Common use of Accounting Procedures Clause in Contracts

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 hereof shall be determined in accordance with the following procedure: (e) The Company’s independent auditors (the “Accountants”) shall prepare in accordance with GAAP, and deliver to the Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectively, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a copy of each such computation of each applicable Adjusted EBITDA to the Consultant or its representatives. (f) Either party shall have thirty (30) days following receipt of the Report of Accountants to dispute any computations made therein, by delivery of a written notice to the other party hereto, which notice shall include an explanation of the basis for such dispute. If after such thirty day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final and binding on the parties. (g) If the Company and the Consultant reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by the parties, and shall be enforceable in a court of law. If the Company and the Consultant are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “Independent Auditors”) for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto may agree) to resolve all items in dispute. In the event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (h) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owed.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 Section 3.1 hereof shall be determined in accordance with the following procedure: (ea) The Company’s independent auditors accountants (the “Accountants”) shall prepare in accordance with GAAP, and deliver to the Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectivelyEBITDA, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a copy of each such computation of each applicable Adjusted EBITDA to the Consultant or its representatives. (fb) Either party shall have thirty (30) days following receipt of the Report of Accountants to dispute any computations made therein, by delivery of a written notice to the other party hereto, which notice shall include an explanation of the basis for such dispute. If after such thirty (30) day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final and binding on the parties. (gc) If the Company and the Consultant reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by the parties, and shall be enforceable in a court of law. If the Company and the Consultant are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “Independent Auditors”) for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto may agree) to resolve all items in dispute. In the event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (hd) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.53.3, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owed.

Accounting Procedures. (a) The compensation parties will use their respective reasonable best efforts to cause Xxxxxx Xxxxxxxx & Co. or another nationally recognized independent accounting firm acceptable to Parent and the Stockholders Representative (the "ACCOUNTANTS"), as soon as practicable after the end of each of 2002 through 2006, but in any event not later than April 30th of the following year, to prepare in accordance with GAAP a report containing an audited consolidated balance sheet of the Company as of the close of business on December 31st of each such fiscal year, and a related audited consolidated statement of income of the Company for the 12 months then ended, in each case together with a statement of the Accountants that states that such report was prepared in accordance with this Agreement and sets forth the PBT, Net Income and Average PBT Margin for the period under examination and all adjustments required to be paid pursuant made to Sections 3.2 and 3.3 hereof shall such audited financial statements in order to make the calculations required under SECTIONS 1.2 AND 1.3 (the "ANNUAL DETERMINATION"). All such determinations will be determined in accordance with the following procedure: (e) The Company’s independent auditors (the “Accountants”) shall prepare in accordance with GAAP, and deliver to the Company, a report containing a computation applicable provisions of Adjusted EBITDA under Sections 3.2 and 3.3, respectively, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a copy of each such computation of each applicable Adjusted EBITDA to the Consultant or its representativesthis Agreement. (fb) Either If Purchaser or the Stockholder Representative does not agree that an Annual Determination correctly states the applicable PBT, Net Income or Average PBT Margin, the disputing party shall have thirty will promptly (30) but not later than 45 calendar days following receipt of after the Report of Accountants to dispute any computations made therein, by delivery of a such Annual Determination) give written notice to the other party hereto, which notice shall include an explanation of its exceptions thereto (in reasonable detail describing the nature of the basis for such disputedisagreement asserted). If after such thirty day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final and binding on the parties. (g) If the Company Purchaser and the Consultant Stockholder Representative reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall Annual Determination will be adjusted accordingly and shall will thereupon become binding, final and conclusive upon agreement in writing by on all of the parties, and shall be enforceable in a court of lawparties hereto. If the Company Purchaser and the Consultant Stockholder Representative are unable to reconcile their differences in writing within 20 calendar days after written notice of exceptions is delivered to the other party (the “Reconciliation Period”"ANNUAL DETERMINATION RECONCILIATION PERIOD"), the items in dispute shall will be submitted to a mutually acceptable nationally recognized accounting firm (the "INDEPENDENT AUDITORS") in the United States other than the Accountants) (the “Independent Auditors”) Accountants for final determination, determination and the calculation of applicable Adjusted EBITDA for the relevant time period shall Annual Determination will be deemed adjusted in accordance with the determination of the Independent Auditors and shall will become binding, final and conclusive upon on all of the parties hereto and enforceable in a court of lawhereto. The Independent Auditors shall may consider only the items in dispute and shall will be instructed by Purchaser and the Stockholder Representative to act within 20 45 calendar days (or such longer period as Purchaser and the parties hereto Stockholder Representative may agree) to resolve all items in dispute. If Purchaser and the Stockholder Representative do not give notice of any exception within 45 calendar days after the delivery of an Annual Determination or if Purchaser and the Stockholder Representative give written notification of their acceptance of an Annual Determination prior to the end of such 45-day period, such Annual Determination will thereupon become binding, final and conclusive on all the parties hereto. (c) In the event the parties Independent Auditors are for any reason unable or unwilling to agree on a mutually acceptable perform the services required of them under this SECTION 1.4, then Purchaser and the Stockholder Representative will select another nationally recognized accounting firm in the United States other than such firm or the Accountants to perform the services to be performed under this SECTION 1.4 by the Independent Auditors. If Purchaser and the Stockholder Representative fail to select the Independent Auditors as so required within thirty (30) seven calendar days of after the expiration of the applicable Reconciliation PeriodPeriod or fail to select another accounting firm within seven calendar days after it is determined that the Independent Auditors will not perform the services required, either of Purchaser or the matter shall be submitted to Stockholder Representative may request the courts of the State of American Arbitration Association in New York, County of Nassau, which New York (the parties agree shall have the exclusive right "AAA") to appoint an independent firm of certified public accountants to perform the services required under this SECTION 1.4 by the Independent Auditors. For purposes of this SECTION 1.4, the term "Independent Auditors" includes such other accounting firm chosen in accordance with the foregoing provisions. (d) Except as provided in SECTION 1.4(E), one-half of the fees and expenses of the Independent Auditors and the fees of the AAA will be paid by Purchaser and one-half of such fees and expenses will be paid by the Stockholder Representative on behalf of the partiesStockholders. (he) Notwithstanding any provision in this Agreement The Independent Auditors must determine the party (I.E., Purchaser or the Stockholder Representative) whose asserted position as to the contrarycalculation of PBT, nothing PBT Margin or Net Income for the period under examination is furthest from the determination by the Independent Auditors. If Purchaser is the non-prevailing party and its asserted position was lower by 10% or more (based on the effect on the total amount of payments at issue) than the determination made by the Independent Auditors, Purchaser will pay all of the fees and expenses of the Independent Auditors and the AAA and will reimburse the Stockholder Representative for its costs and expenses incurred in connection with this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owedSECTION 1.

