Common use of EBITDA Adjustment Clause in Contracts

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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by an amount equal to the product of (i) the difference between the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Disclosure Schedule.

EBITDA Adjustment. (ai) Concurrently No later than the tenth day prior to the Closing Date, the Company shall, in consultation with the delivery Buyer, prepare and deliver to Purchaser the Buyer an officer's certificate (the "EBITDA Certificate"), certifying as to the Company's good faith estimate of the Audited StatementsConsolidated EBITDA, Seller shall deliver to Purchaser and attaching a preliminary statement ("Preliminary EBITDA Statement") thereof prepared from the books and records of the Company (the "Closing EBITDA based Amount"). The EBITDA Certificate shall, additionally, set forth the amount by which the Closing EBITDA Amount exceeds, or is less than, as the case may be, the Projected EBITDA Amount for such period as set forth on Exhibit H, hereto (the Audited Statements (which shall include a description in reasonable detail of the components and amounts thereof"EBITDA Adjustment Amount"). (bii) If within ten No later than five days following receipt by Buyer of the EBITDA Certificate, Buyer may object to the Closing EBITDA Amount set forth in the EBITDA Certificate by written notice thereof to the Company (10) the "Disagreement Notice"). The Disagreement Notice shall set forth Buyer's good faith estimate of the Closing EBITDA Amount and the EBITDA Adjustment Amount, and attach a certified statement thereof prepared from the books and records of the Company. The Company and the Buyer shall, during the five days following delivery of the Preliminary Disagreement Notice, use commercially reasonable efforts to reach an agreement regarding the Closing EBITDA Statement, Purchaser has not given Seller written notice of its objection as Amount. Any unresolved dispute among the parties relating to the calculation determination of the Closing EBITDA Amount (an "EBITDA Dispute") shall thereafter be resolved by the Independent Accounting Firm, acting as an expert and not as an arbitrator, which notice shall state in reasonable detail the basis of Purchaser's objection), then the EBITDA calculated by Seller determination shall be binding and conclusive nonappealable. The Independent Accounting Firm shall make its determination as promptly as practicable but in any event no later than March 9, 2003. Each of the Sellers, on the parties one hand, and the Buyer, on the other, shall be used in computing any adjustment responsible for the fees and disbursements of the Purchase Price pursuant to this Section 2.3Independent Accounting Firm in the same proportion as the quotient obtained by dividing (A) the positive difference between (x) such party's determination of the Closing EBITDA Amount and (y) the determination of the Closing EBITDA Amount as made by the Independent Accounting Firm, by (B) the positive difference between the determination of the Closing EBITDA Amount as made by the Company, on the one hand, and the Buyer, on the other. (ciii) If Purchaser duly gives Seller such notice of objection, and if Seller and Purchaser fail to resolve The Purchase Price payable at the issues outstanding with respect to the Preliminary EBITDA Statement and the calculation of the EBITDA within ten Closing shall be adjusted (10x) 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: Certificate, if no Disagreement Notice is delivered, or (iy) 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 determined by the Accountants, as set forth in a notice to be delivered to both Seller and Purchaser within ten (10) days of parties or 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 Independent Accounting Firm pursuant to this Section 2.3; and (iii) Seller and Purchaser will 1.04(c)(ii), in each bear fifty percent (50%) of the fees and costs of the Accountants for such determination.case as follows: (dA) In If the event Closing EBITDA Amount exceeds the amount of Projected EBITDA set forth in Section 2.3(dAmount (the "EBITDA Excess") 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 more than $4,000,000 300,000 (the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3"Basket Amount"), the Purchase Price shall be reduced increased dollar for dollar by an amount equal the EBITDA Excess (less the Basket Amount); provided that if the EBITDA Excess is greater than $2,300,000 (including the Basket Amount) then Buyer may terminate this Agreement pursuant to Section 9.01(h); (B) If the product of Closing EBITDA Amount is less than the Projected EBITDA Amount (ithe "EBITDA Deficiency") by more than the difference between Basket Amount, the amount of Purchase Price shall be decreased dollar for dollar by the EBITDA set forth in Deficiency (less the Basket Amount); provided that if the EBITDA Deficiency is greater than $2,300,000 (including the Basket Amount) then the Company may terminate this Agreement pursuant to Section 2.3(d9.01(i); or (C) If the Closing EBITDA Amount equals the Projected EBITDA Amount (plus or minus the Basket Amount), there shall be no adjustment of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Disclosure SchedulePurchase Price.

