Common use of Earnout Payment Clause in Contracts

Earnout Payment. (a) As additional consideration for the Common Units, subject to the conditions in Section 2.6(b), as additional Purchase Price, Buyer shall pay to Sellers’ Representative on behalf of Sellers the following amounts: (i) if a Change of Control is consummated during the Earnout Period, the lesser of (A) the product of (1) the Annualized Earnout Amount multiplied by (2) the Earnout Multiple or (B) Forty Million Dollars and 00/100 ($40,000,000) (the amount paid is the “Annualized Earnout Payment”); and (ii) (A) the lesser of (1) the product of (I) the Earnout Amount multiplied by (II) the Earnout Multiple or (2) Forty Million Dollars and 00/100 ($40,000,000.00) minus (B) the Annualized Earnout Payment, if any (the amount paid is the “Earnout Payment”). Notwithstanding any provision in this Agreement to the contrary, in no event will the sum of the Annualized Earnout Payment and the Earnout Payment exceed Forty Million Dollars and 00/100 ($40,000,000.00) and in no event will either the Annualized Earnout Payment or the Earnout Payment be less than zero. (b) The Earnout Payment and Annualized Earnout Payment will be paid by Buyer within fifteen (15) days after the determination of such amounts, respectively, is final, binding, and conclusive on the parties in accordance with this Section 2.6 (the date of payment of the Earnout Payment being the “Earnout Payment Date”); provided, however, that portion, if any, of the Earnout Payment that is attributable to Adjusted EBITDA in excess of Thirty One Million Dollars and 00/100 ($31,000,000.00) (the “Excess Earnout”) will be paid, subject to the last sentence of this Section 2.6(b), by Buyer on the first anniversary of the Earnout Payment Date (the “Second Earnout Payment Date”). Notwithstanding any provision in this Agreement to the contrary, the Excess Earnout, if any, will not be due, and Buyer will have no obligation to pay any Excess Earnout, if either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ has been terminated by Buyer or any Affiliate for Cause or have voluntarily terminated their employment with Buyer or any Affiliate other than for Good Reason prior to the Second Earnout Payment Date. For the avoidance of doubt, the death or disability (as such term may be defined in the Executive Employment Agreement of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇) of either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ will not affect the rights of the Sellers to receive any Annualized Earnout Payment or Earnout Payment. (c) No interest shall accrue, and Sellers shall not be entitled to any interest, on the Annualized Earnout Payment or Earnout Payment under this Agreement. (d) Buyer shall maintain separate records for the Acquired Companies during the Earnout Period sufficient to adequately track the impact of any changes to accounting polices and adjustments to EBITDA. Promptly following the completion of the audited financial statements for of the Earnout Period, Buyer shall prepare (i) a consolidated income statement of the Company and its Subsidiaries for the Earnout Period, which shall be prepared in accordance with GAAP, except as set forth in the definition of Adjusted EBITDA (the “Income Statement”), and (ii) a computation of EBITDA and Adjusted EBITDA, showing separately each of the adjustments made to EBITDA to arrive at Adjusted EBITDA (the “Computation Notice”). Buyer shall deliver the Income Statement and the Computation Notice to Sellers’ Representative within fifteen (15) days following the date on which the Buyer files its annual report on Form 10-K with the SEC for the fiscal year ended December 31, 2013, but in any event no later than April 15, 2014. (e) Upon execution of such access letters as may reasonably be required by Buyer, Sellers’ Representative and its Representatives shall be given reasonable access during reasonable business hours to (and, at their expense, copies of) all Buyer’s and its Representatives books, records, and other documents, including work papers, worksheets, notes, and schedules used in preparation of the Income Statement and its computation of EBITDA and Adjusted EBITDA in the Computation Notice for the purpose of reviewing the Income Statement and the Computation Notice in each case, other than work papers that Buyer considers proprietary and which are not reasonably necessary for Sellers’ Representative and its Representatives to evaluate the Income Statement and computation of EBITDA and Adjusted EBITDA, such as internal control documentation, engagement planning, time control and audit signoff, and quality control work papers. (f) If, within forty five (45) days following delivery of the Income Statement and the Computation Notice to Sellers’ Representative, Sellers’ Representative has not delivered Buyer notice of an objection as to any amount set forth on the Income Statement or the computation of EBITDA or Adjusted EBITDA in the Computation Notice (which notice shall state in reasonable detail the basis of Sellers’ Representative’s objection) (the “Objection Notice”), the Adjusted EBITDA as computed by Buyer will be final, binding, and conclusive on the parties. (g) If Sellers’ Representative timely delivers Buyer an Objection Notice, and if Sellers’ Representative and Buyer fail to resolve the issues raised in the Objection Notice within thirty (30) days after delivering the Objection Notice, Sellers’ Representative and Buyer shall submit the issues remaining in dispute for resolution to Deloitte LLP or if Deloitte LLP is providing accounting services to Buyer or is otherwise unable or unwilling to serve in such capacity, a recognized national or regional independent accounting firm mutually acceptable to Buyer and Sellers’ Representative) (the “Independent Accountants”). (h) The parties shall negotiate in good faith in order to seek agreement on the procedures to be followed by the Independent Accountants including procedures with regard to the presentation of evidence. If the parties are unable to agree upon procedures within ten (10) days of the submission to the Independent Accountants, the Independent Accountants shall establish such procedures giving due regard to the intention of the parties to resolve disputes as promptly, efficiently, and inexpensively as possible, which procedures may, but need not be, those proposed by either Buyer or Sellers’ Representative. The Independent Accountants shall be directed to resolve only those issues in dispute and render a written report on their resolution of disputed issues with respect to the Income Statement and the Computation Notice as promptly as practicable, but no later than sixty (60) days after the date on which the Independent Accountants are engaged. The determination of Adjusted EBITDA by the Independent Accountants will be based solely on written submissions of Buyer, on the one hand, and Sellers’ Representative, on the other hand, and will not involve independent review. Any determination by the Independent Accountants will not be outside the range established by the amounts in (i) the Income Statement and the computation of EBITDA and Adjusted EBITDA in the Computation Notice proposed by Buyer, and (ii) Sellers’ Representative’s proposed adjustments thereto. Such determination will be final, binding and conclusive on the parties. (i) If the computation of Adjusted EBITDA is submitted to the Independent Accountants for resolution: (i) Sellers’ Representative and Buyer shall execute any agreement required by the Independent Accountants to accept their engagement pursuant to this Section 2.6; (ii) Sellers’ Representative and Buyer shall promptly furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its accountants or other Representatives, and shall be afforded the opportunity to present to the Independent Accountants, with a copy to the other party, any other written material relating to the disputed issues; (iii) the determination by the Independent Accountants, as set forth in the report to be delivered by the Independent Accountants to both Sellers’ Representative and Buyer, will include all the changes in the Income Statement and the computation of EBITDA and Adjusted EBITDA in the Computation Notice required as a result of the determination made by the Independent Accountants; and (iv) Sellers and Buyer shall each bear one-half of the fees and costs of the Independent Accountants; provided however that the engagement agreement referred to in clause (i) above may require the parties to be bound jointly and severally to the Independent Accountants for those fees and costs, and in the event Sellers and Buyer pay to the Independent Accountants any amount in excess of one-half of the fees and costs of their engagement, the other part(ies) agree(s) to reimburse Sellers or Buyer, as applicable, upon demand to the extent required to equalize the payments made by Sellers and Buyer with respect to the fees and costs of the Independent Accountants. (j) In the event of a Change of Control is consummated during the Earnout Period, Buyer and Sellers shall comply with the provisions of Section 2.6(b) through (i), but all references to the Earnout Period shall be deemed to mean the Annualized Earnout Period, all references to Adjusted EBITDA shall be deemed to mean the Annualized Adjusted EBITDA, and the deadline for deliveries in Section 2.6(d) shall be 45 days after the consummation of the Change of Control. (k) The Annualized Earnout Payment and Earnout Payment are additional consideration for the Common Units. The Company, Buyer and each Seller shall prepare and files its income Tax Returns in a manner consistent with treatment of the Annualized Earnout Payment and Earnout Payment as additional consideration for the Common Units. The Company, Buyer and each Seller shall not take any position, whether in Tax Returns, Tax examinations or otherwise, that is inconsistent with such treatment of the Annualized Earnout Payment or Earnout Payment as additional consideration for the Common Units, unless required to do so by applicable law.