Accounting Procedures. (a) Antero is part of an affiliated group of companies (the “Affiliated Group”) that as of the date of this Agreement is engaged in the exploration and production of natural gas. Accounting, purchasing, and risk management (among other functions and services) as of the date of this Agreement are managed or provided by Antero or one of its Affiliates to the Affiliated Group. The compensation costs and expenses incurred by Antero or such Affiliate in managing or providing such functions and services are accrued on the books and records of Antero in accordance with GAAP and are allocated (where applicable) among the members of the Affiliated Group in accordance with GAAP (the “Accounting Procedures”). (b) The costs and expenses incurred by Antero Water, Antero Treatment or Antero Midstream in managing or providing functions and services as at the date of this Agreement are to be paid pursuant to Sections 3.2 accrued on the books and 3.3 hereof shall be determined records of such entity in accordance with the following procedure:Accounting Procedures. (ec) Antero shall apply the Accounting Procedures in determining the Expenditures. The CompanyAccounting Procedures shall provide a mechanism for validating an Expenditure and all allocations of an Expenditure. If MLP believes that the determination or allocation of any Expenditure is inconsistent with the Accounting Procedures, then MLP shall notify Antero in writing of the specific manner in which MLP regards such determination or allocation to be deficient or objectionable. Antero shall either correct or change such determination or allocation in accordance with the notice, or, if Antero disagrees with MLP’s independent notice, shall reasonably cooperate with MLP in addressing such changes. If MLP’s auditors and the Audit Committee of the General Partner make reasonable suggestions on accounting relating to this Agreement, Antero will reasonably cooperate with MLP and any other applicable members of the Partnership Group in addressing such changes; provided, the implementation of such suggestions shall be subject to the mutual agreement of MLP and Antero. (d) There shall be no duplication of charges for the same Expenditure. Likewise, no duplication of an Expenditure that has been charged to MLP under any other agreement between the Parties may occur. This AMENDED AND RESTATED SERVICES AGREEMENT (this “Agreement”) dated as of [ ], 2015, is entered into by and among Antero Midstream Partners LP, a Delaware limited partnership (the “AccountantsPartnership”) shall prepare in accordance with GAAP), Antero Resources Midstream Management LLC, a Delaware limited liability company (the “General Partner”), and deliver to the CompanyAntero Resources Corporation, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectively, within 90 days following the completion of each calendar year Delaware corporation (“Report of AccountantsAntero”). The Company shall promptly deliver, or cause to be delivered, a copy of each such computation of each applicable Adjusted EBITDA to the Consultant or its representatives. (f) Either party shall have thirty (30) days following receipt of the Report of Accountants to dispute any computations made therein, by delivery of a written notice to the other party hereto, which notice shall include an explanation of the basis for such dispute. If after such thirty day period neither party receives written notice of a disputePartnership, the Report of Accountants shall thereupon General Partner and Antero may be deemed final and binding on the partiesreferred to herein individually as “Party” or collectively as “Parties. (g) If the Company and the Consultant reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by the parties, and shall be enforceable in a court of law. If the Company and the Consultant are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “Independent Auditors”) for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto may agree) to resolve all items in dispute. In the event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (h) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owed.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 hereof shall be determined in accordance with the following procedure: (e1) The Company’s NBA and the Players Association shall jointly engage an independent auditors auditor (the “Accountants”) shall prepare to provide the parties with an “Audit Report” (and a “Draft Audit Report,” an “Interim Audit Report” and, if applicable, an “Interim Escrow Audit Report”) setting forth BRI, Team Salary and Benefits of each NBA Team for the immediately preceding Salary Cap Year and, commencing with the audit reports prepared with respect to the 2001-02 Salary Cap Year, the information called for by Section 12 of this Article VII (the “Escrow Information”). The audit reports provided for by this subsection (a)(1) are to be prepared in accordance with GAAP, the provisions and deliver definitions contained in this Agreement. The engagement of the Accountants shall be deemed to be renewed annually unless they are discharged by either party during the period from the submission of an Audit Report up to January 1 of the following year. The parties agree to share equally the costs incurred by the Accountants in preparing the audit reports provided for by this subsection (a)(1). (2) The Accountants shall submit a “Draft Audit Report” to the CompanyNBA and the Players Association, along with relevant supporting documentation, on or before the July 15 following the conclusion of each Salary Cap Year. The final Audit Report shall be submitted by the Accountants to the parties on or before the following July 31, or, if necessary, at a report containing later date promptly following the final resolution of all disputes (by agreement of the parties confirmed in writing or by means of the dispute-resolution procedures provided for by this Agreement). The NBA, the Players Association and the Teams shall use their best efforts to facilitate the Accountants’ timely completion of the Audit Report. In the event that, for any reason, the Accountants fail to submit to the parties a computation final Audit Report by July 31, the Accountants shall prepare an interim Audit Report (the “Interim Audit Report”) by such date setting forth the Accountants’ best estimate of Adjusted EBITDA under Sections 3.2 BRI and 3.3Total Salaries and Benefits for the preceding Salary Cap Year and, respectivelycommencing with such Interim Audit Report as may be prepared with respect to the 2001-02 Salary Cap Year and based upon such best estimates, the Escrow Information. Such Interim Audit Report shall include: (i) All amounts of BRI and Total Salaries and Benefits (or the portions thereof) and all Escrow Information (or the portions thereof) for such Salary Cap Year as to which the Accountants have