Valuation Methodology. For purposes of any distribution hereunder, the value of any non-cash property, including any equity securities or debt securities (the “Non-Cash Property”) shall be equal to either the Current Market Price (as defined below) or the Fair Market Value (as defined below) of such Non-Cash Property and will be determined as follows. (1) In the event that, in accordance with the provisions hereof, Non-Cash Property is to be distributed, the Collateral Agent shall first determine whether such Non-Cash Property is a security that is listed, admitted to trading or quoted on a national securities exchange or the NASDAQ National Market System (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The “Current Market Price” of a Marketable Security shall be deemed to be the average of the daily closing prices of such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, for the 20 consecutive trading days ending on the trading day immediately preceding the record day set by the Collateral Agent for the distribution of such Non-Cash Property. (2) Upon determination by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot be determined pursuant to clause (1) above), the Noteholders, the Additional Senior Secured Debt Holders and the Swap Creditors representing a majority of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations shall promptly, but in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: (i) appoint a nationally recognized investment bank (an “Independent Financial Expert”) with experience in similar transactions (for instance, transactions of a comparable size and magnitude) to determine the Fair Market Value of the Non-Cash Property to be distributed, and (ii) cause the Independent Financial Expert so appointed by it, to prepare and to deliver to the Collateral Agent a written report (a “Value Report”) specifying such Fair Market Value. (3) The Company shall provide, and shall cause its subsidiaries to provide, the Independent Financial Expert with the same financial and operational information for conducting their valuation. The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be complete and accurate in all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to reasonably cooperate, fully with the Independent Financial Expert in the conduct of its valuation, including making management reasonably available and offering access to the premises of the Company and its subsidiaries to the Independent Financial Expert during regular business hours and on reasonable notice. (4) “Fair Market Value” of the Non-Cash Property to be distributed, as of the date of determination, shall mean the price that a willing buyer would pay to a willing seller for the relevant Non-Cash Property, in an arm’s length transaction, with neither party being under any immediate obligation or need to consummate such transaction. The Fair Market Value shall be stated in U.S. dollars.
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Valuation Methodology. For purposes (i) The purchase price of any distribution hereunderthe Percentage Interests of RHB shall be determined by mutual agreement between SCC and RHB or, if such Parties cannot agree, by an independent valuation performed by a mutually-selected, nationally recognized investment banking firm or certified public accounting firm (“Independent Financial Expert A”). Upon completion of its assignment, Independent Financial Expert A shall notify the Parties in writing of Independent Financial Expert A’s determination of the value of any non-cash propertyRHB’s Percentage Interest. Within five business days after receiving written notice by Independent Financial Expert A, including any equity securities or debt securities either Party may object to the valuation. Such objecting Party shall evidence their objection by written notice (the “Non-Cash PropertyNotice of Objection”) sent to the other Party within the five business day period. If a Party sends such Notice of Objection to the other Party then, within ten business days of the other Party’s receiving such notice, SCC and RHB shall each designate a separate, nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Experts B and C”). Within 15 business days after being selected, Independent Financial Experts B and C shall mutually-select a third nationally recognized, investment banking firm or certified public accounting firm (“Independent Financial Expert D”) that shall prepare a final and binding determination of the value of RHB’s Percentage Interest. The costs of Independent Financial Experts A, C and D shall be equal to either paid for by SCC, and the Current Market Price (as defined below) or the Fair Market Value (as defined below) cost of such Non-Cash Property and will Independent Financial Expert B shall be determined as followspaid for by RHB.
(1ii) In Regardless of the event that, determination of value of RHB’s Percentage Interest by any of the methods described in accordance with the provisions hereof, Non-Cash Property is to be distributedArticle 8.8 (b) (i) above, the Collateral Agent minimum aggregate value of RHB’s Percentage Interest shall first determine whether such Non-Cash Property is a security that is listednot be less than the greater of one of the following, admitted pro rata to trading or quoted on a national securities exchange or the NASDAQ National Market System RHB’s Percentage Interest: (a “Marketable Security”), and, for each Marketable Security, its Current Market Price. The “Current Market Price” of a Marketable Security shall be deemed to be A) five times the average of the daily closing prices of such Marketable Security on the principal national securities exchange on which such Marketable Security is listed or admitted to trading or, if such Marketable Security is not so listed, the average daily closing bid prices of such Marketable Security on the NASDAQ National Market System if such Marketable Security is quoted thereon, in any such case, Company’s EBITDA for the 20 consecutive trading days ending on previous three fiscal years or (B) five times the trading day immediately preceding the record day set by the Collateral Agent Company’s total EBITDA for the distribution of such Non-Cash Propertytrailing twelve months prior to the transaction close date.
(2iii) Upon determination Once the value has been determined by the Collateral Agent that the Non-Cash Property to be distributed is not a Marketable Security (or that it is a Marketable Security, but its Current Market Price cannot be determined pursuant to clause (1) above), the Noteholders, the Additional Senior Secured Debt Holders and the Swap Creditors representing a majority one of the then outstanding Aggregate Voting Credit with respect to the Finance Obligations shall promptly, but methods described in any case within 30 days of receipt of a notice from the Collateral Agent of such determination: Article 8.8 (b) (i) appoint a nationally recognized investment bank (an “Independent Financial Expert”) with experience in similar transactions (for instance, transactions of a comparable size and magnitude) to determine the Fair Market Value of the Non-Cash Property to be distributed, and (ii) cause above, any undistributed net taxable income attributable to RHB’s Percentage Interests must be added to that value to determine the Independent Financial Expert so appointed by it, to prepare and to deliver purchase price. In addition to the Collateral Agent a written report (a “Value Report”) specifying such Fair Market Value.
(3) The Company shall providepurchase price, and shall cause its subsidiaries ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ will be entitled to provide, an Earn-out bonus equal to 50% of the Independent Financial Expert with the same financial and operational information for conducting their valuation. The Company shall use, and shall cause its subsidiaries to use, commercially reasonable efforts to ensure that the information shall be complete and accurate in net profits of all material respects and that any forecasts shall be based on unbiased assessments made in good faith. The Company shall reasonably cooperate, and shall cause its subsidiaries to reasonably cooperate, fully with the Independent Financial Expert projects listed in the conduct of its valuationCompany’s backlog, including making management reasonably available and offering access to plus projects where the premises of company was the Company and its subsidiaries to apparent low bidder but the Independent Financial Expert during regular business hours and on reasonable notice.
(4) “Fair Market Value” of the Non-Cash Property to be distributedproject was not yet listed in backlog, as of the date transaction close date. Net profit will be determined based on audited gross margin on each project minus an allocated overhead charge commensurate with the Company’s annual average overhead percentage of determination, shall mean Revenue. Such net profits will be due and payable only for as long as ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ remains continuously employed by the price that a willing buyer would pay to a willing seller for the relevant Non-Cash Property, in an arm’s length transaction, with neither party being under any immediate obligation or need to consummate such transaction. The Fair Market Value shall be stated in U.S. dollarsCompany and only after each listed project is closed out and audited.
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