Common use of EBITDA Calculation Clause in Contracts

EBITDA Calculation. The Administrative Agent shall have received a calculation of historical Consolidated EBITDA plug numbers as set forth in Schedule 3.2(o) calculated in accordance with and after giving effect to clause (ii) of the last paragraph of the definition of “Consolidated EBITDA”. Each Lender, by delivering its signature page to this Agreement and funding its Loan on the Funding Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by any Agent, Required Lenders or Lenders, as applicable, on the Funding Date. Notwithstanding anything herein to the contrary, upon satisfaction (or waiver by the Administrative Agent) of the conditions set forth in this Section 3.2, the initial funding of the Loans shall occur; it being understood and agreed that there are no other conditions (implied or otherwise) to the commitments hereunder or the provision or funding thereof, including compliance with the terms of this Agreement or the Fee Letter; it being further understood that, other than with respect to Filing Collateral or Stock Certificates (each as defined below), to the extent any security interest in or Lien on any Collateral or lien search is not or cannot be provided and/or perfected on the Funding Date after Parent’s and the Borrower’s use of commercially reasonable efforts to do so, or without undue burden or expense, the provision and/or perfection of a Lien on such Collateral or delivery of such Collateral, certificate or lien search shall not constitute a condition precedent for purposes of this Section 3.2, but instead shall be required to be perfected after the Funding Date within ninety (90) days after the Funding Date (or, in the case of Stock Certificates with respect to Karpos Intermediate and Keypath Education, ten (10) Business Days) (or such later date as the Administrative Agent may in its sole discretion agree, including pursuant to Section 5.12) (this paragraph, the “Certain Funds Provision”). Furthermore, and notwithstanding anything herein to the contrary, upon the Borrower’s delivery of a Funding Notice in accordance with this Agreement requesting an earlier funding, the proceeds of the Loans will be made available to the Borrower in advance of the consummation of the Take Private and the occurrence of the Funding Date in order to facilitate the conversion of the proceeds of the Loans funded in Dollars into Australian Dollars in order to fund the Acquisition consideration on the Funding Date, so long as (x) such prefunded amounts will bear interest in accordance with this Agreement from the date of such funding, (y) such prefunded amounts will only be used for the purposes permitted by this Agreement, and (z) the consummation of the Take Private and the occurrence of the Funding Date will occur within two (2) Business Days of such prefunding (or such later date as agreed by the Administrative Agent in its discretion), and, if the Take Private is not consummated, and the Funding Date does not occur, by such date (as may have been extended), then the Borrower will return the funds with interest thereon to the Lenders (it being agreed and understood that no Prepayment Premium or MOIC Amount will be payable in respect of such returned amounts).

EBITDA Calculation. The Administrative Agent shall have received a calculation For the purposes of historical Consolidated calculating the Company's EBITDA plug numbers as set forth in Schedule 3.2(o) calculated pursuant to this Article 13, the financial statements of the Company will be prepared on an accrual basis in accordance with and after giving effect to clause (ii) GAAP under the direction of the last paragraph of the definition of “Consolidated EBITDA”. Each Lender, by delivering its signature page to this Agreement and funding its Loan on the Funding Date, shall be deemed to have acknowledged receipt ofGSE, and consented to and approvedthe Purchaser shall operate the Company fairly, each Loan Document and each other document required to be approved by any Agentin good faith, Required Lenders or Lendersconsistent with past practices, as applicable, on the Funding Date. Notwithstanding anything herein to the contrary, upon satisfaction (or waiver by the Administrative Agent) of the conditions set forth in this Section 3.2, the initial funding of the Loans shall occur; it being understood and agreed that there are no other conditions (implied or otherwise) to the commitments hereunder or the provision or funding thereof, including compliance with the terms of this Agreement or the Fee Letter; it being further understood that, other than with respect to Filing Collateral or Stock Certificates (each as defined below), to the extent any security interest in or Lien on any Collateral or lien search is not or cannot be provided and/or perfected on the Funding Date after Parent’s and the Borrower’s use of using its commercially reasonable efforts to do soachieve 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 without undue burden if no time frame is provided, within 30 days after the end of the period for which the Calculation Statement is to be provided, setting forth in reasonable detail its determination of EBITDA or expenseAverage EBITDA, as the provision and/or