EBITDA Adjustment. (a) Concurrently with As promptly as practicable after the Seller’s delivery to Purchaser of the Audited StatementsFinancial Statements pursuant to Section 5.17, but no later than sixty (60) calendar days after such delivery, the Seller shall deliver cause to be prepared and delivered to the Purchaser a preliminary statement ("Preliminary the “EBITDA Statement"”) presenting the Seller’s good faith calculation of 2014 Adjusted EBITDA and the EBITDA Adjustment calculated by reference thereto, prepared in accordance with the protocol described in Schedule 9.01(b). The Seller shall be responsible for its own costs in the preparation of the EBITDA based on the Audited Statements (which shall include a description in reasonable detail of the components and amounts thereof)Statement. (b) If the Purchaser disagrees with the EBITDA Statement or calculation of any of the items set forth thereon pursuant to Section 1.05(a), then within ten (10) calendar days following delivery receipt of the Preliminary EBITDA Statement, the Purchaser has not given Seller may deliver a written notice of its objection disagreement to the Seller specifying those items or amounts in the EBITDA Statement as to which the Purchaser disagrees and the Purchaser’s calculation of such amounts. The Purchaser shall be deemed to have agreed with all other items and amounts contained in the EBITDA Statement and the calculation of EBITDA (which notice shall state such amounts not objected to 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 2.3such notice. (c) If Purchaser duly gives Seller such a notice of objectiondisagreement shall be duly delivered pursuant to Section 1.05(b), the Purchaser and if the Seller and Purchaser fail shall, during the thirty (30) calendar days following such delivery, use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amounts of 2014 Adjusted EBITDA, which amount shall not be less than the amount thereof shown in the Purchaser’s calculation delivered pursuant to Section 1.05(b) nor more than the amount thereof shown in the Seller’s calculation delivered pursuant to Section 1.05(a). If the parties so resolve all disputes, the issues outstanding with respect computation of the 2014 Adjusted EBITDA and/or the EBITDA Adjustment (as applicable), as amended to the Preliminary extent necessary to reflect the resolution of the dispute, shall be conclusive and binding on the parties. If during such period the Purchaser and the Seller are unable to reach an agreement, they shall promptly thereafter cause the Accounting Arbiter to review the adjustment process contained in this Agreement and the disputed items or amounts for the purpose of calculating the 2014 Adjusted EBITDA and/or the EBITDA Adjustment (as applicable). In making such calculation, the Accounting Arbiter shall consider only those items or amounts in the EBITDA Statement and the calculation Purchaser’s notice described in Section 1.05(b). The Accounting Arbiter shall deliver to the Purchaser and the Seller, as promptly as practicable (but in any case no later than thirty (30) days from the date of engagement of the EBITDA within ten (10) days Accounting Arbiter), a report setting forth such calculation. Such report shall be final and binding upon the Purchaser and the Seller with no right to appeal the decision of Seller's receipt the Accounting Arbiter, absent manifest error. The fees and expenses of Purchaser's objection notice, the Accounting Arbiter shall be borne by the Seller and the Purchaser shall submit in inverse proportion to the issues remaining dollar amount of the items 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 as submitted to the Accountants for resolution: (i) Seller and Purchaser Accounting Arbiter as to which such party prevails in the arbitration, which proportionate allocations shall furnish or cause to also 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 determined by the Accountants, as set forth in a notice to be delivered to both Seller and Purchaser within ten (10) days Accounting Arbiter at the time it renders its determination on the merits of the submission to the Accountants of the issues remaining matters in dispute. The Accounting Arbiter may not award damages, shall be final, binding and conclusive on the parties and shall be used in the calculation of interest or penalties to any adjustment of the Purchase Price pursuant party with respect 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 determinationany matter. (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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by an amount equal to the product of (i) the difference between the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Disclosure Schedule.

EBITDA Adjustment. (a) Concurrently On or before April 1, 2002, the Buyer shall prepare and deliver to the Seller a balance sheet for the Company for the period from the Closing Date through December 31, 2001 (the "EBITDA BALANCE SHEET"). The EBITDA Balance Sheet shall be prepared in accordance with GAAP, applied in the delivery to Purchaser same manner used by the Company in preparing the Financial Statements and shall be audited by the Boston, Massachusetts office of PricewaterhouseCoopers. The EBITDA Balance Sheet shall be accompanied by a profit and loss statement of the Audited StatementsCompany as well as a calculation of EBITDA of the Company (the "EBITDA CALCULATION"), in each case for the period from the Closing Date through December 31, 2001. The Seller shall deliver to Purchaser a preliminary statement ("Preliminary EBITDA Statement") notify the Buyer in writing within 30 days following delivery of the EBITDA based Balance Sheet and the EBITDA Calculation if the Seller disputes any item therein (the "EBITDA ADJUSTMENT NOTICE"), and if the EBITDA Adjustment Notice is not delivered within such