Earnout Payment. (a) As additional The Parties hereby agree, as additional, contingent consideration for the Common UnitsAssets being purchased by Purchaser under this Agreement (independent from the Adjusted Purchase Price), subject to the conditions cash payments set forth in this Section 2.6(b)2.10 (each, as additional Purchase Price, Buyer shall pay to Sellers’ Representative on behalf of Sellers the following amounts: (i) if a Change of Control is consummated during the Earnout Period, the lesser of (A) the product of (1) the Annualized Earnout Amount multiplied by (2) the Earnout Multiple or (B) Forty Million Dollars and 00/100 ($40,000,000) (the amount paid is the “Annualized Earnout Payment”); and (ii) (A) the lesser of (1) the product of (I) the Earnout Amount multiplied by (II) the Earnout Multiple or (2) Forty Million Dollars and 00/100 ($40,000,000.00) minus (B) the Annualized Earnout Payment, if any (the amount paid is the “Quarterly Earnout Payment”). Notwithstanding any provision in this Agreement The Quarterly Earnout Payment shall be calculated pursuant to the contraryfollowing terms: (a) On or before the date which is five (5) Business Days after the end of each Earnout Calculation Quarter (the “Measurement Date”), in no event will if the sum arithmetic average closing price for each NYMEX Trading Day of the Annualized front-month futures contract for WTI traded on the NYMEX (as reflected on Bloomberg CLA Cmdty (CL1:COM) (the “NYMEX Front Month Contract”) of all NYMEX Trading Days during the Earnout Calculation Quarter, the “NYMEX Quarterly Average”) is equal to or greater than $70 per Barrel, then: 49 (i) if the NYMEX Quarterly Average for such Earnout Period is greater than or equal to $70 per barrel but less than $75 per barrel, the Quarterly Earnout Payment for such Earnout Period shall be equal to Nine Hundred Thirty-Seven Thousand Five Hundred dollars ($937,500); and (ii) if the NYMEX Quarterly Average for such Earnout Period is greater than or equal to $75 per barrel, the Quarterly Earnout Payment exceed Forty for such Earnout Period shall be equal to One Million Dollars and 00/100 Eight Hundred Seventy-Five Thousand dollars ($40,000,000.00) and in no event will either the Annualized Earnout Payment or the Earnout Payment be less than zero. (b) The Earnout Payment and Annualized Earnout Payment will be paid by Buyer within fifteen (15) days after the determination of such amounts, respectively, is final, binding, and conclusive on the parties in accordance with this Section 2.6 (the date of payment of the Earnout Payment being the “Earnout Payment Date”1,875,000); provided, however, that portionif the NYMEX Quarterly Average for such Earnout Period is less than $70 per barrel, if any, of the Earnout Payment that is attributable to Adjusted EBITDA in excess of Thirty One Million Dollars and 00/100 ($31,000,000.00) (the “Excess Earnout”) will be paid, subject to the last sentence of this Section 2.6(b), by Buyer on the first anniversary of the Earnout Payment Date (the “Second Earnout Payment Date”). Notwithstanding any provision in this Agreement to the contrary, the Excess Earnout, if any, will not be due, and Buyer will have no obligation to pay any Excess Earnout, if either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ has been terminated by Buyer or any Affiliate for Cause or have voluntarily terminated their employment with Buyer or any Affiliate other than for Good Reason prior to the Second Earnout Payment Date. For the avoidance of doubt, the death or disability (as such term may be defined in the Executive Employment Agreement of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇) of either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ will not affect the rights of the Sellers to receive any Annualized Earnout Payment or Earnout Payment. (c) No interest shall accrue, and then Sellers shall not be entitled to, and Purchaser shall not be required to any interestmake, on the Annualized a Quarterly Earnout Payment or Earnout Payment under this Agreement. (d) Buyer shall maintain separate records for the Acquired Companies during the Earnout Period sufficient to adequately track the impact of any changes to accounting polices and adjustments to EBITDA. Promptly following the completion of the audited financial statements for of the such Earnout Period, Buyer shall prepare (i) a consolidated income statement of the Company and its Subsidiaries for the Earnout Period, which shall be prepared in accordance with GAAP, except as set forth in the definition of Adjusted EBITDA (the “Income Statement”), and (ii) a computation of EBITDA and Adjusted EBITDA, showing separately each of the adjustments made to EBITDA to arrive at Adjusted EBITDA (the “Computation Notice”). Buyer shall deliver the Income Statement and the Computation Notice to Sellers’ Representative within fifteen (15) days following the date on which the Buyer files its annual report on Form 10-K with the SEC for the fiscal year ended December 31, 2013, but in any event no later than April 15, 2014. (e) Upon execution of such access letters as may reasonably be required by Buyer, Sellers’ Representative and its Representatives shall be given reasonable access during reasonable business hours to (and, at their expense, copies of) all Buyer’s and its Representatives books, records, and other documents, including work papers, worksheets, notes, and schedules used in preparation of the Income Statement and its computation of EBITDA and Adjusted EBITDA in the Computation Notice for the purpose of reviewing the Income Statement and the Computation Notice in each case, other than work papers that Buyer considers proprietary and which are not reasonably necessary for Sellers’ Representative and its Representatives to evaluate the Income Statement and computation of EBITDA and Adjusted EBITDA, such as internal control documentation, engagement planning, time control and audit signoff, and quality control work papers. (f) If, within forty five (45) days following delivery of the Income Statement and the Computation Notice to Sellers’ Representative, Sellers’ Representative has not delivered Buyer notice of an objection as to any amount set forth on the Income Statement