completed their review and, by written agreement of the Players Association and the NBA (waiving their respective rights to dispute such amounts), are not in dispute. (ii) With respect to any amounts of BRI or Total Salaries and Benefits (or portions thereof) as to which the Accountants have not completed their review or which are the subject of a good faith dispute between the parties, the NBA’s good faith proposal as to the proper amount, if any, that should be included in the Audit Report. (iii) With respect to any items of Escrow Information that are the subject of a good faith dispute between the parties, the Accountants’ good faith determination as to such items, taking into account the provisions of subsections (i) and (ii) of this Section 10(a)(2). As soon as practicable after the Interim Audit Report is submitted to the parties, the Accountants shall submit the final Audit Report, including a description of the differences, if any, from the Interim Audit Report. An Audit Report shall not be deemed final until the parties have confirmed in writing their agreement with such Report or all disputes with respect to such Report have been finally resolved by means of the dispute-resolution procedures provided for by this Agreement. If, at the conclusion of the Audit Report Challenge Period (as defined by Section 12(b)(4) below), the Accountants have not submitted or are unable to submit a final Audit Report (because, by way of example but not limitation, there are disputes or claims that have been asserted pursuant to Article XXXII, Section 9(c) and which remain pending), the Accountants shall prepare and submit to the parties, within 90 five (5) business days following the completion of the Audit Report Challenge Period, an Interim Escrow Audit Report that shall include the information set forth in the Interim Audit Report as adjusted or amended so as to reflect any final determinations made by the System Arbitrator or the Appeals Panel (as the case may be) in proceedings commenced pursuant to Article XXXII, Section 9(b) and involving disputes or claims with respect to such Interim Audit Report. The sole purpose for which any Interim Escrow Audit Report is to be used under this Agreement is to perform or form the basis for the calculations to be made pursuant to Article VII, Section 12. (b) For purposes of determining BRI, Total Salaries and Benefits and the Escrow Information, the Accountants shall perform at least such review procedures as shall be agreed upon by the parties. In connection with the preparation of Audit Reports for each calendar year Salary Cap Year, each Team and the NBA shall submit a report to the Accountants, the NBA and the Players Association setting forth BRI, Team Salaries and Benefits information for such Salary Cap Year, on forms agreed upon by the NBA, the Players Association and the Accountants (the “Report of AccountantsBRI Reports”). The Company NBA and the Players Association shall promptly deliveragree upon such forms no later than April 1 of each Salary Cap Year. (c) The Accountants shall review the reasonableness of any estimates of revenues or expenses for a Salary Cap Year included in the Teams’ and the NBA’s BRI Reports for such Salary Cap Year and may make such adjustments in such estimates as they deem appropriate. To the extent the actual amounts of revenues received or expenses incurred for a Salary Cap Year differ from such estimates, adjustments shall be made in BRI for the following Salary Cap Year in accordance with the provisions of subsection (f) below. (d) With respect to expenses deducted by the NBA or cause the Teams, the NBA and the Teams shall report in BRI Reports only those expenses that are reasonable and customary in accordance with the provisions of Section 1(a)(1) of this Article VII. Subject to the terms of Section 1(a)(6) and Section 11 of this Article VII, all categories of expenses deducted in a BRI Report completed by the NBA or a Team shall be reviewed by the Accountants, but such categories shall be presumed to be deliveredreasonable and customary and the amount of the expenses deducted by the NBA or a Team that come within such expense categories shall also be presumed to be reasonable and customary, a copy of each unless such computation of each applicable Adjusted EBITDA categories or amounts are found by the Accountants to be either unrelated to the Consultant revenues involved or its representativesgrossly excessive. (e) The Accountants shall notify designated representatives of the NBA and the Players Association: (i) if the Accountants have any questions concerning the amounts of revenues or expenses reported by the Teams and the NBA or any other information contained in the BRI Reports; or (ii) if the Accountants propose that any adjustments be made to any revenue or expense item or any other information contained in the BRI Reports. (f) Either party The Accountants shall have thirty indicate which amounts included in BRI for a Salary Cap Year, if any, represent estimates of revenues. With respect to any such estimated revenues, the Accountants shall, in preparing the Audit Report for the immediately succeeding Salary Cap Year (30) days following receipt “Subsequent Audit Report”), or the Audit Report for the same Salary Cap Year in the event that an Interim Audit Report was previously issued for that Salary Cap Year, determine the actual revenues received for the prior Salary Cap Year and include as a credit or debit to BRI in such Subsequent Audit Report the amount of the Report of Accountants to dispute any computations made thereinaggregate difference, by delivery of a written notice to if any, between all such estimated revenues for the other party hereto, which notice shall include an explanation of prior Salary Cap Year and the basis actual revenues received for such dispute. If after such thirty day period neither party receives written notice of a dispute, Salary Cap Year (the Report of Accountants shall thereupon be deemed final and binding on the parties“Estimated Revenue Adjustment”). (g) If the Company and the Consultant reconcile their differences, the applicable Adjusted EBITDA for the relevant time period All disputes with respect to any Interim Audit Report shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by the parties, and shall be enforceable in a court of law. If the Company and the Consultant are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “Independent Auditors”) for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted resolved exclusively in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable procedures set forth in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto may agree) to resolve all items in dispute. In the event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the partiesArticle XXXII. (h) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owed.