time period, the Seller shall be deemed to have accepted the EBITDA Balance Sheet and the EBITDA Calculation and they shall be final and binding upon all the parties hereto. If the Seller timely disputes any item in the EBITDA Balance Sheet or the EBITDA Calculation, the Seller and the Buyer agree to use their best efforts to reach agreement upon any disputed items in the EBITDA Balance Sheet and the EBITDA Calculation (the "EBITDA DISPUTED ITEMS"). Any EBITDA Disputed Items remaining unresolved on the Audited Statements (which 30th day after delivery by the Seller of an EBITDA Adjustment Notice shall include a description in reasonable detail forthwith be submitted to the Arbitrator. The Seller and the Buyer shall promptly present their positions with respect to the EBITDA Disputed Items to the Arbitrator, together with such other materials as the Arbitrator may deem appropriate. Any determination by the Arbitrator with respect to any EBITDA Disputed Item shall be final and binding on each party. The cost of the components Arbitrator shall be borne 50% by the Seller and amounts thereof)50% by the Buyer. (b) If the EBITDA Calculation equals or exceeds $1,100,000, then on the date which is one year from the Closing Date (i) the Buyer shall pay to the Seller an aggregate amount of $1,500,000 within ten (10) days following delivery five Business Days after the final determination of the Preliminary EBITDA StatementCalculation and (ii) the Seller shall deliver checks (minus any applicable employee withholding Taxes withheld from the Management Payments, Purchaser the "MANAGEMENT WITHHOLDING TAX AMOUNT") to each of John A. Robic, Robert Weatherwax, Kevin Krom and David Fabianski (eaxx x "XXXXXXX" xxx xxxxxxxxxxxx, txx "XXXXXXMENT XXXXX"), xxx xxch Manager shall receive the amount set forth in the Conversion and Release Agreement, in the form attached hereto as Exhibit D, from the Manager executed and delivered to the Buyer and the Seller prior to the date the Management Payments are made (less the applicable Management Withholding Tax Amount), and the Seller shall deliver to the Buyer evidence of such payments and the amounts of such payments promptly thereafter, and the Seller shall simultaneously deliver to the appropriate Taxing Authorities the Management Withholding Tax Amount and the applicable employer share of employment Taxes due on the Management Payments, if any; provided, however, that the Buyer shall have no obligation to deliver to the Seller any portion of the Management Payment for any Manager who has not given Seller written notice of its objection as executed and delivered to the calculation of EBITDA (which notice shall state in reasonable detail Buyer and the basis of Purchaser's objection), then Seller on or prior to the EBITDA calculated by date that the Management Payments are to be made the Conversion and Release Agreement and the Seller shall be binding and conclusive on the parties and be used in computing have no obligation to make any adjustment of the Purchase Price pursuant payment to this Section 2.3such Manager. (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 Calculation is less than $1,100,000 but equal to or in excess of Seller's receipt of Purchaser's objection notice$825,000, Seller and Purchaser shall submit then on the issues remaining in dispute to date which is one year from 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: Closing Date (i) Seller and Purchaser the Buyer shall furnish or cause to be furnished deliver to the Accountants such work papers and other documents and information relating Seller an aggregate amount equal to the disputed issues as sum of (I) $500,000 plus (II) the Accountants may request product of: (A) the EBITDA Calculation minus $825,000 multiplied by (B) 1.818, and are available to that party or its agents and the Seller shall be afforded deliver the opportunity to present foregoing amount (minus the Management Withholding Tax Amount) to the Accountants any material relating to the disputed issues Management Group, 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, each Manager 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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by receive an amount equal to the product of: (A) the amount set forth in the Conversion and Release Agreement, in the form attached hereto as Exhibit D, from the Manager executed and delivered to the Buyer and the Seller prior to the date the Management Payments are made (less the applicable Management Withholding Tax Amount) multiplied by (B) a fraction, the numerator of which is the amount delivered to the Seller under this clause (i) and denominator of which is $1,000,000, and the difference between Seller shall simultaneously deliver to the amount appropriate Taxing Authorities the Management Withholding Tax Amount and the applicable employer share of EBITDA set forth in Section 2.3(d) employment Taxes due on the Management Payments, if any; provided however, that the Buyer shall have no obligation to deliver to the Seller any portion of the Disclosure Schedule Management Payment for any Manager who has not executed and delivered to the Buyer and the Seller on or prior to the date the Management Payments are made, the Conversion and Release Agreement and the Seller shall have no obligation to make any payment to such Manager and (ii) the Buyer shall pay to the Seller an aggregate amount equal to the product of: (A) the EBITDA Calculation MINUS $825,000 multiplied by (B) 1.818. (d) If the EBITDA Calculation is less than $825,000 then (i) no Management Payment shall be due or paid to any member of EBITDA based on the Audited Statements Management Group, and (ii) no payment shall be due or paid to the Seller as finally determined a result of or pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Disclosure Schedule2.9.

