relating to the calculations of the Company EBITDA and the TitleOne EBITDA as the TRG Member may reasonably request and to the extent not unreasonably interfering with the business of the Company or of Over Under Title LLC. If the TRG Member delivers an Objection Notice within such 15-day period, the Anywhere Member and the TRG Member shall negotiate in good faith to resolve such objections within twenty (20) days after the delivery of the Objection Notice (the “Resolution Period”). If the Anywhere Member and the TRG Member are unable to resolve all such disagreements on or before the expiration of the Resolution Periodfaith, the TRG Member and the Anywhere Member shall promptly retain and enter into in an engagement letter with the Appraiser within ten (10) days following the expiration of the Resolution Period to resolve all such disagreements, who shall adjudicate only those items still in dispute. The Appraiser shall offer the TRG Member and the Anywhere Member the opportunity to provide written submissions regarding their positions on the disputed matters, which written submissions shall be provided to the Appraiser, if at all, no later than ten (10) Business Days after the date the Appraiser was retained attempt to resolve the disputed mattersitems and agree upon the resulting amount of the EBITDA and the EBITDA Calculation and Price Calculation, as the case may be, for the applicable time period. If GSE and ▇▇▇▇ are unable to reach agreement within 10 days after such a Calculation Objection Notice has been given, all unresolved disputed items shall be promptly referred to an impartial nationally recognized firm of independent certified public accountants, other than GSE's accountants or Dale's or the Company's accountants, appointed by mutual agreement of ▇▇▇▇ and GSE (the "Independent Accountant"). The Appraiser’s determination will Independent Accountant shall be based directed to render a written report on the unresolved disputed items with respect to the applicable EBITDA Calculation and Price Calculation, as the case may be, as promptly as practicable, but in accordance with no event greater than 10 days after such submission to the Valuation Methodologies Independent Accountant, and the guidelines and procedures to resolve only those unresolved disputed items set forth in this Agreementthe Calculation Objection Notice. Neither If unresolved disputed items are submitted to the TRG Member (or any of its Affiliates or representatives)Independent Accountant, nor GSE and ▇▇▇▇ shall each furnish to the Anywhere Member (or any of its Affiliates or representativesIndependent Accountant such work papers, including schedules and other documents and information relating to the Company) will engage in any ex parte communications with unresolved disputed items as the AppraiserIndependent Accountant may reasonably request. The Appraiser Independent Accountant shall deliver a written report resolving only resolve the disputed matters items based solely on the applicable definitions and setting forth other terms in this Agreement and the basis for such presentations by GSE and ▇▇▇▇, and not by independent review. (v) The resolution within thirty (30) days following the referral of the disputed matters to dispute and the Appraiser. In preparing its reportEBITDA Calculation and Price Calculation, as the Appraiser’s determination as to such items still in dispute shall not be more beneficial to case may be, that is the TRG Member or subject of the Anywhere Member than the determination of that item in the applicable Calculation Objection Notice or proposed calculations delivered to the TRG Member by the Board and the Board of Managers of Over Under Title LLC (as applicable). The Anywhere Member and the TRG Member shall cooperate in good faith with the Appraiser in connection with the determination of the Company EBITDA and the TitleOne EBITDA and provide all such data and information as may be reasonably requested by the Appraiser in connection therewith. The determination of the Appraiser shall be made within thirty (30) days following the referral of the disputed matters to the Appraiser, and absent any manifest error or fraud, such determination Independent Accountant shall be final and binding on the partiesparties upon receipt of the Independent Accountant's written report. The Appraiser will act as an expert and not an arbitrator and will determine only those unresolved disputed items that have been submitted to the Appraiser by the parties. Any retainer and fees, costs fees and expenses of the Appraiser Independent Accountant shall be borne by the TRG Member GSE and the Company ▇▇▇▇ in inverse proportion to the relative amounts by which their respective calculations of EBITDA differ from EBITDA as finally determined by the disputed Independent Accountant. (c) Any amount determined of Option Purchase Price that GSE, as Purchaser, is required to pay to Seller pursuant to Section 13.3(b)(i) or (ii), shall be paid in full, in cash by wire transfer of immediately available funds, no later than 10 Business Days following the date upon which the determination of EBITDA for the applicable calendar year becomes final and binding upon the parties as provided in Section 13.4 (including any final resolution of any dispute raised by Seller in a Calculation Objection Notice). (d) GSE shall have the right to withhold and set off against any amount otherwise due to be for paid pursuant to this Section any Losses which it may suffer as a result of any breach of this Agreement by ▇▇▇▇ from and after the account the TRG Member and the Company, respectivelyOption Closing.