Accounting Procedures. (a) The compensation parties will use their respective reasonable best efforts to cause Xxxxxx Xxxxxxxx & Co., another nationally recognized independent accounting firm then retained by Parent as its independent accountants (the "ACCOUNTANTS"), as soon as practicable after the end of each of 2002 through 2006, but in any event not later than April 30th of the following year, to prepare in accordance with this Agreement a report containing an audited consolidated balance sheet of the Company as of the close of business on December 31st of each such fiscal year, and a related audited consolidated statement of income of the Company for the 12 months then ended, in each case together with a statement of the Accountants that states that such report was prepared in accordance with this Agreement and sets forth the PBT, PBT Margin and Revenues for the period under examination and all adjustments required to be paid pursuant made to Sections 3.2 such audited financial statements in order to make the calculations required under SECTIONS 1.2 and 3.3 hereof shall 1.3 (the "ANNUAL DETERMINATION"). All such determinations will be determined in accordance with the following procedure: (e) The Company’s independent auditors (applicable provisions of this Agreement. No adjustment or accrual required by GAAP to any of the “Accountants”) shall prepare in accordance with GAAP, and deliver to the Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectively, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause items to be delivered, a copy of each such computation of each applicable Adjusted EBITDA calculated pursuant to the Consultant or its representativesthis SECTION 1.4 will be disregarded based on materiality considerations. (fb) Either If Purchaser or Seller does not agree that an Annual Determination correctly states the applicable PBT, PBT Margin or Revenues, the disputing party shall have thirty will promptly (30) but not later than 45 calendar days following receipt of after the Report of Accountants to dispute any computations made therein, by delivery of a such Annual Determination) give written notice to the other party hereto, which notice shall include an explanation of its exceptions thereto (in reasonable detail describing the nature of the basis for such disputedisagreement asserted). If after such thirty day period neither party receives written notice of a disputePurchaser and Seller reconcile their differences in writing, the Report of Accountants shall thereupon be deemed final and binding on the parties. (g) If the Company and the Consultant reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall Annual Determination will be adjusted accordingly and shall will thereupon become binding, final and conclusive upon agreement in writing by on all of the parties, and shall be enforceable in a court of lawparties hereto. If the Company Purchaser and the Consultant Seller are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”)differences, the items in dispute shall will be submitted to a mutually acceptable nationally recognized accounting firm (the "INDEPENDENT AUDITORS") in the United States other than the Accountants) (the “Independent Auditors”) Accountants for final determination, determination and the calculation of applicable Adjusted EBITDA for the relevant time period shall Annual Determination will be deemed adjusted in accordance with the determination of the Independent Auditors and shall will become binding, final and conclusive upon on all of the parties hereto and enforceable in a court of lawhereto. The Independent Auditors shall may consider only the items in dispute, may reach a determination on such items only within the range specified by Purchaser and Seller for resolving each item in dispute and shall will be instructed by Purchaser and Seller to act within 20 90 calendar days (or such longer period as the parties hereto Purchaser and Seller may agree) to resolve all items in dispute. If Purchaser and Seller do not give notice of any exception within 45 calendar days after the delivery of an Annual Determination or if Purchaser and Seller give written notification of their acceptance of an Annual Determination, such Annual Determination will thereupon become binding, final and conclusive on all the parties hereto. (c) In the event the parties Independent Auditors are for any reason unable or unwilling to perform the services required of them under this SECTION 1.4, then Purchaser and Seller will select another nationally recognized accounting firm in the United States other than such firm or the Accountants to perform the services to be performed under this SECTION 1.4 by the Independent Auditors. If Purchaser and Seller fail to select the Independent Auditors as so required or fail to select another accounting firm after it is determined that the Independent Auditors will not perform the services required, or if the Accountants are unable or unwilling to agree on a mutually acceptable accounting firm within thirty (30) days perform the Annual Determination, either of Purchaser or Seller may request the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of American Arbitration Association in New York, County of Nassau, which New York (the parties agree shall have the exclusive right "AAA") to appoint an independent firm of certified public accountants to perform the services required under this SECTION 1.4 by the Independent Auditors or, if applicable, the Accountants. Any arbitration herein contemplated will be conducted in New York City. For purposes of this SECTION 1.4, the term "INDEPENDENT AUDITORS" includes such other accounting firm on behalf of chosen in accordance with the partiesforegoing provisions. (hd) Notwithstanding any provision in this Agreement to One-half of the contrary, nothing in this Agreement shall require fees and expenses of the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit Independent Auditors and the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall AAA will be paid to Consultant within 30 days by Purchaser and one-half of final determination under this Section that such credit is owedfees and expenses will be paid by Seller.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 hereof shall be determined in accordance with the following procedure: (ei) The Company’s Purchaser shall cause an independent auditors accounting firm chosen by Purchaser and reasonably acceptable to Zyman (the “Accountants”) shall ), as soon as practicable after the end of calendar year 2005, to prepare in accordance with GAAP, and deliver to the Company, a report containing audited consolidated and consolidating balance sheets of the Company (for the avoidance of all doubt, inclusive of its predecessor) and its subsidiaries as of the close of business on December 31, 2005, and related audited consolidated and consolidating statements of income of the Company for such calendar year, in each case together with a computation statement of Adjusted EBITDA under Sections 3.2 the Accountants based upon such report which (x) states that it was prepared in accordance with this Agreement and 3.3, respectively, within 90 days following (y) sets forth the completion calculation of each Revenues and Additional Payment PBT for calendar year 2005, and (z) sets forth all adjustments required to be made to such audited financial statements in order to make the calculations required under this Section 2.2 (the “Report of Accountants2005 Determination”). The Company Accountants shall promptly deliver, or cause to be delivered, deliver a copy of each such computation the 2005 Determination to Zyman not later than 120 days after December 31, 2005. The Company shall pay the fees and expenses of each applicable