or the computation of EBITDA or Adjusted EBITDA in the Computation Notice (which notice shall state in reasonable detail the basis of Sellers’ Representative’s objection) (the “Objection Notice”), the Adjusted EBITDA as computed by Buyer will be final, binding, and conclusive on the parties. (g) If Sellers’ Representative timely delivers Buyer an Objection Notice, and if Sellers’ Representative and Buyer fail to resolve the issues raised in the Objection Notice within thirty (30) days after delivering the Objection Notice, Sellers’ Representative and Buyer shall submit the issues remaining in dispute for resolution to Deloitte LLP or if Deloitte LLP is providing accounting services to Buyer or is otherwise unable or unwilling to serve in such capacity, a recognized national or regional independent accounting firm mutually acceptable to Buyer and Sellers’ Representative) (the “Independent Accountants”). (h) The parties shall negotiate in good faith in order to seek agreement on the procedures to be followed by the Independent Accountants including procedures with regard to the presentation of evidence. If the parties are unable to agree upon procedures within ten (10) days of the submission to the Independent Accountants, the Independent Accountants shall establish such procedures giving due regard to the intention of the parties to resolve disputes as promptly, efficiently, and inexpensively as possible, which procedures may, but need not be, those proposed by either Buyer or Sellers’ Representative. The Independent Accountants shall be directed to resolve only those issues in dispute and render a written report on their resolution of disputed issues with respect to the Income Statement and the Computation Notice as promptly as practicable, but no later than sixty (60) days after the date on which the Independent Accountants are engaged. The determination of Adjusted EBITDA by the Independent Accountants will be based solely on written submissions of Buyer, on the one hand, and Sellers’ Representative, on the other hand, and will not involve independent review. Any determination by the Independent Accountants will not be outside the range established by the amounts in (i) the Income Statement and the computation of EBITDA and Adjusted EBITDA in the Computation Notice proposed by Buyer, and (ii) Sellers’ Representative’s proposed adjustments thereto. Such determination will be final, binding and conclusive on the parties. (i) If the computation of Adjusted EBITDA is submitted to the Independent Accountants for resolution: (i) Sellers’ Representative and Buyer shall execute any agreement required by the Independent Accountants to accept their engagement pursuant to this Section 2.6; (ii) Sellers’ Representative and Buyer shall promptly furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its accountants or other Representatives, and shall be afforded the opportunity to present to the Independent Accountants, with a copy to the other party, any other written material relating to the disputed issues; (iii) the determination by the Independent Accountants, as set forth in the report to be delivered by the Independent Accountants to both Sellers’ Representative and Buyer, will include all the changes in the Income Statement and the computation of EBITDA and Adjusted EBITDA in the Computation Notice required as a result of the determination made by the Independent Accountants; and (iv) Sellers and Buyer shall each bear one-half of the fees and costs of the Independent Accountants; provided however that the engagement agreement referred to in clause (i) above may require the parties to be bound jointly and severally to the Independent Accountants for those fees and costs, and in the event Sellers and Buyer pay to the Independent Accountants any amount in excess of one-half of the fees and costs of their engagement, the other part(ies) agree(s) to reimburse Sellers or Buyer, as applicable, upon demand to the extent required to equalize the payments made by Sellers and Buyer with respect to the fees and costs of the Independent Accountants. (j) In the event of a Change of Control is consummated during the Earnout Period, Buyer and Sellers shall comply with the provisions of Section 2.6(b) through (i), but all references to the Earnout Period shall be deemed to mean the Annualized Earnout Period, all references to Adjusted EBITDA shall be deemed to mean the Annualized Adjusted EBITDA, and the deadline for deliveries in Section 2.6(d) shall be 45 days after the consummation of the Change of Control. (k) The Annualized Earnout Payment and Earnout Payment are additional consideration for the Common Units. The Company, Buyer and each Seller shall prepare and files its income Tax Returns in a manner consistent with treatment of the Annualized Earnout Payment and Earnout Payment as additional consideration for the Common Units. The Company, Buyer and each Seller shall not take any position, whether in Tax Returns, Tax examinations or otherwise, that is inconsistent with such treatment of the Annualized Earnout Payment or Earnout Payment as additional consideration for the Common Units, unless required to do so by applicable law.