EBITDA Calculation. (i) Within 30 days following delivery to Buyer of the delivery audited consolidated financial statements of a ROFR NoticeBuyer for each of the fiscal years ending December 31, TRG Call Option Notice or Anywhere Call Option Notice or 2015 and December 31, 2016, but in no event later than April 10 of the Mandatory Redemption Datefollowing year, as applicable, the Board Buyer shall prepare and the Board of Managers of Over Under Title LLC shall deliver to Sellers’ Representative a written statement setting forth in reasonable detail the TRG Member a proposed calculation EBITDA of the Company Acquired Companies for such fiscal year (each, an “EBITDA and the TitleOne EBITDA, as applicable, which shall be determined by the Board and the Board of Managers of Over Under Title LLC, as applicable, in good faith using the same valuation methodologies and accounting principles, practices, procedures, policies and methods used in the determination of the purchase price under the TRG Company Subscription Agreement and TRG TitleOne Subscription Agreement, as applicable (the “Valuation MethodologiesStatement”), together with a schedule setting forth in reasonable detail the calculations supporting Buyer’s computation of such statement. During the 60-day period following receipt of the EBITDA Statement, Buyer shall permit Sellers’ Representative and its independent accountants reasonable documentation access, during normal business hours, to the records and work papers of the Company and its independent accountants relating to the EBITDA Statement and to such other data and information from the Company as is reasonable under the circumstances; provided, however, that as a condition to the Company’s obligation to provide access to such records and work papers, Sellers’ Representative and its independent accountants shall execute and deliver a confidentiality and non-use agreement in form and substance reasonably acceptable to the Company and its independent accountants. Each EBITDA Statement shall become final and binding upon Sellers 60 days following receipt thereof, unless Sellers’ Representative gives written notice of disagreement with such EBITDA Statement specifying in reasonable detail the nature and amount of any disagreement so asserted (including supporting calculations each, a “Notice of Disagreement”) to Buyer prior to the expiration of such 60-day period. Sellers’ Representative and schedulesSellers shall be deemed to have agreed with all items and amounts included in the calculation of EBITDA and in the EBITDA Statement except such items, if any, that are set forth as disputed in a Notice of Disagreement. (ii) used by During the Board 15-day period following the delivery of any Notice of Disagreement or such longer period as Sellers’ Representative and Buyer shall mutually agree in writing, Sellers’ Representative and Buyer shall reasonably cooperate with each other and seek in good faith to resolve in writing any differences that they may have with respect to the Board matters specified in any Notice of Managers Disagreement. If, at the end of Over Under Title LLC such 15-day period (or such longer mutually agreed period), Sellers’ Representative and Buyer have not so resolved such differences, Sellers’ Representative and Buyer shall submit the dispute for resolution to the Neutral Auditors (to be selected in connection accordance with the preparation procedures set forth in Section 2.3(b)(iv)) for review and resolution of any and all matters that remain in dispute and that were included in such calculationsNotice of Disagreement. Unless the TRG Member has delivered to the Board a written objection toSellers, Sellers’ Representative and alternative calculation ofBuyer agree that, such proposed Company EBITDA and TitleOne EBITDA within 15 days after delivery thereof (an “Objection Notice”)absent manifest error, the Company EBITDA and determination of the TitleOne EBITDA proposed by the Board and the Board of Managers of Over Under Title LLC Neutral Auditors shall be final and binding on upon the Members. During such 15-day period, parties and that judgment may be entered upon the TRG Member and/or its accountants shall have reasonable access to the books and records determination of the Company and Over Under Title LLC and other documentation relating Neutral Auditors in any court having jurisdiction over the Party against which such determination is to be enforced; provided, however, that the