EBITDA Adjustment. (a) Concurrently with the delivery to Purchaser of the Audited Statements, Seller shall deliver to Purchaser a preliminary statement ("Preliminary EBITDA Statement") of the EBITDA based on the Audited Statements (which shall include a description in reasonable detail of the components and amounts thereof).
(b) If within ten (10) days following delivery of the Preliminary EBITDA Statement, Purchaser has not given Seller written notice of its objection as to the calculation of EBITDA (which notice shall state in reasonable detail the basis of Purchaser's objection), then the EBITDA calculated by Seller shall be binding and conclusive on the parties and be used in computing any adjustment of the Purchase Price pursuant to this Section 2.3.
(c) If Purchaser duly gives Seller such notice of objection, and if Seller and Purchaser fail to resolve the issues outstanding with respect to the Preliminary EBITDA Statement and the calculation of the EBITDA within ten (10) days of Seller's receipt of Purchaser's objection notice, Seller and Purchaser shall submit the issues remaining in dispute to the Accountants for resolution in accordance with the terms of the Agreement and consistent with the definition of EBITDA set forth herein. If issues are submitted to the Accountants for resolution: (i) Seller and Purchaser shall furnish or cause to be furnished to the Accountants such work papers and other documents and information relating to the disputed issues as the Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Accountants any material relating to the disputed issues and to discuss the issues with the Accountants; (ii) the determination by the Accountants, as set forth in a notice to be delivered to both Seller and Purchaser within ten (10) days of the submission to the Accountants of the issues remaining in dispute, shall be final, binding and conclusive on the parties and shall be used in the calculation of any adjustment of the Purchase Price pursuant to this Section 2.3; and (iii) Seller and Purchaser will each bear fifty percent (50%) of the fees and costs of the Accountants for such determination.
(d) In the event the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule (which shall include a description in reasonable detail of the components and amounts thereof, including the amount of any corporate allocation charge and any insurance allocation charge) exceeds by mor...
EBITDA Adjustment. If the Transferors’ EBITDA for the fiscal year ended June 30, 2013 exceeds AUS$11,200,000, the Cash Payment payable at Closing shall be increased by an amount equal to the product of (a) seven (7) and (b) the difference between (i) Transferors’ EBITDA for the fiscal year ended June 30, 2013 minus (ii) AUS$11,200,000. However, if Transferors’ EBITDA for the fiscal year ended June 30, 2013 is less than or equal to AUS$10,800,000, the Cash Payment payable at Closing shall be decreased by an amount equal to the product of (x) seven (7) and (y) the difference between (i) AUS$10,800,000 and (ii) Transferors’ EBITDA for the fiscal year ended June 30, 2013.
EBITDA Adjustment. Section 3.1
(a) Effective Time Section 4.1 Employees Section 5.19(a) Environmental Audit Report(s) Section 4.5(a) Environmental Consultants Section 4.5(a) Environmental Laws Section 4.5(a) Environmental Liabilities Section 4.5(a) Environmental Permits Section 5.12(a)(i) Equipment Section 1.1(b) Equipment Charges Section 10.3(b)(iii) ERISA Section 5.19(a)(i) Escrow Amount Section 3.5(a)(ii) Estimated Net Asset Value Section 3.1(d) Estimated Purchase Price Section 3.2 Excluded Assets Section 1.2 Excluded Liabilities Section 2.2 Final Purchase Price Section 3.1(a)
EBITDA Adjustment. (i) As soon as reasonably practicable (but no later than February 28, 2018), (A) Parent shall use commercially reasonable efforts to cause Seller to prepare and deliver to Purchaser and Parent copies of Seller’s management account details containing the unaudited balance sheet of each Company and its Subsidiaries as at December 31, 2017 and the related statement of income for the twelve-month period ended December 31, 2017, prepared on a consistent basis with the Company Financial Statements (the “2017 Company Financial Statements”) and (B) as promptly as practicable following receipt of the 2017 Company Financial Statements (but in no event later than five (5) Business Days following Parent’s receipt of the 2017 Company Financial Statements), Parent shall prepare and deliver to Purchaser a written statement (the “2017 EBITDA Statement”) of 2017 EBITDA and 2017 Company EBITDA for each Company, including reasonably detailed calculations of the various amounts of the components of 2017 EBITDA and the 2017 Company EBITDA of each Company. The 2017 EBITDA Statement shall be prepared in good faith in accordance with the terms of this Agreement and otherwise consistent with the Company Financial Statements.