Adjusted EBITDA to the Consultant or its representativesAccountant. (fii) Either party shall have thirty (30) If Zyman does not agree that the 2005 Determination correctly states the calculation of Additional Payment PBT and Revenues for fiscal year 2005, Zyman shall, within 30 days following receipt of after the Report of Accountants to dispute any computations made therein, by delivery of a such 2005 Determination to Zyman, give written notice to the other party hereto, which notice shall include an explanation Purchaser of any exceptions thereto (in reasonable detail describing the nature of the basis for such disputedisagreement asserted). If after such thirty day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final Purchaser and binding on the parties. (g) If the Company and the Consultant Zyman reconcile their differences, the applicable Adjusted EBITDA for the relevant time period 2005 Determination shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by all of the parties, parties hereto and shall be enforceable in a court of law. If the Company Purchaser and the Consultant Zyman are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “Independent Auditors”) Auditors for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period 2005 Determination shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as Zyman and the parties hereto Purchaser may agree) to resolve all items in dispute. If Zyman does not give written notice of any exception within 30 days after the delivery of the 2005 Determination or if Zyman gives written notification of its acceptance of the 2005 Determination prior to the end of such 30 day period, such 2005 Determination shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. (iii) In the event the parties Independent Auditors are for any reason unable or unwilling to perform the services required of it under this Section 2.2.3, then the Purchaser and Zyman agree on a to select another mutually acceptable accounting firm to perform the services to be performed under this Section 2.2.3 by the Independent Auditors. If the Purchaser and Zyman fail to select the Independent Auditors as required by clause (i) above within thirty (30) seven days of after the expiration of the Reconciliation PeriodPeriod or fail to select another accounting firm within seven days after it is determined that the Independent Auditors will not perform the services required, either the matter shall be submitted to Purchaser or Zyman may request the courts of the State of American Arbitration Association in New York, County of Nassau, which New York (the parties agree shall have the exclusive right “AAA”) to appoint an independent firm of certified public accountants to perform the accounting firm on behalf of services required under this Section 2.2.3 by the parties. (h) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statementsIndependent Auditors. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to shall pay the fees and expenses of the AAA and the Independent Auditors. For purposes of this Section 3.5, credit 2.2.3 the Consultant for any term “Independent Auditors” shall include such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset other accounting firm chosen in accordance with this clause (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owediii).

Accounting Procedures. (a) The compensation parties will use their respective reasonable best efforts to cause Arthur Andersen LLP, another nationally recognized independent accountinx xxxx xxxx xxxained by Parent as its independent accountants (the "Accountants"), as soon as practicable after the end of each of 2002 through 2006, but in any event not later than April 30th of the following year, to prepare in accordance with this Agreement a report containing an audited consolidated balance sheet of the Company as of the close of business on December 31st of each such fiscal year, and a related audited consolidated statement of income of the Company for the 12 months then ended, in each case together with a statement of the Accountants that states that such report was prepared in accordance with this Agreement and sets forth the PBT, PBT Margin and Revenues for the period under examination and all adjustments required to be paid pursuant made to such audited financial statements in order to make the calculations required under Sections 3.2 1.2 and 3.3 hereof shall 1.3 (the "Annual Determination"). All such determinations will be determined in accordance with the following procedure: (e) The Company’s independent auditors (applicable provisions of this Agreement. No adjustment or accrual required by GAAP to any of the “Accountants”) shall prepare in accordance with GAAP, and deliver to the Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectively, within 90 days following the completion of each calendar year (“Report of Accountants”). The Company shall promptly deliver, or cause items to be delivered, a copy of each such computation of each applicable Adjusted EBITDA calculated pursuant to the Consultant or its representativesthis Section 1.4 will be disregarded based on materiality considerations. (fb) Either If Purchaser or Seller does not agree that an Annual Determination correctly states the applicable PBT, PBT Margin or Revenues, the disputing party shall have thirty will promptly (30) but not later than 45 calendar days following receipt of after the Report of Accountants to dispute any computations made therein, by delivery of a such Annual Determination) give written notice to the other party hereto, which notice shall include an explanation of its exceptions thereto (in reasonable detail describing the nature of the basis for such disputedisagreement asserted). If after such thirty day period neither party receives written notice of a disputePurchaser and Seller reconcile their differences in writing, the Report of Accountants shall thereupon be deemed final and binding on the parties. (g) If the Company and the Consultant reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall Annual Determination will be adjusted accordingly and shall will thereupon become binding, final and conclusive upon agreement in writing by on all of the parties, and shall be enforceable in a court of lawparties hereto. If the Company Purchaser and the Consultant Seller are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”)differences, the items in dispute shall will be submitted to a mutually acceptable nationally recognized accounting firm (the "Independent Auditors") in the United States other than the Accountants) (the “Independent Auditors”) Accountants for final determination, determination and the calculation of applicable Adjusted EBITDA for the relevant time period shall Annual Determination will be deemed adjusted in accordance with the determination of the Independent Auditors and shall will become binding, final and conclusive upon on all of the parties hereto and enforceable in a court of lawhereto. The Independent Auditors shall may consider only the items in dispute, may reach a determination on such items only within the range specified by Purchaser and Seller for resolving each item in dispute and shall will be instructed by Purchaser and Seller to act within 20 90 calendar days (or such longer period as the parties hereto Purchaser and Seller may agree) to resolve all items in dispute. If Purchaser and Seller do not give notice of any exception within 45 calendar days after the delivery of an Annual Determination or if Purchaser and Seller give written notification of their acceptance of an Annual Determination, such Annual Determination will thereupon become binding, final and conclusive on all the parties hereto. (c) In the event the parties Independent Auditors are