calculations scope of the Company disputes to be resolved by the Neutral Auditors is limited to only such items included in the EBITDA Statement that Sellers’ Representative has disputed in the Notice of Disagreement and the TitleOne EBITDA as the TRG Member may reasonably request Sellers’ Representative and to the extent not unreasonably interfering with the business of the Company or of Over Under Title LLC. If the TRG Member delivers an Objection Notice within such 15-day period, the Anywhere Member and the TRG Member shall negotiate in good faith to resolve such objections within twenty (20) days after the delivery of the Objection Notice (the “Resolution Period”). If the Anywhere Member and the TRG Member are Buyer have been unable to resolve all such disagreements on or before resolve. Sellers’ Representative and Buyer shall use their commercially reasonable efforts to cause the expiration of the Resolution Period, the TRG Member and the Anywhere Member shall promptly retain and enter into an engagement letter with the Appraiser within ten (10) days following the expiration of the Resolution Period to resolve all such disagreements, who shall adjudicate only those items still in dispute. The Appraiser shall offer the TRG Member and the Anywhere Member the opportunity to provide written submissions regarding their positions on the disputed matters, which written submissions shall be provided to the Appraiser, if at all, no later than ten (10) Business Days after the date the Appraiser was retained Neutral Auditors to resolve the disputed mattersdispute as soon as practicable and in any event within 45 days of the engagement of the Neutral Auditors. The Appraiser’s Neutral Auditors shall consider only those amounts that are identified in the Notice of Disagreement as being items that Sellers’ Representative and Buyer have been unable to resolve. No disputed item shall be resolved by the Neutral Auditors in a manner that is more favorable to Buyer than is set forth in the Statement or in a manner more favorable to Sellers and Sellers’ Representative than is set forth in its Notice of Disagreement. The Neutral Auditors’ determination will be based solely on the proposals of Buyer and Sellers’ Representative in accordance with the Valuation Methodologies terms of this Section 2.4(a) and not on the guidelines and procedures basis of independent review. The dispute resolution mechanism set forth in this Agreement. Neither Section 2.4(a) shall be the TRG Member (or any of its Affiliates or representatives), nor sole and exclusive remedy between Parties regarding the Anywhere Member (or any of its Affiliates or representatives, including the Company) will engage in any ex parte communications with the Appraiser. The Appraiser shall deliver a written report resolving only the disputed matters and setting forth the basis for such resolution within thirty (30) days following the referral computation of the disputed matters to the Appraiser. In preparing its report, the Appraiser’s determination as to such items still in dispute shall not be more beneficial to the TRG Member or the Anywhere Member than the determination of that item in the Objection Notice or proposed calculations delivered to the TRG Member by the Board and the Board of Managers of Over Under Title LLC (as applicable). The Anywhere Member and the TRG Member shall cooperate in good faith with the Appraiser in connection with the determination of the Company EBITDA and the TitleOne EBITDA and provide all such data and information as may be reasonably requested by the Appraiser in connection therewithEarnout Payments. The determination of the Appraiser shall be made within thirty (30) days following the referral of the disputed matters to the Appraiser, and absent any manifest error or fraud, such determination shall be final and binding on the parties. The Appraiser will act as an expert and not an arbitrator and will determine only those unresolved disputed items that have been submitted to the Appraiser by the parties. Any retainer and fees, costs and expenses of the Appraiser Neutral Auditors shall be borne by allocated between the TRG Member Company, on one hand, and Sellers, on the Company other hand, in inverse proportion to the relative amounts by which their respective calculations of EBITDA differ from EBITDA as finally determined by the disputed amount determined to be for the account the TRG Member and the Company, respectivelyNeutral Auditors.

