Common use of 2006 EBITDA Clause in Contracts

2006 EBITDA. Seven (7) Business Days prior to the Closing Date, Seller shall deliver to Purchaser its good faith calculation of the 2006 EBITDA (the “2006 EBITDA Calculation”). Within five (5) Business Days following receipt of the 2006 EBITDA Calculation, Purchaser may object in good faith to the 2006 EBITDA Calculation by giving written notice to Seller setting forth in reasonable detail: (i) the specific amount to which Purchaser objects, (ii) the reasons for Purchaser’s objection (which shall be based on GAAP) and (iii) Purchaser’s proposed adjustments to Seller’s calculation (“Purchaser’s Estimate EBITDA Objection”). If Purchaser fails to object to the 2006 EBITDA Calculation within such five (5) Business Day period, Purchaser will be deemed to have conclusively agreed with and shall be bound by the 2006 EBITDA Calculation for the purposes of Section 3.3.1(b), and the Purchase Price will be adjusted as set forth in Section 3.3.1(b) based on the 2006 EBITDA Calculation. If Purchaser objects to the 2006 EBITDA Calculation, Seller and Purchaser shall confer in good faith following Seller’s receipt of Purchaser’s Estimate EBITDA Objection for the Estimate Resolution Period to attempt to reach agreement regarding the disputed amount (the “Disputed Amount”). If Seller and Purchaser reach agreement during the Estimate Resolution Period, the Purchase Price will be adjusted as set forth in Section 3.3.1 based on the agreed upon 2006 EBITDA Calculation. If Seller and Purchaser are unable to reach agreement during the Estimate Resolution Period with respect to the Disputed Amount, (a) the Purchase Price will be adjusted based on the agreed upon 2006 EBITDA Calculation and (b) Seller and Purchaser will resolve any outstanding disagreement regarding the Disputed Amount following the Closing in accordance with the procedures set forth in Section 3.2.2(b).

2006 EBITDA. Seven (7) Business Days prior to the Closing DateOn or before July 31, 2007, Seller shall deliver to Purchaser its good faith calculation calculations of the Final 2006 EBITDA (the “Final 2006 EBITDA Calculation”). Within five thirty (530) Business Days days following receipt of the Final 2006 EBITDA Calculation, Purchaser may object in good faith to the Final 2006 EBITDA Calculation (including any unresolved objections raised by Purchaser prior to Closing in accordance with Section 3.2.1(b)) by giving written notice to Seller setting forth in reasonable detail: (i) the specific amount to which Purchaser objects, (ii) the reasons for Purchaser’s objection (which shall be based on GAAP) and (iii) Purchaser’s proposed adjustments to Seller’s calculation (“Purchaser’s Estimate EBITDA Objection”). If Purchaser fails to object to the Final 2006 EBITDA Calculation within such five thirty (530) Business Day day period, Purchaser will be deemed to have conclusively agreed with and shall be bound by the Final 2006 EBITDA Calculation for the purposes of Section 3.3.1(b3.3.2(b), and the Purchase Price will be adjusted as set forth in Section 3.3.1(b3.3.2(b) based on the Final 2006 EBITDA Calculation. If Purchaser objects to the Final 2006 EBITDA Calculation, Seller and Purchaser shall confer in good faith for a period of up to fifteen (15) days following Seller’s receipt of Purchaser’s Estimate EBITDA Objection for (the Estimate “EBITDA Resolution Period Period”) to attempt to reach agreement regarding the disputed amount (the “Disputed Amount”). If Seller and Purchaser reach agreement during the Estimate Resolution Period, the Purchase Price will be adjusted as set forth in Section 3.3.1 based on the agreed upon 2006 EBITDA Calculationsuch calculation. If Seller and Purchaser are unable to reach agreement during the Estimate EBITDA Resolution Period with respect to the Disputed AmountPeriod, (a) the Purchase Price will be adjusted based on the agreed upon 2006 EBITDA Calculation and (b) then Seller and Purchaser will shall confer in good faith for up to five (5) days to agree on a Resolution Firm to resolve any the outstanding disagreement regarding the Disputed Amount following the Closing in accordance with the procedures set forth in Section 3.2.2(b)below; provided, however, that if the Parties cannot agree on a Resolution Firm, then each of Seller and Purchaser will select a nationally recognized accounting firm and the two firms selected by Seller and Purchaser will select the Resolution Firm. The Resolution Firm will review the Final 2006 EBITDA Calculation and Purchaser’s EBITDA Objection and make a final written determination of the Final 2006 EBITDA Calculation, which determination shall be conclusive and binding on Seller and Purchaser. The Resolution Firm’s engagement shall be solely limited to determining the Final 2006 EBITDA Calculation and, if applicable, the Retained Working Capital Calculation.