EBITDA Determination. Within ninety (90) days after the end of each of the First Period, Second Period and Third Period, Buyer shall cause to be prepared and delivered to Sellers a statement (each, a "Deferred Consideration Statement"), prepared by Buyer acting in good faith, setting forth the Deferred Consideration, if any, with respect to such period, computed in accordance with this Article II. During the 30-day period following the delivery of the Deferred Consideration Statement. Sellers will be permitted to review Buyer's working papers (and all other financial information reasonably requested by Sellers directly) relating to the Deferred Consideration Statement. The Deferred Consideration Statement shall become final and binding on the parties hereto on the tenth day following delivery thereof to Sellers unless the Sellers give written notice of disagreement ("Notice of Disagreement") to Buyer prior to said date. Any Notice of Disagreement shall specify in sufficient detail the nature of any disagreement so asserted, including the specific dollar amount of the Sellers' determination of EBITDA for such period and the basis therefore. If a Notice Disagreement is received by Buyer in a timely manner, then the Deferred Consideration Statement (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any difference they may have with respect to any matter specified in the Notice of Disagreement or (y) the date the disputed matters are finally resolved by the Settlement Accountant (selected as set forth in Section 2.4). During the thirty (30) day period following the delivery of the Notice of Disagreement, the Parties shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement. If, at the end of such thirty (30) day period, the Parties have not reached agreement on such matters, the matters which remain in dispute shall be promptly submitted to the Settlement Accountant for review and resolution. The Settlement Accountant shall render a decision resolving the matters in dispute within thirty (30) days following their submission to such Settlement Accountant by deciding that either the decision of the Sellers or that of Buyer or a position in between those positions (but not higher or lower) is correct with respect to any particular matter. Except as set forth in the next sentence, the cost of any arbitration (including the fees and expenses of the Settlement Accountant) pursuant to this Article II shall be borne by the party whom the Settlement Accountant determines is least correct, in the aggregate, with respect to the matters that the Settlement Accountant has settled. The fees and disbursements of the Sellers incurred in connection with the Notice of Disagreement shall be borne by the Sellers, and the fees and disbursements of Buyer in connection with the preparation of the Deferred Consideration Statement shall be borne by Buyer.
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Samples: Asset Purchase Agreement, Asset Purchase Agreement (Steiner Leisure LTD)
EBITDA Determination. Within ninety (90) days after the end of each of the First Period, Second Period and Third Period, Buyer shall cause to be prepared and delivered to Sellers a statement (each, a "Deferred Consideration Statement"), prepared by Buyer acting in good faith, setting forth the Deferred Consideration, if any, with respect to such period, computed in accordance with this Article II. During the 30-day period following the delivery of the Deferred Consideration Statement. Sellers will be permitted to review Buyer's working papers (and all other financial information reasonably requested by Sellers directly) relating to the Deferred Consideration Statement. The Deferred Consideration Statement shall become final and binding on the parties hereto on the tenth day following delivery thereof to Sellers unless the Sellers give written notice of disagreement ("Notice of Disagreement") to Buyer prior to said date. Any Notice of Disagreement shall specify in sufficient detail the nature of any disagreement so asserted, including the specific dollar amount of the Sellers' determination of EBITDA for such period and the basis therefore. If a Notice Disagreement is received by Buyer in a timely manner, then the Deferred Consideration Statement (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any difference they may have with respect to any matter specified in the Notice of Disagreement or (y) the date the disputed matters are finally resolved by the Settlement Accountant (selected as set forth in Section 2.4). During the thirty (30) day period following the delivery of the Notice of Disagreement, the Parties shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement. If, at the end of such thirty (30) day period, the Parties have not reached agreement on such matters, the matters which remain in dispute shall be promptly submitted to the Settlement Accountant for review and resolution. The Settlement Accountant shall render a decision resolving the matters in dispute within thirty (30) days following their submission to such Settlement Accountant by deciding that either the decision of the Sellers or that of Buyer or a position in between those positions (but not higher or lower) is correct with respect to any particular matter. Except as set forth in the next sentence, the cost of any arbitration (including the fees and expenses of the Settlement Accountant) pursuant to this Article II shall be borne by the party whom the Settlement Accountant determines is least correct, in the aggregate, with respect to the matters that the Settlement Accountant has settled. The fees and disbursements of the Sellers incurred in connection with the Notice of Disagreement shall be borne by the Sellers, and the fees and disbursements of Buyer in connection with the preparation of the Deferred Consideration Statement shall be borne by Buyer.11