(ii) From and after the delivery of the 2017 Company Financial Statements until the EBITDA Determination Date, Parent shall use commercially reasonable efforts to cause Seller to (A) reasonably cooperate and assist Purchaser and its Representatives in Purchaser’s review of the 2017 Company Financial Statements, (B) permit Purchaser and its Representatives to review the books, records and work papers of the Companies and of Seller and its Affiliates relating to the 2017 Company Financial Statements, and
EBITDA Adjustment. If any party disagrees with any such determination by delivering formal written notice of such disagreement to the other party on or before the expiration of the fifteen (15) day period provided in Section 2.1.1.C. above, then the parties agree to submit the dispute to Deloitte & Touche, L.L.P., who shall determine the accuracy and correctness of the Accountant's original determination within thirty (30) days following such submission. Said determination of Deloitte & Touche, L.L.P. shall be final and binding on the parties hereto. The parties shall each bear one-half (1/2) of the expenses of Deloitte & Touche, L.L.
EBITDA Adjustment. After making the Net Worth Adjustment as provided in Section 2.1.1.A. above, the Base Consideration Amount shall be further adjusted as provided in this Section 2.1.1.
EBITDA Adjustment. The Conversion Price shall be adjusted to the extent that the Corporation's Adjusted EBITDA is less than or more than $17,000,000. For each $500,000 (and/or fraction thereof) that the Corporation's Adjusted EBITDA is greater than $17,000,000, the Conversion Price will be increased by $0.031. For each $500,000 (and/or fraction thereof) that the Corporation's Adjusted EBITDA is less than $17,000,000, the Conversion Price will be decreased by $0.031 (and/or fraction thereof). In no case, however, shall the resulting Conversion Price be less than $1.00 or more than $1.661. For purposes of the adjustment described in this clause (d), the Corporation and the Investors shall engage PricewaterhouseCoopers, LLP ("PWC"), at the Corporation's expense, to calculate the Adjusted EBITDA of the Corporation and to provide a certificate (the "EBITDA CERTIFICATE") to the Corporation and each of the Investors setting forth such calculation. Within 15 days after the issuance of the Corporation's audited financial statements, PWC shall send a draft of the EBITDA Certificate (the "DRAFT EBITDA CERTIFICATE") to the Investors and the Corporation, each of whom shall have 30 days thereafter (the "OBJECTION PERIOD") to make any objection thereto or suggest any changes in order to conform the calculation therein to the terms of this Certificate of Designation. Failure by any party to make any objection or suggest any such changes within the Objection Period will be deemed to constitute acceptance of the Draft EBITDA Certificate. The Corporation will use its best efforts to cause PWC to issue the EBITDA Certificate (the "FINAL EBITDA CERTIFICATE") as promptly as practicable, but in any event no later than 30 days following the expiration of the Objection Period, and the Final EBITDA Certificate shall be binding on all parties, including without limitation the Corporation and the Investors and their successors and assigns."