Earnout Payment. (a) As additional consideration for the Common Units, subject Subject to the terms and conditions of this Agreement, at such time as provided in Section 2.6(b1.6(c), the Buyer will pay (or cause to be paid) to Seller, by wire transfer of immediately available funds to the bank account designed in writing by the Seller, as additional Purchase Pricefollows (such resulting amount, Buyer shall pay to Sellers’ Representative on behalf of Sellers the following amounts:“Earnout Payment”): (i) If the Revenue for the Earnout Period is less than $16,500,000, the Earnout Payment shall be $0. (ii) If the Revenue for the Earnout Period is equal to or greater than $16,500,000 but less than $17,500,000, the Earnout Payment shall be $5,000,000, minus the amounts payable pursuant to Section 1.2(e)(ii), together with the employer portion of any payroll, social security, unemployment or similar Taxes related thereto. (iii) If the Revenue for the Earnout Period is equal to or greater than $17,500,000, the Earnout Payment shall be $8,000,000, minus the amounts payable pursuant to Section 1.2(e)(ii), together with the employer portion of any payroll, social security, unemployment or similar Taxes related thereto. Within 15 days following the Buyer’s receipt of the audited financial statements of the Buyer and its Affiliates for the Earnout Period prepared by the Buyer and its Affiliates’ independent public accountant, and in any event by June 15, 2025, the Buyer will prepare and deliver to the Seller a statement (the “Earnout Statement”) setting forth the Buyer’s calculation of the Revenue for the Earnout Period and, based on such calculation, the Earnout Payment (if a Change any). In addition, (x) within 45 Business Days after each of Control is consummated during the first three calendar quarters of the Earnout Period, the lesser Buyer shall provide to the Seller a written statement reflecting the Revenues in the prior quarter and (y) by January 30, 2025, the Buyer shall provide to the Seller a preliminary, non-binding estimate of (A) the product of (1) the Annualized Earnout Amount multiplied by (2) Revenues for the Earnout Multiple or (B) Forty Million Dollars and 00/100 ($40,000,000) (the amount paid is the “Annualized Earnout Payment”); and (ii) (A) the lesser of (1) the product of (I) the Earnout Amount multiplied by (II) the Earnout Multiple or (2) Forty Million Dollars and 00/100 ($40,000,000.00) minus (B) the Annualized Earnout Payment, if any (the amount paid is the “Earnout Payment”). Notwithstanding any provision in this Agreement to the contrary, in no event will the sum of the Annualized Earnout Payment and the Earnout Payment exceed Forty Million Dollars and 00/100 ($40,000,000.00) and in no event will either the Annualized Earnout Payment or the Earnout Payment be less than zeroPeriod. (b) The Earnout Payment Seller and Annualized Earnout Payment its Representatives will be paid by Buyer within fifteen (15) days after entitled to examine the determination of such amounts, respectively, is final, binding, and conclusive on workpapers related to the parties in accordance with this Section 2.6 (the date of payment preparation of the Earnout Payment being Statement. The Buyer will, and will cause the “Earnout Payment Date”); providedCompany to, howevergive the Seller and its Representatives reasonable access, during normal business hours and upon reasonable advance notice and in a manner that portion, if any, does not interfere with the normal business operations of the Earnout Payment that is attributable to Adjusted EBITDA in excess of Thirty One Million Dollars Buyer and 00/100 ($31,000,000.00) (the “Excess Earnout”) will be paidCompany, subject to the last sentence of this Section 2.6(b)relevant books, by Buyer on the first anniversary records and personnel of the Earnout Payment Date (the “Second Earnout Payment Date”). Notwithstanding any provision in this Agreement Company to the contrary, extent necessary to review the Excess Earnout, if any, will not be due, and Buyer will have no obligation to pay any Excess Earnout, if either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ has been terminated by Buyer or any Affiliate for Cause or have voluntarily terminated their employment with Buyer or any Affiliate other than for Good Reason prior to the Second Earnout Payment DateStatement. For the avoidance of doubt, any books and records or other materials to which the death or disability (Seller and its Representatives are given access pursuant to this Section 1.6(b) shall be afforded the same level of confidentiality by the Seller and its Representatives as such term may be defined in Confidential Information pursuant to Section 5.4. If the Executive Employment Agreement of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇) of either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ will not affect Seller disagrees with the rights calculation of the Sellers to receive any Annualized Earnout Payment or Earnout Payment. (c) No interest shall accrue, and Sellers shall not be entitled to any interest, on the Annualized Earnout Payment or Earnout Payment under this Agreement. (d) Buyer shall maintain separate records Revenue for the Acquired Companies during the Earnout Period sufficient or the Earnout Payment in the Earnout Statement, the Seller must deliver to adequately track the impact of any changes to accounting polices Buyer, within 45 days after the date the Buyer delivered the Earnout Statement (the “Earnout Dispute Period”), a written notice describing in reasonable detail each disagreement (an “Earnout Dispute”), including each amount in dispute and adjustments to EBITDA. Promptly following the completion basis