for any reason unable or unwilling to perform the services required of them under this Section 1.4, then Purchaser and Seller will select another nationally recognized accounting firm in the United States other than such firm or the Accountants to perform the services to be performed under this Section 1.4 by the Independent Auditors. If Purchaser and Seller fail to select the Independent Auditors as so required or fail to select another accounting firm after it is determined that the Independent Auditors will not perform the services required, or if the Accountants are unable or unwilling to agree on a mutually acceptable accounting firm within thirty (30) days perform the Annual Determination, either of Purchaser or Seller may request the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of American Arbitration Association in New York, County of Nassau, which New York (the parties agree shall have the exclusive right "AAA") to appoint an independent firm of certified public accountants to perform the services required under this Section 1.4 by the Independent Auditors or, if applicable, the Accountants. Any arbitration herein contemplated will be conducted in New York City. For purposes of this Section 1.4, the term "Independent Auditors" includes such other accounting firm on behalf of chosen in accordance with the partiesforegoing provisions. (hd) Notwithstanding any provision in this Agreement to One-half of the contrary, nothing in this Agreement shall require fees and expenses of the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit Independent Auditors and the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall AAA will be paid to Consultant within 30 days by Purchaser and one-half of final determination under this Section that such credit is owedfees and expenses will be paid by Seller.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 hereof shall be determined in accordance with the following procedure: (ei) The Company’s Upon exercise of each Call or Accepted Sale Request, MDC Holdco may prepare or, at its discretion, may cause BDO Xxxxxxx LLP or other independent auditors accountant of national standing (the “"Accountants”") shall prepare to prepare, in accordance with GAAP, and deliver to the Company, a report containing a computation consolidated balance sheet of Adjusted EBITDA under Sections 3.2 the Company and 3.3its subsidiaries, respectivelyif any, within 90 days following as of the completion close of business on December 31 of each year contained within the Measuring Period, and a related consolidated statement of income of the Company and its subsidiaries, if any, for the relevant calendar year then ended, in each case together with a statement based upon such report which (“Report x) states that it was prepared in accordance with this Agreement and (y) sets forth for the period under examination the applicable calculation of Accountants”PBT, and (z) sets forth all adjustments required to be made to such audited financial statements in order to make the calculations required under this Section 10.4 (the "Annual Determination"). The Company MDC Holdco shall promptly deliverhave the option, or cause in its sole discretion, to be delivered, instruct the Accountants to audit the annual financial statements and to determine the scope of such audit. MDC Holdco shall instruct the Accountants to deliver a copy of each such computation Annual Determination to WWG not later than 120 days after the end of each applicable Adjusted EBITDA the period to which such Annual Determination relates; provided, however, any delay of the Consultant or its representativesAccountants to meet such timetable shall impose no liability on the part of MDC Holdco. (fii) Either party If WWG does not agree that any Annual Determination correctly states the applicable calculations of PBT, Revenues or AM for the period under examination, WWG shall have thirty promptly (30) but not later than 30 days following receipt of after the Report of Accountants to dispute any computations made therein, by delivery of a such Annual Determination to WWG) give written notice to MDC Holdco of any exceptions thereto (in reasonable detail describing the other party hereto, which notice shall include an explanation nature of the basis for such disputedisagreement asserted). If after such thirty day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final WWG and binding on the parties. (g) If the Company and the Consultant MDC Holdco reconcile their differences, the applicable Adjusted EBITDA for the relevant time period Annual Determination shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by all of the parties, parties hereto and shall be enforceable in a court of law. If the Company WWG and the Consultant MDC Holdco are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the other party WWG (the “"Reconciliation Period”"), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “"Independent Auditors”") for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period Annual Determination shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto WWG and MDC Holdco may agree) to resolve all items in dispute. If WWG does not give written notice of any exception within 30 days after the delivery of an Annual Determination or if WWG gives written notification of its acceptance of an Annual Determination prior to the end of such 30 day period, such Annual Determination shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. (iii) In the event the parties Independent Auditors are for any reason unable or unwilling to perform the services required of it under this Section 10.4, then WWG and MDC Holdco agree on a to select another mutually acceptable accounting firm to perform the services to be performed under this Section 10.4 by the Independent Auditors. If WWG and MDC Holdco fail to select the Independent Auditors as required by clause (i) above within thirty (30) seven days of after the expiration of the Reconciliation PeriodPeriod or fail to select another accounting firm within seven days after it is determined that the Independent Auditors will not perform the services required, either WWG or MDC Holdco may request the matter American Arbitration Association in New York City (the "AAA") to appoint an independent firm of certified public accountants to perform the services required under this Section 10.4 by the Independent Auditors. MDC Holdco, on the one hand, and WWG, on the other hand, shall be submitted to share the courts fees of the State AAA equally. For purposes of New York, County of Nassau, which this Section 10.4(f) the parties agree term "Independent Auditors" shall have the exclusive right to appoint the include such other accounting firm on behalf of the partieschosen in accordance with this clause (iii). (hiv) Notwithstanding any provision in this Agreement The Independent Auditors shall determine the party (i.e., WWG or MDC Holdco) whose asserted position as to the contrarycalculation of PBT for the period under examination before the Independent Auditors is furthest from the determination of PBT by the Independent Auditors, nothing in this Agreement which non-prevailing party shall require pay the fees and expenses of the Independent Auditors and shall reimburse the prevailing party for the portion of the fees of the AAA previously paid by it. (v) The books and records of the Company and its subsidiaries shall be made available during normal business hours upon reasonable advance notice at the principal office of the Company, to restate its audited financial statementsthe parties hereto and their representatives, the Accountants and the Independent Auditors to the extent required to determine the calculations required under Section 10.4. The Company may at its sole discretionWWG, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit on the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excessone hand, and apply MDC Holdco, on the other hand, shall make available to the other party and their representatives (including auditors) any back-up materials generated by or for them to support a position that is contrary to the position taken by the other party. Upon the request by WWG, MDC Holdco shall request that the Accountants make their work papers available to WWG and its representatives after the completion of any audit of the financial statements of the Company and its subsidiaries and/or to verify the calculations set forth in any Annual Determination (in each case during normal business hours upon reasonable advance notice at the principal offices of the Accountants); provided, however, it is understood that the decision to make such credit or offset (as applicable) in work papers available is solely that of the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owedAccountants.