EBITDA Adjustment. (a) Concurrently with Within ninety (90) days after the delivery to Closing Date, Purchaser of the Audited Statements, Seller shall deliver to Purchaser Seller Representative a preliminary statement ("Preliminary EBITDA Statement") schedule setting forth its calculation of the Adjusted EBITDA based for the Company for the twelve month period ending on May 31, 2008 (the Audited Statements “Actual Adjusted EBITDA”). The Seller Representative shall have a thirty (which shall include a description in reasonable detail 30) day period to review the Purchaser’s calculation of the components and amounts thereof). Actual Adjusted EBITDA. If Seller Representative disputes Purchaser’s calculation of the Actual Adjusted EBITDA, Seller Representative shall deliver a written notice (b“EBITDA Dispute Notice”) If to Purchaser within ten thirty (1030) days following of delivery of Purchaser’s calculation. Seller Representative shall set forth in detail in the Preliminary EBITDA StatementDispute Notice the basis for its disagreement with the Purchaser’s calculation of the Actual Adjusted EBITDA. If Seller Representative fails to deliver the EBITDA Dispute Notice within the allotted time period, Purchaser has not given Seller written notice of its objection as Representative shall be deemed to have agreed to the given calculation of EBITDA (delivered by Purchaser, which notice shall state in reasonable detail the basis of Purchaser's objection), then the EBITDA calculated by Seller calculation shall be final, conclusive and binding and conclusive on upon all of the parties and be used in computing any adjustment of the Purchase Price pursuant to this Section 2.3. (c) hereto. 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 Representative disputes the calculation of the Actual Adjusted EBITDA within ten the allotted time period, the parties in good faith will attempt to jointly resolve any dispute during the thirty day period following the delivery of the EBITDA Dispute Notice. If Purchaser and Seller Representative can resolve their dispute and agree upon the calculation of the Actual Adjusted EBITDA, they shall memorialize their agreement in writing and such mutually agreed upon figure shall be final, conclusive and binding upon all of the parties. If Purchaser and Seller Representative cannot resolve the dispute to their mutual satisfaction, Purchaser and Seller Representative shall engage the Independent Accountant to determine the appropriate amount of Actual Adjusted EBITDA consistent with this Agreement. The fees and expenses of the Independent Accountant shall be shared equally by Purchaser, on the one hand, and Seller Parties, on the other hand, with each being severally, but not jointly, responsible for one half of such fees and expenses. Each of Purchaser and Seller Parties shall provide the Independent Accountant such of their respective work papers as may be requested by the Independent Accountant. The Independent Accountant shall be requested to complete its engagement within forty-five (1045) days of Seller's receipt of Purchaser's objection notice, being retained by Purchaser and Seller and Purchaser shall submit the issues remaining in dispute to the Accountants for resolution in accordance with the terms Parties. The determination 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, Independent Accountant shall be final, binding and conclusive on upon 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 determinationparties. (db) In Upon the final, conclusive and binding determination of the Actual Adjusted EBITDA in accordance with Section 2.4(b), if such amount is less than the Estimated Adjusted EBITDA: (i) The difference between the Cash Component determined using the Estimated Adjusted EBITDA and the Cash Component determined using the Actual Adjusted EBITDA (the “Cash Shortfall”) shall be deducted from the Cash Holdback. If, after such deduction, any cash remains, such remainder shall promptly be paid to Seller Parties, subject to any further adjustments as contemplated by Section 2.5 below. If the Cash Shortfall exceeds the Cash Holdback, Seller Parties shall promptly (and in any event within five (5) days) jointly and severally pay the amount of such excess to Purchaser in cash. (ii) The difference between the Stock Component determined using the Estimated Adjusted EBITDA set forth in Section 2.3(d) and the Stock Component determined using the Actual Adjusted EBITDA shall hereinafter be referred to as the (“Stock Shortfall”). One-half 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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price Stock Shortfall shall be reduced by deducted from the Stock Holdback and Seller Parties shall promptly (and in any event within five (5) days) return to Purchaser shares of common stock of Brookside paid at Closing in an amount equal to the product other half of the Stock Shortfall. Subject to the adjustment contemplated by Sections 2.5 below and Purchaser’s rights of set-off, pursuant to Section 7.3(b), any remaining shares in the Stock Holdback, as adjusted pursuant to this Section, shall be paid to Seller Parties on the first anniversary of the Closing Date. (c) Upon the final, conclusive and binding determination of the Actual Adjusted EBITDA in accordance with Section 2.4, if such amount is more than the Estimated Adjusted EBITDA: (i) Purchaser shall promptly pay Seller Parties, in immediately available funds, an amount equal to the difference between the amount of Cash Component determined using the Estimated Adjusted EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on Cash Component determined using the Audited Statements as finally determined pursuant to this Section 2.3 and Actual Adjusted EBITDA; and (ii) 8.65. For Purchaser shall promptly cause Brookside to issue to Seller Parties, such number of shares of common stock of Brookside equal to (A) the avoidance of doubt, an example of amount equal to the calculation of difference between the Stock Component determined using the Estimated Adjusted EBITDA for and the year ended January 1, 2005 is set forth in Section 2.3(dStock Component determined using the Actual Adjusted EBITDA divided by (B) of the Disclosure SchedulePer Share Price.