EBITDA Calculation. Within 30 days following the delivery of a ROFR Notice, TRG Call Option Notice or Anywhere Call Option Notice or the Mandatory Redemption Date, as applicable, the Board and the Board of Managers of Over Under Double Barrel Title LLC shall deliver to the TRG Member a proposed calculation of the Company EBITDA and the TitleOne ITC EBITDA, as applicable, which shall be determined by the Board and the Board of Managers of Over Under Double Barrel Title LLC, as applicable, in good faith using the same valuation methodologies and accounting principles, practices, procedures, policies and methods used in the determination of the purchase price under the TRG Company Subscription Agreement and TRG TitleOne ITC Subscription Agreement, as applicable (the “Valuation Methodologies”), together with such reasonable documentation (including supporting calculations and schedules) used by the Board and the Board of Managers of Over Under Double Barrel Title LLC in connection with the preparation of such calculations. Unless the TRG Member has delivered to the Board a written objection to, and alternative calculation of, such proposed Company EBITDA and TitleOne ITC EBITDA within 15 days after delivery thereof (an “Objection Notice”), the Company EBITDA and the TitleOne ITC EBITDA proposed by the Board and the Board of Managers of Over Under Double Barrel Title LLC shall be final and binding on the Members. During such 15-day period, the TRG Member and/or its accountants shall have reasonable access to the books and records of the Company and Over Under Double Barrel Title LLC and other documentation relating to the calculations of the Company EBITDA and the TitleOne ITC EBITDA as the TRG Member may reasonably request and to the extent not unreasonably interfering with the business of the Company or of Over Under Double Barrel Title LLC. If the TRG Member delivers an Objection Notice within such 15-day period, the Anywhere Member and the TRG Member shall negotiate in good faith to resolve such objections within twenty (20) days after the delivery of the Objection Notice (the “Resolution Period”). If the Anywhere Member and the TRG Member are unable to resolve all such disagreements on or before the expiration of the Resolution Period, the TRG Member and the Anywhere Member shall promptly retain and enter into an engagement letter with the Appraiser within ten (10) days following the expiration of the Resolution Period to resolve all such disagreements, who shall adjudicate only those items still in dispute. The Appraiser shall offer the TRG Member and the Anywhere Member the opportunity to provide written submissions regarding their positions on the disputed matters, which written submissions shall be provided to the Appraiser, if at all, no later than ten (10) Business Days after the date the Appraiser was retained to resolve the disputed matters. The Appraiser’s determination will be based in accordance with the Valuation Methodologies and the guidelines and procedures set forth in this Agreement. Neither the TRG Member (or any of its Affiliates or representatives), nor the Anywhere Member (or any of its Affiliates or representatives, including the Company) will engage in any ex parte communications with the Appraiser. The Appraiser shall deliver a written report resolving only the disputed matters and setting forth the basis for such resolution within thirty (30) days following the referral of the disputed matters to the Appraiser. In preparing its report, the Appraiser’s determination as to such items still in dispute shall not be more beneficial to the TRG Member or the Anywhere Member than the determination of that item in the Objection Notice or proposed calculations delivered to the TRG Member by the Board and the Board of Managers of Over Under Double Barrel Title LLC (as applicable). The Anywhere Member and the TRG Member shall cooperate in good faith with the Appraiser in connection with the determination of the Company EBITDA and the TitleOne ITC EBITDA and provide all such data and information as may be reasonably requested by the Appraiser in connection therewith. The determination of the Appraiser shall be made within thirty (30) days following the referral of the disputed matters to the Appraiser, and absent any manifest error or fraud, such determination shall be final and binding on the parties. The Appraiser will act as an expert and not an arbitrator and will determine only those unresolved disputed items that have been submitted to the Appraiser by the parties. Any retainer and fees, costs and expenses of the Appraiser shall be borne by the TRG Member and the Company in inverse proportion to the relative amounts of the disputed amount determined to be for the account the TRG Member and the Company, respectively.