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 and 3.3 hereof shall be determined in accordance with the following procedure: (ei) The Company’s Purchaser shall, or shall cause BDO Xxxxxxx LLP, or another independent auditors accounting firm chosen by the Purchaser (the “"Accountants”) shall "), at the Purchaser's expense, as soon as practicable after the Closing, to prepare in accordance with GAAP, GAAP and deliver to the CompanyRepresentative, a report containing a computation consolidated balance sheet of Adjusted EBITDA under Sections 3.2 the Company and 3.3its subsidiaries, respectivelyif any, within 90 days following as of the completion close of each calendar year business as of the Effective Date immediately after the consummation of the transactions effected by the Conveyance Document (“Report the "Closing Balance Sheet"), together with a statement of Accountants”the Accountants based upon such report which sets forth the Effective Date Working Capital (the "Special Determination"). The Company Purchaser shall have the option, in its sole discretion (and at its sole expense) to instruct the Accountants to audit or perform agreed upon procedures on the Closing Balance Sheet and to determine the scope of such audit or procedures. If the Representative does not agree that the Special Determination correctly states the Effective Date Working Capital, the Representative shall promptly deliver, or cause (but not later than 30 days after the delivery to be delivered, a copy of each such computation of each applicable Adjusted EBITDA to the Consultant or its representatives. (f) Either party shall have thirty (30) days following receipt him of the Report of Accountants to dispute any computations made therein, by delivery of a Special Determination) give written notice to the other party hereto, which notice shall include an explanation Purchaser of any exceptions thereto (in reasonable detail describing the nature of the basis for such disputedisagreement asserted). If after such thirty day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final and binding on the parties. (g) If the Company Representative and the Consultant Purchaser reconcile their differences, the applicable Adjusted EBITDA for the relevant time period Effective Date Working Capital calculation shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by all of the parties, parties hereto and shall be enforceable in a court of law. If the Company dispute relates to an accounting issue and if the Representative and the Consultant Purchaser are unable to reconcile their differences in writing within 20 days after written notice of exceptions is delivered to the other party Purchaser (the “"Reconciliation Period”"), the accounting items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “"Independent Auditors”") for final determination, and the . The Effective Date Working Capital calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the accounting items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto Representative and the Purchaser may agree) to resolve all accounting items in dispute. If the dispute involves a non-accounting issue and such dispute cannot be reconciled within the Reconciliation Period, the dispute shall be settled by a court of competent jurisdiction. If the Representative does not give written notice of any exception within 30 days after the delivery to him of the Special Determination or if the Representative gives written notification of his acceptance of the Effective Date Working Capital prior to the end of such 30 day period, the Effective Date Working Capital set forth in the Special Determination shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. (ii) In the event the parties Independent Auditors are for any reason unable or unwilling to perform the services required of it under this Section 2.1.3, then the Purchaser and the Representative agree on a mutually acceptable to select another accounting firm (other than the Accountants) to perform the services to be performed under this Section 2.1.3 by the Independent Auditors. If the Purchaser and the Representative fail to select the Independent Auditors as required by Section 2.1.3(i) above within thirty (30) seven days of after the expiration of the Reconciliation PeriodPeriod or fail to select another accounting firm within seven days after it is determined that the Independent Auditors will not perform the services required, either the matter shall be submitted to Purchaser or the courts of Representative may request the State of Judicial Arbitration and Mediation Services, Inc. ("JAMS") located in New York, County New York, or if JAMS is not so located, in the jurisdiction of Nassauclosest proximity to New York, which the parties agree shall have the exclusive right New York to appoint an independent firm of certified public accountants to perform the accounting firm on behalf of the parties. (h) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination services required under this Section that such credit is owed.2.1.3

Accounting Procedures. The compensation amount of the Promissory Note to be paid issued pursuant to Sections 3.2 and 3.3 Section 2.1(b) hereof shall be determined in accordance with the following procedure: (ea) The Company’s independent auditors (the “Accountants”) shall prepare in accordance with GAAP, and deliver to the Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectivelySection 2.1, within 90 days following the completion of each the 2005 calendar year year, and within 45 days after the completion of the twelve month period ending June 30, 2006 (each, a “Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a copy of each such computation Report of each applicable Adjusted EBITDA Accountants to the Consultant or its representativesPrincipal. (fb) Either party shall have thirty (30) days following receipt of the a Report of Accountants to dispute any computations made therein, by delivery of a written notice to the other party hereto, which notice shall include an explanation of the basis for such dispute. If after such thirty (30) day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final and binding on the parties. (gc) If the Company and the Consultant Principal reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by the parties, and shall be enforceable in a court of law. If the Company and the Consultant Principal are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “Independent Auditors”) for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto may agree) to resolve all items in dispute. In the event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (hd) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owed.