EBITDA Adjustment. (a) Concurrently with Promptly after the delivery to Closing Date, but in no event more than 45 days thereafter, the Purchaser of the Audited Statements, Seller shall deliver to Purchaser a preliminary the Seller an unaudited statement (the "Preliminary EBITDA Closing Statement") setting forth (i) the amounts of the EBITDA based on Due From Rite Aid Account and the Audited Statements Due To Rite Aid Account immediately prior to the cancellation of such accounts pursuant to Section 1.6 hereof and (ii) the amount (which shall include a description in reasonable detail may be positive or negative) of earnings before interest, taxes, depreciation and amortization of the components Company and amounts thereofits subsidiaries on a consolidated basis for the period beginning on and including April 22, 2000 and ending on and including the last business day prior to the Effective Date (the "EBITDA Amount"). . The Closing Statement (bi) If within ten (10) days following delivery shall be prepared in accordance with generally accepted accounting principles consistent with the accounting principles, practices and methodologies used in preparation of the Preliminary EBITDA Statementfinancial statements referenced in Section 2.4 hereof (except that, Purchaser has not given Seller written notice regardless of its objection as to the calculation of EBITDA (which notice shall state in reasonable detail the basis of Purchaser's objection)whether so required by generally accepted accounting principles, 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 Amount set forth in the Closing Statement shall not reflect (10x) days of Seller's receipt of Purchaser's objection notice, Seller and Purchaser shall submit the issues remaining in dispute any Disregarded Liability (as defined herein) or (y) any transactions related to the Accountants for resolution in accordance with the terms sale 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; Designated Real Property, (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 shall not give effect 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; transactions contemplated hereby and (iii) shall disregard any change, event or circumstance occurring after the Effective Date. Without the written consent of the Seller, the Purchaser shall not make any adjustments to the Closing Statement following the delivery thereof to the Seller. The Purchaser shall provide the Seller and its representatives with copies of the Purchaser's and the Company's work papers and access to the Purchaser's and the Company's accountants' work papers generated in connection with the preparation of the Closing Statement, as well as access to employees and representatives of the Company and its accounting firms to assist the Seller in its review of such work papers. In addition, following delivery of the Closing Statement, the Seller and its representatives shall be entitled to review the books and records of the Company and its subsidiaries. If the Seller accepts the Closing Statement, the Seller shall, within 30 days of delivery of the Closing Statement to the Seller, deliver to the Purchaser will each bear fifty percent a written notice to such effect and, upon delivery of such notice, the Closing Statement shall be final and binding upon the parties for purposes of this Agreement. For purposes of this Agreement, "Disre garded Liability" means any liability or expense (50%other than normal salary payments and routine related employee benefit expenses during the period beginning on and including April 22, 2000 and ending on and including the last business day prior to the Effective Date) arising from any of the employment, severance and other compensation agreements and arrangements which have been disclosed in Section 2.5 or Section 2.12(a)(xii) 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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by an amount equal to the product of (i) the difference between the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Seller Disclosure Schedule.

EBITDA Adjustment. (a) Concurrently with the delivery to Purchaser The number of the Audited Statements, Seller Shares in escrow 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 first 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 adjusted in accordance with this Section 2.2 based upon Purchaser's Adjusted EBITDA (as defined below) determined by Parent's public accounting firm, which shall be of nationally recognized reputation (the terms "Accountants"). The parties to this Agreement agree that Xxxxxx Xxxxxxxx LLP is such a firm and is acceptable to each of them. (Xxxxxx Xxxxxxxx shall not be deemed to be an arbitrator, however, and the determination of Adjusted EBITDA as provided in this Section 2.2 shall be subject to arbitration as provided in this Agreement.) Not later than February 28, 1999, the Accountants shall complete their audit of the Agreement and consistent with financial statements of Purchaser for the definition period from the Closing Date through December 31, 1998. As a part of EBITDA set forth herein. If issues are submitted to their audit the Accountants for resolutionshall determine "Adjusted EBITDA," which shall mean EBITDA (as defined below), adjusted as follows: EBITDA shall be annualized by dividing EBITDA by the number of days in the period from the Closing Date through December 31, 1998, then multiplying the result by 365. Adjusted EBITDA is equal to annualized EBITDA multiplied by six (6), minus the sum of: (i) Seller and the Net Cash (as defined below) provided to 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 by Parent 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; affiliates through December 31, 1998; (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 amount of annualized EBITDA derived from sales by Purchaser to Genesis Direct, Inc. and costs Control Group, Ltd. and their customers who are not already customers of Seller on the Closing Date or listed in Schedule 2.2(a) to this Agreement; -------------- (iii) The excess liability, if any, as of the Accountants Closing Date for postage collected by Seller from customers but not expended on behalf of customers over the sum of funds held in escrow or otherwise segregated to pay postage for customers (provided that such determination. (d) In the event the amount of liability shall not be taken into account in calculating EBITDA set forth given that it is being deducted here 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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by an amount equal to the product of (i) the difference between the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA Adjusted EBITDA); and (iv) all legal fees and disbursements owed to The Hishon Firm, LLC for legal services related to the year ended January 1Indemnified Tax Claim that were provided during the period beginning on the Closing Date and ending on December 31, 2005 is set forth in Section 2.3(d) of the Disclosure Schedule1998.