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EBITDA Determination. Within ninety For the purposes of Section 3.4.1 the calculation of EBITDA shall be determined by the Buyer Subsidiaries’ management team and approved by the Buyer at quarterly intervals commencing on the last Business Day of the first three months of the First Earn Out Measurement Period and ending on the last Business Day of the last month of the Second Earn Out Measurement Period. No later than forty-five (9045) days after the end of each of the First Period, Second Period and Third Period, Buyer shall cause to be prepared and delivered to Sellers a statement (each, a "Deferred Consideration Statement"), prepared by Buyer acting in good faith, setting forth the Deferred Consideration, if any, with respect to such period, computed in accordance with this Article II. During the 30-day period following the delivery of the Deferred Consideration Statement. Sellers will be permitted to review Buyer's working papers (and all other financial information reasonably requested by Sellers directly) relating to the Deferred Consideration Statement. The Deferred Consideration Statement shall become final and binding on the parties hereto on the tenth day following delivery thereof to Sellers unless the Sellers give written notice of disagreement ("Notice of Disagreement") to Buyer prior to said date. Any Notice of Disagreement shall specify in sufficient detail the nature of any disagreement so asserted, including the specific dollar amount of the Sellers' determination of EBITDA for such period and the basis therefore. If a Notice Disagreement is received by Buyer in a timely manner, then the Deferred Consideration Statement (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any difference they may have with respect to any matter specified in the Notice of Disagreement or (y) the date the disputed matters are finally resolved by the Settlement Accountant (selected as set forth in Section 2.4). During the thirty (30) day period following the delivery of the Notice of Disagreement, the Parties shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement. If, at the end of such thirty (30) day quarterly period, the Parties have not reached agreement on such matters, the matters which remain in dispute Buyer shall be promptly submitted deliver a notice to the Settlement Accountant Seller (each such notice an “EBITDA Earn Out Notice”) specifying the cumulative EBITDA amount for review and resolutionthe applicable portion of the respective twelve (12) calendar month period. The Settlement Accountant Seller shall render a decision resolving the matters in dispute within have thirty (30) days following their submission to such Settlement Accountant by deciding that either review the decision EBITDA Earn Out Notice and provide the Buyer with notice of any dispute the Seller may have with the calculation of the Sellers or EBITDA for the calendar quarter set forth therein. The Buyer Parties shall provide the Seller with reasonable access to books and records of the Buyer Subsidiaries and shall cooperate with the Seller during its review of the EBITDA Earn Out Notice. In the event that the Seller shall dispute the Buyer’s calculation of EBITDA contained in an EBITDA Earn Out Notice, the Buyer or a position and the Seller shall settle any such dispute in between those positions (but not higher or lower) is correct accordance with respect to any particular matter. Except as the procedures set forth in Section 3.5. Unless the next sentenceSeller delivers written notice to the Buyer on or prior to the thirtieth (30th) day after the Seller’s receipt of an EBITDA Earn Out Notice specifying in reasonable detail all items disputed by the Seller in good faith and the basis therefor (an “Earn Out Dispute Notice”), the cost of any arbitration (including the fees and expenses of the Settlement Accountant) pursuant to this Article II Seller shall be borne by the party whom the Settlement Accountant determines is least correct, in the aggregate, with respect deemed to have accepted and agreed to the matters that the Settlement Accountant has settled. The fees and disbursements of the Sellers incurred EBITDA amount specified in connection with the Notice of Disagreement shall be borne by the Sellers, and the fees and disbursements of Buyer in connection with the preparation of the Deferred Consideration Statement shall be borne by Buyersuch EBITDA Earn Out Notice.
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