for the Seller’s disagreement therewith (an “Earnout Dispute Notice”), which notice shall also contain the Seller’s proposed alternative calculation of the audited financial statements Revenue for the Earnout Period and the Earnout Payment; provided, however, that, in the event the Buyer or the Company does not provide any books or records or access to personnel necessary to review the Earnout Statement and reasonably requested by the Seller or any of its Representatives within five Business Days after request therefor (or such shorter period as may remain in the Earnout Dispute Period), the Earnout Dispute Period shall be extended by five Business Days (or such shorter period as may remain in the Earnout Dispute Period) plus one Business Day for each additional day required for the Buyer or the Company to fully respond to such request. Any amount contained in the Earnout Statement that the Seller does not dispute in the Earnout Dispute Notice will be deemed accepted by the Seller and will be conclusive and binding on the Parties. If the Seller does not deliver an Earnout Dispute Notice within the Earnout Dispute Period, the calculation of the Earnout Payment (if any) in the Earnout Statement shall be deemed to have been accepted and agreed to by the Seller and shall be final and binding upon the Parties. If the Seller delivers an Earnout Dispute Notice within the Earnout Dispute Period, Buyer shall prepare (i) a consolidated income statement of the Company and its Subsidiaries for the Earnout Period, which shall be prepared in accordance with GAAP, except as set forth in the definition of Adjusted EBITDA (the “Income Statement”), and (ii) a computation of EBITDA and Adjusted EBITDA, showing separately each of the adjustments made to EBITDA to arrive at Adjusted EBITDA (the “Computation Notice”). Buyer shall deliver the Income Statement Seller and the Computation Notice Buyer will negotiate in good faith to Sellers’ Representative within fifteen (15) resolve any Earnout Disputes. If, after a period of 45 days following the date on which the Buyer files its annual report on Form 10-K with Earnout Dispute Notice is delivered to the SEC for the fiscal year ended December 31, 2013, but in any event no later than April 15, 2014. (e) Upon execution of such access letters as may reasonably be required by Buyer, Sellers’ Representative the Buyer and its Representatives shall the Seller have not resolved each Earnout Dispute, then either the Buyer or the Seller will be given reasonable access during reasonable business hours entitled to (and, at their expense, copies of) all Buyer’s and its Representatives books, records, and other documents, including work papers, worksheets, notes, and schedules used in preparation of submit such unresolved Earnout Disputes to the Income Statement and its computation of EBITDA and Adjusted EBITDA Resolution Accountant to make the final determination with respect to any unresolved Earnout Disputes in the Computation Notice for manner provided in Section 1.4(d), mutatis mutandis (provided, that the purpose of reviewing the Income Statement Buyer and the Computation Notice in each case, other than work papers that Buyer considers proprietary and which are not reasonably necessary for Sellers’ Representative and its Representatives to evaluate Seller shall instruct the Income Statement and computation of EBITDA and Adjusted EBITDA, such as internal control documentation, engagement planning, time control and audit signoff, and quality control work papers. (f) If, within forty five (45) days following delivery of the Income Statement and the Computation Notice to Sellers’ Representative, Sellers’ Representative has not delivered Buyer notice of an objection as to any amount set forth on the Income Statement or the computation of EBITDA or Adjusted EBITDA in the Computation Notice (which notice shall state in reasonable detail the basis of Sellers’ Representative’s objection) (the “Objection Notice”), the Adjusted EBITDA as computed by Buyer will be final, binding, and conclusive on the parties. (g) If Sellers’ Representative timely delivers Buyer an Objection Notice, and if Sellers’ Representative and Buyer fail Resolution Accountant to resolve the issues raised Earnout Disputes utilizing the relevant terms and provisions contemplated in the Objection Notice within thirty (30) days after delivering the Objection Notice, Sellers’ Representative and Buyer shall submit the issues remaining in dispute for resolution to Deloitte LLP or if Deloitte LLP is providing accounting services to Buyer or is otherwise unable or unwilling to serve in such capacity, a recognized national or regional independent accounting firm mutually acceptable to Buyer and Sellers’ Representative) (the “Independent Accountants”this Section 1.6). (hc) The parties shall negotiate in good faith in order to seek agreement on Within five Business Days after the procedures to be followed by the Independent Accountants including procedures with regard to the presentation of evidence. If the parties are unable to agree upon procedures within ten (10) days final determination of the submission to the Independent AccountantsEarnout Payment (if any) in accordance with this Section 1.6 and, the Independent Accountants shall establish such procedures giving due regard to the intention of the parties to resolve disputes as promptlyin any event, efficiently, and inexpensively as possible, which