EBITDA Adjustment. (ai) Concurrently with Within two days prior to the delivery to Purchaser of the Audited StatementsClosing Date, Seller Sellers shall deliver to Purchaser Buyer an estimate of EBITDA (as defined below) of the Company for the nine months ended May 31, 2002 (the "EBITDA Estimate"). Upon completion of the Company's audited financial statements for the nine months ended May 31, 2002, which shall be no later than November 30, 2002 (with copies furnished promptly to Sellers), Buyer and its auditors shall, in good faith, calculate EBITDA of the Company for such period and prepare a preliminary statement (the "Preliminary EBITDA Statement") setting forth such calculation. The fee for such audit, calculation and statement shall be paid for by Buyer. To the extent that EBITDA as set forth in the EBITDA Statement is less than the EBITDA Estimate, Sellers shall pay to Buyer, pro rata among Sellers, an amount (the "Shortfall Amount") equal to the difference between the EBITDA Estimate and EBITDA as set forth in the EBITDA Statement (the "EBITDA Shortfall") multiplied by seven (7). The Shortfall Amount shall be payable by wire transfer of immediately available funds to such bank account as Buyer shall theretofore designate in writing on the fifth day following the earliest to occur of (A) the expiration of the EBITDA based on Dispute Notice Period (as defined below), if Sellers fail to deliver an EBITDA Dispute Notice (as defined below) within the Audited Statements EBITDA Dispute Notice Period, (which shall include a description B) the date of resolution of matters stated in reasonable detail an EBITDA Dispute Notice and (C) the date of delivery of the components and report by the Accountant (as defined below) contemplated in the next paragraph; provided, that Buyer must satisfy any amounts thereof)due under this paragraph from the Post-Closing Escrow Amount. (bii) If Sellers object to the calculations of EBITDA set forth in the EBITDA Statement, they shall jointly notify Buyer in writing of their objection setting forth the amount in dispute and a reasonably detailed statement of the basis thereof (an "EBITDA Dispute Notice") within ten 30 days (10the "EBITDA Dispute Notice Period") of delivery of such EBITDA Statement; PROVIDED, HOWEVER, that if Sellers fail to deliver an EBITDA Dispute Notice within the prescribed period, such EBITDA Statement shall be final and binding. If Sellers deliver an EBITDA Dispute Notice, Buyer and Sellers shall negotiate in good faith in an attempt to resolve their differences within the following 30 days following delivery of the Preliminary Dispute Notice (the "Resolution Period"). If, at the end of the Resolution Period, Buyer and Sellers have not reached an agreement in writing, such EBITDA Statement, Purchaser has not given Seller written notice of its objection as Statement shall be submitted to a mutually agreed upon accounting firm that is nationally recognized (the calculation of EBITDA (which notice shall state in reasonable detail the basis of Purchaser's objection"Accountant"), then the EBITDA calculated by Seller who shall be binding engaged by Buyer and conclusive on Sellers within 10 days after the parties and be used in computing any adjustment end of the Purchase Price pursuant to this Section 2.3. (c) If Purchaser duly gives Seller such notice Resolution Period for the purpose of objection, and if Seller and Purchaser fail to resolve the issues outstanding making a final determination with respect to such EBITDA Statement. Buyer, on the Preliminary one hand, and Sellers, on the other hand, may submit documentation supporting their respective positions to the Accountant. Buyer and Sellers shall take all action reasonably required to cause the Accountant to make its determination within 30 days after the date of its engagement. Upon making its determination, the Accountant shall deliver to Buyer and Sellers (i) a report setting forth its adjustments, if any, to such EBITDA Statement and the calculation of the EBITDA within ten (10) days of Seller's receipt of Purchaser's objection noticecalculations supporting such adjustments, 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) such EBITDA Statement accompanied by a schedule setting forth the determination calculation of EBITDA. Such report and calculation of EBITDA shall be final, conclusive and binding on the parties hereto and not subject to appeal, absent fraud or manifest error. The fees and expenses incurred in connection with the engagement of the Accountant shall be borne by Buyer in proportion to the Accountantspercentage of the disputed amount awarded to Sellers based on the Accountant's determination. The remaining fees and expenses of the Accountant shall be borne by Sellers. (iii) As used in this Section 1, "EBITDA" shall mean earnings before interest, taxes, depreciation, amortization and extraordinary gains or loss, all as set forth in a notice to be delivered to both Seller and Purchaser within ten (10) days the audited financial statements of the submission to the Accountants of the issues remaining in dispute, Company. Such audited financial statement shall be final, binding and conclusive prepared based upon generally accepted accounting principles as in effect on the parties and shall be used in the calculation of any adjustment of the Purchase Price pursuant to this Section 2.3; and date hereof, consistently applied (iii) Seller and Purchaser will each bear fifty percent (50%) of the fees and costs of the Accountants for such determination"GAAP"). (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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by an amount equal to the product of (i) the difference between the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Disclosure Schedule.