Accounting Procedures. The compensation amount of the Promissory Note to be paid issued pursuant to Sections 3.2 and 3.3 Section 2.1(b) hereof shall be determined in accordance with the following procedure:: 5 (ea) The Company’s independent auditors (the “Accountants”) shall prepare in accordance with GAAP, and deliver to the Company, a report containing a computation of Adjusted EBITDA under Sections 3.2 and 3.3, respectivelySection 2.1, within 90 days following the completion of each the 2005 calendar year year, and within 45 days after the completion of the twelve month period ending June 30, 2006 (each, a “Report of Accountants”). The Company shall promptly deliver, or cause to be delivered, a copy of each such computation Report of each applicable Adjusted EBITDA Accountants to the Consultant or its representativesPrincipal. (fb) Either party shall have thirty (30) days following receipt of the a Report of Accountants to dispute any computations made therein, by delivery of a written notice to the other party hereto, which notice shall include an explanation of the basis for such dispute. If after such thirty (30) day period neither party receives written notice of a dispute, the Report of Accountants shall thereupon be deemed final and binding on the parties. (gc) If the Company and the Consultant Principal reconcile their differences, the applicable Adjusted EBITDA for the relevant time period shall be adjusted accordingly and shall thereupon become binding, final and conclusive upon agreement in writing by the parties, and shall be enforceable in a court of law. If the Company and the Consultant Principal are unable to reconcile their differences in writing within 20 days after written notice is delivered to the other party (the “Reconciliation Period”), the items in dispute shall be submitted to a mutually acceptable accounting firm (other than the Accountants) (the “Independent Auditors”) for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto may agree) to resolve all items in dispute. In the event the parties are unable to agree on a mutually acceptable accounting firm within thirty (30) days of the expiration of the Reconciliation Period, the matter shall be submitted to the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (hd) Notwithstanding any provision in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owed.

Accounting Procedures. The compensation to be paid pursuant to Sections 3.2 (a) For each calendar year during the Applicable Term, Xxxxxx Xxxxxxxx LLP, or the independent accounting firm then auditing the books and 3.3 hereof shall be determined in accordance with the following procedure: (e) The Company’s independent auditors records of Parent (the “"Accountants”) "), shall prepare a report containing an audited balance sheet of the Buyer and a related audited statement of income of the Buyer (and the Company for the period beginning January 1, 1997 and ending on the Closing Date) for the calendar year then ended, prepared in accordance with GAAP, together with a statement of the Accountants based upon such report and deliver stating that it was prepared in accordance with this Agreement and setting forth for the period under examination the calculation of the Earn Out payment (including the calculation of Annual Net Income and Annual Revenues) and all other adjustments required to be made to such audited financial statements in order to make the Company, a report containing a computation of Adjusted EBITDA calculations required under Sections 3.2 and 3.3, respectively, within 90 days following Section 1.7 (the completion of each calendar year (“Report of Accountants”"Annual Determination"). The Company shall promptly deliver, or cause to be delivered, a A copy of each such computation of each applicable Adjusted EBITDA Annual Determination shall be delivered to the Consultant or its representativesShareholders not later than 120 days after the end of the calendar year following the year to which such Annual Determination relates. (fb) Either party If the Shareholders do not agree that any Annual Determination correctly states the Earn Out calculation for the year under examination, the Shareholders shall have thirty promptly (30but not later than 20 days after the delivery to the Shareholders of such Annual Determination) days following receipt of the Report of Accountants to dispute any computations made therein, by delivery of a give written notice to Parent of any disagreement thereto (in reasonable detail describing the other party hereto, which notice shall include an explanation nature and amount of the basis for such disputedisagreement asserted). The Shareholders shall be entitled to engage separate legal counsel and accountants at the sole cost and expense of the Shareholders to represent them in connection with the review of any Annual Determination. If after the Shareholders and Parent reconcile such thirty day period neither party receives written notice of a disputedisagreement, the Report of Accountants shall thereupon be deemed final and binding on the parties. (g) If the Company and the Consultant reconcile their differences, the applicable Adjusted EBITDA for the relevant time period Annual Determination shall be adjusted accordingly and shall thereupon become bindingfinal, final binding and conclusive upon agreement in writing by all of the parties, parties hereto and shall be enforceable in a court of law. If the Company Shareholders and the Consultant Parent are unable to reconcile their differences such disagreement in writing within 20 days after written notice of such disagreement is delivered to the other party (the “Reconciliation Period”)Parent, the items in dispute shall be submitted to the New York office of a mutually acceptable accounting firm (other than selected from among the Accountants) six largest accounting firms in the United States in terms of gross revenues (the “"Independent Auditors”") for final determination, and the calculation of applicable Adjusted EBITDA for the relevant time period Annual Determination shall be deemed adjusted in accordance with the determination of the Independent Auditors and shall become binding, final and conclusive upon all of the parties hereto and enforceable in a court of law. The Independent Auditors shall consider only the items in dispute and shall be instructed to act within 20 days (or such longer period as the parties hereto Shareholders and Parent may agreeagree in writing) to resolve all items in dispute. If the Shareholders do not give notice of any disagreement within 20 days after the delivery of an Annual Determination or if the Shareholders give written notification of their acceptance of an Annual Determination prior to the end of such 20 day period, such Annual Determination shall thereupon become binding, final and conclusive upon all the parties hereto and enforceable in a court of law. (c) In the event the parties Independent Auditors are for any reason unable or unwilling to perform the services required of it under this Section, then Parent and the Shareholders agree on a mutually acceptable to select another accounting firm from among the six largest accounting firms in the United States in terms of gross revenues to perform the services to be performed under this Section by the Independent Auditors. If Parent and the Shareholders fail to select another accounting firm within thirty (30) seven days of after it is determined that the expiration of Independent Auditors will not perform the Reconciliation Periodservices required, either Parent or the matter shall be submitted to Shareholders may request the courts of the State of New York, County of Nassau, which the parties agree shall have the exclusive right to appoint the accounting firm on behalf of the parties. (h) Notwithstanding any provision American Arbitration Association in this Agreement to the contrary, nothing in this Agreement shall require the Company to restate its audited financial statements. The Company may at its sole discretion, with respect to any excess or deficiency in Consultant’s compensation resulting from a dispute resolved pursuant to this Section 3.5, credit the Consultant for any such deficiency or offset any of Consultant’s compensation hereunder for any such excess, and apply such credit or offset (as applicable) in the following calendar year, provided however that any credit shall be paid to Consultant within 30 days of final determination under this Section that such credit is owed.New