perfection case may be, for the relevant period or periods (the "EBITDA Calculation") and, where a determination of a Lien on such Collateral or delivery the Option Purchase Price is required, including its calculation of such Collateralthe 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, certificate or lien search and the EBITDA Calculation and Price Calculation, as the case may be, set forth therein. During the Review Period, ▇▇▇▇ shall not constitute a condition precedent 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 resulting EBITDA Calculation and Price Calculation, as the case may be. (ii) Prior to the expiration of the Review Period, ▇▇▇▇ ▇▇▇ 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 3.2, but instead 13.4. ▇▇▇▇ shall be required permitted to make and retain copies of the Company's books and records which relate to the 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 this Section 13.4. (iii) If ▇▇▇▇ fails to deliver a Calculation Objection Notice to GSE prior to the expiration of the Review Period, then the EBITDA Calculation and Price Calculation, as the case may be, set forth in the Calculation Statement shall be perfected after final and binding on the Funding Date parties hereto. (iv) If ▇▇▇▇ timely deliver a Calculation Objection Notice, ▇▇▇▇ and GSE shall negotiate, reasonably and in good faith, in an attempt to resolve the disputed items 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 ninety (90) 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 Funding Date Company's accountants, appointed by mutual agreement of ▇▇▇▇ and GSE (or, in the case of Stock Certificates "Independent Accountant"). The Independent Accountant shall be directed to render a written report on the unresolved disputed items with respect to Karpos Intermediate the applicable EBITDA Calculation and Keypath EducationPrice Calculation, ten (10) Business Days) (or such later date as the Administrative Agent case may be, as promptly as practicable, but in its sole discretion agreeno event greater than 10 days after such submission to the Independent Accountant, including and to resolve only those unresolved disputed items set forth in the Calculation Objection Notice. If unresolved disputed items are submitted to the Independent Accountant, GSE and ▇▇▇▇ shall each furnish to the Independent Accountant such work papers, schedules and other documents and information relating to the unresolved disputed items as the Independent Accountant may reasonably request. The Independent Accountant shall resolve the disputed items based solely on the applicable definitions and other terms in this Agreement and the presentations by GSE and ▇▇▇▇, and not by independent review. (v) The resolution of the dispute and the EBITDA Calculation and Price Calculation, as the case may be, that is the subject of the applicable Calculation Objection Notice by the Independent Accountant shall be final and binding on the parties upon receipt of the Independent Accountant's written report. The fees and expenses of the Independent Accountant shall be borne by GSE and ▇▇▇▇ in proportion to the amounts by which their respective calculations of EBITDA differ from EBITDA as finally determined by the Independent Accountant. (c) Any amount of Option Purchase Price that GSE, as Purchaser, is required to pay to Seller pursuant to Section 5.1213.3(b)(i) or (this paragraphii), shall be paid in full, in cash by wire transfer of immediately available funds, no later than 10 Business Days following the “Certain Funds Provision”). Furthermore, date upon which the determination of EBITDA for the applicable calendar year becomes final and notwithstanding anything herein to the contrary, binding upon the Borrower’s delivery parties as provided in Section 13.4 (including any final resolution of any dispute raised by Seller in a Funding Notice in accordance with Calculation Objection Notice). (d) GSE shall have the right to withhold and set off against any amount otherwise due to be paid pursuant to this Section any Losses which it may suffer as a result of any breach of this Agreement requesting an earlier funding, by ▇▇▇▇ from and after the proceeds of the Loans will be made available to the Borrower in advance of the consummation of the Take Private and the occurrence of the Funding Date in order to facilitate the conversion of the proceeds of the Loans funded in Dollars into Australian Dollars in order to fund the Acquisition consideration on the Funding Date, so long as (x) such prefunded amounts will bear interest in accordance with this Agreement from the date of such funding, (y) such prefunded amounts will only be used for the purposes permitted by this Agreement, and (z) the consummation of the Take Private and the occurrence of the Funding Date will occur within two (2) Business Days of such prefunding (or such later date as agreed by the Administrative Agent in its discretion), and, if the Take Private is not consummated, and the Funding Date does not occur, by such date (as may have been extended), then the Borrower will return the funds with interest thereon to the Lenders (it being agreed and understood that no Prepayment Premium or MOIC Amount will be payable in respect of such returned amounts)Option Closing.