EBITDA Adjustment. (a) Concurrently with Promptly after the delivery to Closing Date, but in no event more than 45 days thereafter, the Purchaser of the Audited Statements, Seller shall deliver to Purchaser a preliminary the Seller an unaudited statement (the "Preliminary EBITDA Closing Statement") setting forth (i) the amounts of the EBITDA based on Due From Rite Aid Account and the Audited Statements Due To Rite Aid Account immediately prior to the cancellation of such accounts pursuant to Section 1.6 hereof and (ii) the amount (which shall include a description in reasonable detail may be positive or negative) of earnings before interest, taxes, depreciation and amortization of the components Company and amounts thereofits subsidiaries on a consolidated basis for the period beginning on and including April 22, 2000 and ending on and including the last business day prior to the Effective Date (the "EBITDA Amount"). . The Closing Statement (bi) If within ten (10) days following delivery shall be prepared in accordance with generally accepted accounting principles consistent with the accounting principles, practices and methodologies used in preparation of the Preliminary EBITDA Statementfinancial statements referenced in Section 2.4 hereof (except that, Purchaser has not given Seller written notice regardless of its objection as to the calculation of EBITDA (which notice shall state in reasonable detail the basis of Purchaser's objection)whether so required by generally accepted accounting principles, 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 Amount set forth in the Closing Statement shall not reflect (10x) days of Seller's receipt of Purchaser's objection notice, Seller and Purchaser shall submit the issues remaining in dispute any Disregarded Liability (as defined herein) or (y) any transactions related to the Accountants for resolution in accordance with the terms sale 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; Designated Real Property, (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 shall not give effect 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; transactions contemplated hereby and (iii) shall disregard any change, event or circumstance occurring after the Effective Date. Without the written consent of the Seller, the Purchaser shall not make any adjustments to the Closing Statement following the delivery thereof to the Seller. The Purchaser shall provide the Seller and its representatives with copies of the Purchaser's and the Company's work papers and access to the Purchaser's and the Company's accountants' work papers generated in connection with the preparation of the Closing Statement, as well as access to employees and representatives of the Company and its accounting firms to assist the Seller in its review of such work papers. In addition, following delivery of the Closing Statement, the Seller and its representatives shall be entitled to review the books and records of the Company and its subsidiaries. If the Seller accepts the Closing Statement, the Seller shall, within 30 days of delivery of the Closing Statement to the Seller, deliver to the Purchaser will each bear fifty percent a written notice to such effect and, upon delivery of such notice, the Closing Statement shall be final and binding upon the parties for purposes of this Agreement. For purposes of this Agreement, "Disregarded Liability" means any liability or expense (50%other than normal salary payments and routine related employee benefit expenses during the period beginning on and including April 22, 2000 and ending on and including the last business day prior to the Effective Date) arising from any of the employment, severance and other compensation agreements and arrangements which have been disclosed in Section 2.5 or Section 2.12(a)(xii) 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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by an amount equal to the product of (i) the difference between the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Seller Disclosure Schedule.