procedures may, but need not be, those proposed by either Buyer or Sellers’ Representative. The Independent Accountants shall be directed to resolve only those issues in dispute and render a written report on their resolution of disputed issues with respect to the Income Statement and the Computation Notice as promptly as practicable, but no later than sixty June 30, 2025, the Buyer will pay (60or cause to be paid) days after to the date on which Seller, by wire transfer of immediately available funds to the Independent Accountants are engaged. The determination of Adjusted EBITDA bank account designated in writing by the Independent Accountants will be based solely on written submissions of BuyerSeller, on the one hand, and Sellers’ Representative, on the other hand, and will not involve independent review. Any determination by the Independent Accountants will not be outside the range established by the amounts in (i) the Income Statement and the computation of EBITDA and Adjusted EBITDA in the Computation Notice proposed by Buyer, and (ii) Sellers’ Representative’s proposed adjustments thereto. Such determination will be final, binding and conclusive on the parties. (i) If the computation of Adjusted EBITDA Earnout Payment that is submitted to the Independent Accountants for resolution: (i) Sellers’ Representative and Buyer shall execute any agreement required by the Independent Accountants to accept their engagement due pursuant to this Section 2.6; 1.6; provided, that, the Buyer and the Seller each covenants and agrees that all amounts (ii) Sellers’ Representative and Buyer shall promptly furnish or cause to be furnished to the Independent Accountants such work papers including all principal, interest and other documents and information relating payments) payable by the Buyer pursuant to the disputed issues as the Independent Accountants may request and this Section 1.6 are available to that party or its accountants or other Representatives, and shall be afforded the opportunity to present subordinate and junior in right of payment to the Independent Accountantsprior payment in full in cash of all Senior Debt (as defined below), with a copy to the other party, any other written material relating to extent and in the disputed issues; (iii) the determination by the Independent Accountants, as manner set forth in this Section 1.6(c). Notwithstanding anything to the report contrary contained in this Section 1.6, the Seller hereby agrees that the Buyer shall not be required to make, and the Seller shall not be permitted to receive or retain, all or any portion of the Earnout Payment otherwise due and payable under this Agreement to the extent any such payment is not permitted under Section 6.08(C) of the Credit Agreement (as such Section 6.08(C) is in effect on the date hereof, as provided by the Buyer to the Seller prior to the date hereof) or if the Board of Directors of Holdings determines in good faith that payment of the Earnout Payment (if any), or any portion thereof, is reasonably likely to cause or result in the Buyer, the Company or any of their respective Affiliates to be delivered in default, or would result in a default, under the Credit Agreement; provided, that the Buyer shall be required to make, and the Seller shall be permitted to receive and retain, all or any portion of the Earnout Payment otherwise due and payable under this Agreement to the extent any such payment is permitted under Section 6.08(C) of the Credit Agreement (as such Section 6.08(C) is in effect on the date hereof, as provided by the Independent Accountants Buyer to the Seller prior to the date hereof), both Sellers’ Representative before and Buyerafter giving effect to the making of such payment; and provided, will include all further, that during any payment delay pursuant to the changes provisions of this sentence (A) interest shall accrue on the unpaid Earnout Payment at the rate of 8% per annum beginning on the date of the final determination of the Earnout Payment and shall be payable in full when the Income Statement Earnout Payment is paid and (B) the computation Buyer shall provide to the Seller, as and when reasonably requested by the Seller from time to time (but, in any event, no more frequently than once per calendar quarter), an update regarding the status of EBITDA the default and Adjusted EBITDA in cure thereof, including the Computation Notice required anticipated timing of the payment of the Earnout Payment. In the event that, as a result of the determination application of the preceding sentence, the Buyer is not permitted to make and the Seller is not permitted to receive or retain all or any portion of the amounts owed under this Section 1.6, then (i) any such unpaid amounts shall constitute an unsecured obligation of the Buyer to the Seller and (ii) such unpaid amounts shall not be due and payable until the first such date that the conditions to such payment under Section 6.08(C) of the Credit Agreement (as such Section 6.08(C) is in effect on the date hereof, as provided by the Buyer to the Seller prior to the date hereof) are satisfied both before and after giving effect to the making of such payment. The Seller acknowledges and agrees that the Seller shall not sue for or otherwise take any collection action against the Buyer for any such payment or exercise any other remedies at law, in equity, by contract or otherwise as a result of the failure to pay any amounts owed