EBITDA Calculation. The Administrative Agent shall have received Within 30 days following the delivery of a calculation of historical Consolidated EBITDA plug numbers as set forth in Schedule 3.2(o) calculated in accordance with and after giving effect to clause (ii) of ROFR Notice, TRG Call Option Notice or Anywhere Call Option Notice or the last paragraph of the definition of “Consolidated EBITDA”. Each Lender, by delivering its signature page to this Agreement and funding its Loan on the Funding Mandatory Redemption Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be approved by any Agent, Required Lenders or Lenders, 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 Funding DateMembers. Notwithstanding anything herein During such 15-day period, the TRG Member and/or its accountants shall have reasonable access to the contrary, upon satisfaction (or waiver by the Administrative Agent) books and records of the conditions set forth in this Section 3.2, Company and Over Under Title LLC and other documentation relating to the initial funding calculations of the Loans shall occur; it being understood Company EBITDA and agreed that there are no other conditions (implied or otherwise) to the commitments hereunder or TitleOne EBITDA as the provision or funding thereof, including compliance with the terms of this Agreement or the Fee Letter; it being further understood that, other than with respect to Filing Collateral or Stock Certificates (each as defined below), TRG Member may reasonably request and to the extent any security interest in not unreasonably interfering with the business of the Company or Lien on any Collateral or lien search is not or cannot be provided and/or perfected on of Over Under Title LLC. If the Funding Date after Parent’s TRG Member delivers an Objection Notice within such 15-day period, the Anywhere Member and the Borrower’s use of commercially reasonable efforts TRG Member shall negotiate in good faith to do so, or without undue burden or expense, the provision and/or perfection of a Lien on resolve such Collateral or delivery of such Collateral, certificate or lien search shall not constitute a condition precedent for purposes of this Section 3.2, but instead shall be required to be perfected after the Funding Date objections within ninety twenty (9020) days after the Funding Date delivery of the Objection Notice (orthe “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 case of Stock Certificates with respect TRG Member and the Anywhere Member the opportunity to Karpos Intermediate and Keypath Educationprovide 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) (or such later Days after the date as the Administrative Agent may in its sole discretion agree, including pursuant Appraiser was retained to Section 5.12) (this paragraph, resolve the “Certain Funds Provision”)disputed matters. Furthermore, and notwithstanding anything herein to the contrary, upon the BorrowerThe Appraiser’s delivery of a Funding Notice determination will be based in accordance with the Valuation Methodologies and the guidelines and procedures set forth in this Agreement requesting an earlier fundingAgreement. 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 proceeds Appraiser’s determination as to such items still in dispute shall not be more beneficial to the TRG Member or the Anywhere 108404264.19 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 108404264.19 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 Loans will 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 available within thirty (30) days following the referral of the disputed matters to the Borrower in advance 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 consummation Appraiser shall be borne by the TRG Member and the Company in inverse proportion to the relative amounts of the Take Private disputed amount determined to be for the account the TRG Member and the occurrence of the Funding Date in order to facilitate the conversion of the proceeds of the Loans funded in Dollars into Australian Dollars in order to fund the Acquisition consideration on the Funding DateCompany, so long as (x) such prefunded amounts will bear interest in accordance with this Agreement from the date of such funding, (y) such prefunded amounts will only be used for the purposes permitted by this Agreement, and (z) the consummation of the Take Private and the occurrence of the Funding Date will occur within two (2) Business Days of such prefunding (or such later date as agreed by the Administrative Agent in its discretion), and, if the Take Private is not consummated, and the Funding Date does not occur, by such date (as may have been extended), then the Borrower will return the funds with interest thereon to the Lenders (it being agreed and understood that no Prepayment Premium or MOIC Amount will be payable in respect of such returned amounts)respectively.