EBITDA Adjustment. (a) Concurrently with On or before February 28, 2020, Parent shall deliver or cause to be delivered to the delivery to Purchaser Equityholder Representative, a copy of its good faith calculation of the Audited StatementsCompany’s EBITDA for fiscal year 2019 (the “2019 EBITDA Amount”), Seller shall deliver together with all supporting financial statements and a statement regarding Parent’s good faith determination as to Purchaser a preliminary statement ("Preliminary EBITDA Statement") of whether the EBITDA based on Target was met and any resulting EBITDA Adjustment (the Audited Statements (which shall include a description in reasonable detail of the components and amounts thereof“EBITDA Notice”). (b) If within ten Equityholder Representative shall have a period of thirty (1030) days following delivery from the date that Parent delivers the EBITDA Notice (the “EBITDA Review Period”) to notify Parent in writing of its good faith belief that the 2019 EBITDA Amount or any components thereof have not been calculated in accordance with this Agreement. During the EBITDA Review Period, Parent shall give Equityholder Representative and its Representatives reasonable access (during regular business hours and upon reasonable notice) to the books, records, files, documents and materials of the Preliminary Business and all personnel with knowledge of information relevant to the determination of the 2019 EBITDA StatementAmount and any components thereof. If Equityholder Representative disagrees with the amounts set forth in the EBITDA Notice, Purchaser has not given Seller Equityholder Representative shall deliver to Parent a written notice of its objection as disagreement (the “EBITDA Dispute Notice”) prior to the expiration of the EBITDA Review Period setting forth in reasonable detail the amount, nature and the basis for such disputed items, including a revised calculation of the 2019 EBITDA Amount. If Equityholder Representative fails to deliver an EBITDA Dispute Notice to Parent prior to the expiration of the EBITDA Review Period, Equityholder Representative will be deemed to have accepted and agreed to the calculation of the 2019 EBITDA Amount. If Equityholder Representative delivers an EBITDA Dispute Notice to Parent during the EBITDA Review Period, Equityholder Representative and Parent shall attempt in good faith to resolve their differences with respect to the disputed items (which notice shall state or calculations) specified in reasonable detail the basis EBITDA Dispute Notice within thirty (30) days from the date of Purchaser's objectionthe EBITDA Dispute Notice (the “EBITDA Resolution Period”), then and all other items in the EBITDA calculated Notice will be final, binding and conclusive. Any resolution by Seller Equityholder Representative and Parent during the EBITDA Resolution Period as to any such disputed items shall be set forth in writing and will be final, binding and conclusive on the parties and be used in computing any adjustment of the Purchase Price pursuant to this Section 2.3conclusive. (c) If Purchaser duly gives Seller Parent and Equityholder Representative cannot reach agreement during the EBITDA Resolution Period (or such notice of objectionlonger period as the parties may mutually agree), then either party may refer any items that remain in dispute (the “EBITDA Disputed Items”) to the Independent Accountant for binding resolution. Equityholder Representative and Parent shall give the Independent Accountant reasonable access to documents, records, work papers, facilities and personnel as reasonably necessary to perform its function as arbitrator. Any documents submitted by either Equityholder Representative or Parent to the Independent Accountant, either unilaterally or at the Independent Accountant’s request, shall be simultaneously submitted to the other party. The Independent Accountant’s jurisdiction shall be limited to the EBITDA Disputed Items, taking into account at face value the items in the EBITDA Notice that were not specifically objected to in the EBITDA Dispute Notice or that were otherwise resolved between Parent and Equityholder Representative in accordance with Section 2.09 (b), and if Seller in resolving each EBITDA Disputed Item, the Independent Accountant may not assign a value to any EBITDA Disputed Item greater than the greatest value for such EBITDA Disputed Item claimed by any party or less than the lowest value for such EBITDA Disputed Item claimed by any party. The opinion of the Independent Accountant is to be based solely on presentations or materials provided by Parent or Equityholder Representative or their respective Representatives and Purchaser fail not by independent review or with regard to resolve principles of equity. The Independent Accountant shall deliver to Equityholder Representative and Parent concurrently, as promptly as may be reasonably practicable, and in no event later than forty-five (45) days, after the issues outstanding with respect to the Preliminary EBITDA Statement and the calculation Independent Accountant’s receipt of the EBITDA within ten (10) days Disputed Items, a written opinion setting forth a final determination of Seller's receipt of Purchaser's objection notice, Seller and Purchaser the EBITDA Disputed Items which determination shall submit the issues remaining in dispute to the Accountants for resolution be in accordance with the terms provisions of this Agreement. The determination of the Agreement Independent Accountant shall, absent a showing of fraud or manifest error on its face, be final and consistent with binding on the definition of EBITDA set forth herein. If issues are submitted to the Accountants for resolution: (i) Seller parties, and Purchaser shall furnish or cause to be furnished to the Accountants such work papers non-appealable 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 incontestable 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 each of their respective Affiliates, successors and assigns, and not subject to collateral attack for any reason, and effective as of the date the Independent Accountant’s written opinion is received by Parent and Equityholder Representative. All of the costs and expenses of the Independent Accountant shall be used in paid proportionately by Equityholder Representative, on the calculation of any adjustment of one hand, and Parent, on the Purchase Price pursuant other hand, based upon the percentage that the amount actually contested but not awarded to this Section 2.3; Equityholder Representative or Parent, respectively, bears to the aggregate amount actually contested by Equityholder Representative and (iii) Seller Parent. Each party shall be responsible for its own legal, accounting and Purchaser will each bear fifty percent (50%) of the other fees and costs of the Accountants for expenses incurred in connection with participating in such determinationdispute resolution procedure. (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 more than $4,000,000 the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3, the Purchase Price shall be reduced by an amount equal to the product of (i) the difference between the amount of EBITDA set forth in Section 2.3(d) of the Disclosure Schedule and the amount of EBITDA based on the Audited Statements as finally determined pursuant to this Section 2.3 and (ii) 8.65. For the avoidance of doubt, an example of the calculation of EBITDA for the year ended January 1, 2005 is set forth in Section 2.3(d) of the Disclosure Schedule.