under this Section 1.6 to the Seller due to failure to satisfy the conditions to payment under Section 6.08(C) of the Credit Agreement (as such Section 6.08(C) is in effect on the date hereof, as provided by the Buyer to the Seller prior to the date hereof). The Senior Agent and the Senior Lenders, together with their successors and assigns under the Credit Agreement, shall be deemed to be intended third party beneficiaries of this Section 1.6(c), and the Buyer and the Seller agree that (i) neither this Section 1.6 nor any terms hereunder relating to any amounts owed hereunder shall be amended, supplemented or otherwise modified without the prior written consent of the Senior Agent and (ii) the Senior Agent and the Senior Lenders shall be permitted to enforce the provisions of this Section 1.6(c) against Seller in their own name or in the name of the Buyer. Any payments received by the Seller in violation of the terms of this Section 1.6(c) shall be immediately paid by the Seller to the Senior Agent for the benefit of the Senior Lenders. Notwithstanding anything to the contrary contained herein, if any claim for indemnification under Section 6.1 (other than any claim for indemnification pursuant to Section 6.1(a)) is outstanding at the time of payment of the Earnout Payment (if any), then the payment of a portion (and only such portion) of the Earnout Payment (if any) equal to the amount claimed by the Buyer to be owed on account of such indemnification claim shall be delayed until such time as any such claim is finally resolved. Any payment made pursuant to this Section 1.6 shall be deemed for Tax purposes to be an adjustment to the Purchase Price, unless otherwise required by Law. The Buyer’s obligations in this Section 1.6 are subject to the terms and conditions of this Agreement (including Section 6.5(c)). (d) Subject to this Section 1.6(d), the Seller acknowledges and agrees that (i) the Buyer (and its Affiliates) shall have the sole discretion with respect to all matters relating to the operation of the Company following the Closing and shall have no obligation to operate the Company or make any decision relating thereto in order to achieve the Earnout Payment for the Seller under this Section 1.6 or maximize the amount of the Earnout Payment for the Seller under this Section 1.6, (ii) the Buyer (and its Affiliates) shall not owe the Seller any adjustment as a result of any negative impacts that any changes in the operations or management of the Company made by the Independent Accountants; and Buyer (or its Affiliates) in its (or their) sole discretion may have on the amount of the Earnout Payment ultimately payable to the Seller under this Section 1.6, (iii) there is no assurance that the Earnout Payment under this Section 1.6 will ultimately be payable to the Seller and neither the Buyer nor any of its Affiliates has promised nor projected any such amounts, (iv) Sellers the Parties solely intend the express provisions of this Section 1.6 to govern their contractual relationship with respect thereto without imposing any fiduciary or other duties on each other, and Buyer shall each bear one-half of (v) the fees and costs of the Independent Accountants; provided however that the engagement agreement referred to in clause (i) above may require the parties to be bound jointly and severally rights granted to the Independent Accountants for those fees and costs, and Seller under this Section 1.6 do not represent an ownership interest in the event Sellers Buyer or any of its Affiliates and Buyer pay do not entitle the Seller to the Independent Accountants any amount in excess of one-half of the fees and costs of their engagement, the other part(ies) agree(s) to reimburse Sellers voting or Buyer, as applicable, upon demand to the extent required to equalize the payments made by Sellers and Buyer dividend rights with respect to the fees and costs Buyer or any of its Affiliates. Notwithstanding the Independent Accountants. (j) In the event of a Change of Control is consummated foregoing, during the Earnout Period, the Buyer and Sellers shall comply with the provisions of Section 2.6(b) through (i), but all references to the Earnout Period shall be deemed to mean the Annualized Earnout Period, all references to Adjusted EBITDA shall be deemed to mean the Annualized Adjusted EBITDAshall, and Buyer shall cause the deadline for deliveries in Section 2.6(dCompany to, (A) shall be 45 days after the consummation of the Change of Control. (k) The Annualized Earnout Payment and Earnout Payment are additional consideration for the Common Units. The Company, Buyer and each Seller shall prepare and files its income Tax Returns in a manner consistent with treatment of the Annualized Earnout Payment and Earnout Payment as additional consideration for the Common Units. The Company, Buyer and each Seller shall not take any positionintentional action the primary purpose of which is to avoid or frustrate the Earnout Payment, whether in Tax Returns, Tax examinations (B) not transfer the assets or otherwise, that is inconsistent with such treatment personnel of the Annualized Earnout Payment Company to the Buyer or Earnout Payment as additional consideration for any of its Affiliates or liquidate, dissolve or wind up the Common UnitsCompany, unless required and (C) not change the Accounting Methodology with respect to do so by applicable lawrevenues, including the Company’s revenue recognition policies.