EBITDA Adjustment. No later than the fourth Business Day prior to the Closing Date, the Sellers shall prepare and deliver to the Purchasers an officer's certificate, certifying as to the Company's estimated cumulative earnings before interest, tax, depreciation and amortization (calculated without taking into account non-recurring items of income and expenses) ("EBITDA"), and attaching a statement thereof, prepared from the books and records of the Company in accordance with GAAP and in a manner consistent with the preparation of the Year-End Financial Statements, (a) for the period from July 30, 2001 to the close of business on the day immediately preceding the Closing Date (the "Estimated YTD EBITDA Amount") and (b) for the period from November 26, 2001 to the close of business on the day immediately preceding the Closing Date (the "Estimated STD EBITDA Amount"). The Purchase Price payable at the Closing shall be reduced by the positive difference or increased by the positive value of the negative difference, in each case on a dollar for dollar basis, between (a) the product of (1) the quotient obtained by dividing (x) the number of days that remain in the Company's fiscal year as of the Closing Date by (y) 365 multiplied by (2) the sum of (x) the Estimated YTD EBITDA Amount, (y) the product obtained by multiplying the EBITDA amount budgeted (the "Remaining Seasonal Budgeted Amount") for the period from the Closing Date to April 28, 2002 as set forth in the Company's annual budget set forth in Schedule ARTICLE II(f)(ii) of the Seller Disclosure Schedule (the "Company's Budget") by the quotient obtained by dividing (i) the Estimated STD EBITDA Amount by (ii) the EBITDA amount budgeted for the period from November 26, 2001 to the close of business on the day immediately preceding the Closing Date as set forth in the Company's Budget and (z) the EBITDA amount budgeted for the period from April 29, 2002 to July 28, 2002 as set forth in the Company's Budget (the "Remaining Post-Season Budgeted Amount") minus (b) the sum of the Remaining Seasonal Budgeted Amount plus the Remaining Post-Season Budgeted Amount. For purposes of this Section 2.03, if the Closing Date shall occur on any day other than a Monday, the Closing Date, as used to calculate any EBITDA for any period that includes a reference to the Closing Date, shall be deemed to occur on the following Monday.
EBITDA Adjustment. (a) As promptly as possible, and in any event within sixty (60) days after August 1, 2008 or the Closing Date, whichever is later, Buyer shall deliver to Sellers a statement from Buyer’s accountants showing the EBITDA for the Company for the fiscal year ended July 31, 2008 (the “Actual EBITDA”) and showing the amount by which the Actual EBITDA is greater than or less than the amount shown on Schedule 2.2.
(b) If the Actual EBITDA is equal or greater than the amount shown on Schedule 2.2, then the Buyer and Sellers shall cause the EBITDA Escrow Amount, with accrued interest, to be released to Sellers according to Schedule 2.2.
(c) If the Actual EBITDA is less than the amount shown on Schedule 2.2 (the amount by which Actual EBITDA is less than the amount shown on Schedule 2.2 referred to as the “EBITDA Shortfall”), then Sellers, subject to any dispute in accordance with Section 2.8, shall promptly, but in no event later than five (5) business days after the delivery of the statement, pay to Buyer, either in cash or by release of some or all of the EBITDA Escrow Amount, an amount equal to the EBITDA Shortfall, provided that to the extent the EBITDA Escrow Amount held under the Escrow Agreement does not satisfy in full such amount of any EBITDA Shortfall, then the Sellers shall be responsible, solidarily, all benefits of division and discussion being hereby expressly waived, to the Buyer for such EBITDA Shortfall owing to the Buyer. To the extent there is any amount of the EBITDA Escrow Amount remaining after any such payment of EBITDA Shortfall to the Buyer, then the balance of such amount shall be distributed to the Sellers pro rata to the distribution ratios set out in Schedule 2.2.
EBITDA Adjustment. 17 2.10. Employees..................................................... 17 2.11. Title IV Reimbursement........................................ 18 2.12. Funding of School Operations Pending DOE Approval............. 18 2.13. Refunds/Enrollment Contracts.................................. 19 2.14. Use of "Xxxxxxxx Colleges, Inc." Name Marked on Inventories... 19 2.15. Prorations.................................................... 19
