Cash Reconciliation. (a) The parties acknowledge and agree as follows: (i) Seller is entitled to retain all Cash of the Business (other than Restricted Cash) as of June 30, 2005. All Cash of the Business from and after such date shall be retained by the Companies, other than net amounts payable to or by Seller and its Affiliates (other than the Companies and its Subsidiaries) by or to the Companies and their Subsidiaries in accordance with the Intercompany Agreements (the “Closed Loop”). (ii) The Closed Loop shall be calculated for the period from and including July 1, 2005 through and including August 31, 2005 pursuant to the adjustment set forth in Section 2.3(c)(ii). The calculation of such adjustment is reflected in the schedules set forth in Schedule II to this Amendment (the “Cash Reconciliation Schedule”), which sets forth the Net Due amount for which adjustment shall be made pursuant to Section 2.3(c)(ii). (iii) The Closed Loop shall be calculated for the period from and including September 1, 2005 through and including the date immediately prior to the Closing Date pursuant to the adjustment set forth below in this Section 2.5. (b) Within forty-five (45) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement for the period from and including September 1, 2005 through and including the date immediately prior to the Closing Date, setting forth, the following (the “Preliminary Cash Statement”): (i) reconciliations of the inter-company accounts of Seller and its Subsidiaries (other than the Companies and their Subsidiaries), on the one hand, and the Companies and their Subsidiaries, on the other hand (“Inter-Company Accounts”); (ii) activity flowing through the Inter-Company Accounts, broken out between cash activity and non-cash activity; (iii) cash activity through the Inter-Company Accounts broken out between (x) net inter-company agreement activity, (y) net cash transfer activity and (z) net payments made by Seller on behalf of the Business; and (iv) a reconciliation of the net amount due to/due from Seller in accordance with Section 2.5(a)(iii) (the “Net Due”) with supporting documentation for items (i) — (iii) above. (c) The Preliminary Cash Statement shall be prepared and the Net Due amount shall be calculated using the same policies, procedures and methodologies used in preparing the Cash Reconciliation Schedule and consistent with Section 2.3(c). (d) Seller shall have thirty (30) days following receipt of the Preliminary Cash Statement to review the Preliminary Cash Statement and to notify Buyer in writing if it disputes the amount of the Net Due set forth on the Preliminary Cash Statement (the “Dispute Notice”), specifying the reasons therefore in reasonable detail. (e) In connection with Buyer’s preparation of the Preliminary Cash Statement and Seller’s review of such statement, Buyer and its Representatives and Seller and its Representatives, as applicable, shall have reasonable access, during normal business hours and upon reasonable notice, to all business and financial records, relevant work papers, schedules, memoranda and other documents and to finance personnel of Buyer or Seller, as applicable, the Companies and their Subsidiaries and any other information which Buyer or Seller, as applicable, reasonably requests, and Buyer shall, and shall cause the Companies and their Subsidiaries to, and Seller shall and shall cause its Subsidiaries to cooperate reasonably with Buyer or Seller and their respective Representatives, as applicable, in connection therewith. (f) In the event that Seller shall deliver a Dispute Notice to Buyer, Buyer and Seller shall cooperate in good faith to resolve the dispute over such disputed items as promptly as practicable and, upon such resolution, if any, any adjustments to the Preliminary Cash Statement shall be made in accordance with the agreement of Buyer and Seller. If Buyer and Seller are unable to resolve any such disputed items within ten (10) Business Days (or such longer period as Buyer and Seller shall mutually agree in writing) of Seller’s delivery of such Dispute Notice, such disputed items shall be resolved by the Independent Accounting Firm, and such determination shall be final and binding on the parties. Any expenses relating to the engagement of the Independent Accounting Firm in respect of its services pursuant to this Section 2.5(d) shall be shared equally by Buyer and Seller. The Independent Accounting Firm shall be instructed to use reasonable best efforts to perform its services within thirty (30) days of submission of the Preliminary Cash Statement to it and, in any case, as promptly as practicable after such submission. The Preliminary Cash Statement, (i) if no Dispute Notice has been timely delivered by Seller, as originally submitted by Buyer, or (ii) if a Dispute Notice has been timely delivered by Seller, as determined pursuant to the resolution of such dispute in accordance with this Section 2.5(d), shall be, respectively, the “Final Cash Statement.” (g) If the Final Cash Statement shows a Net Due payable to the Companies and their Subsidiaries, then Seller shall pay to CMG the amount of the Net Due. If the Final Cash Statement shows a Net Due payable to Seller, then Buyer shall pay or cause CMG to pay to Seller the amount of the Net Due. The payment of the Net Due as set forth herein shall be made on or before the fifth (5th) Business Day following the date on which the Preliminary Cash Statement becomes the Final Cash Statement pursuant to the last sentences of Section 2.5(f), together with interest thereon from the Closing Date to the date of payment, at a floating rate equal to the U.S. dollar prime rate per annum, as quoted by Banc of America Securities LLC from time to time during such period. Such interest shall be calculated based on a year of 365 days and the number of days elapsed since the Closing Date.” (h) Seller and Buyer shall pay or cause to be paid to or as directed by the other any cash that it or its Affiliates (other than, in the case of Seller, the Companies and their Subsidiaries) receives or has received after June 30, 2005, whether before or after the Closing, from third parties in respect of the business activities of the other party.
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Samples: Purchase Agreement, Purchase Agreement (Cendant Corp)
Cash Reconciliation. (a) The parties acknowledge and agree as follows:
(i) Seller is entitled to retain all Cash of the Business (other than Restricted Cash) as of June 30, 2005. All Cash of the Business from and after such date shall be retained by the Companies, other than net amounts payable to or by Seller and its Affiliates (other than the Companies and its Subsidiaries) by or to the Companies and their Subsidiaries in accordance with the Intercompany Agreements (the “Closed Loop”).
(ii) The Closed Loop shall be calculated for the period from and including July 1, 2005 through and including August 31, 2005 pursuant to the adjustment set forth in Section 2.3(c)(ii). The calculation of such adjustment is reflected in the schedules set forth in Schedule II to this Amendment (the “Cash Reconciliation Schedule”), which sets forth the Net Due amount for which adjustment shall be made pursuant to Section 2.3(c)(ii).
(iii) The Closed Loop shall be calculated for the period from and including September 1, 2005 through and including the date immediately prior to the Closing Date pursuant to the adjustment set forth below in this Section 2.5.
(b) Within forty-five (45) 60 days following the Closing Date, Buyer the Company shall prepare and deliver to Seller the Buyer a statement schedule setting forth the Company’s calculation, for the period from and including September commencing on November 1, 2005 through 2005, and including ending as of the date immediately prior to Closing, (a) the Closing Date, setting forthcash disbursements funded by the Company, the following Parent or any of their affiliates for the benefit of the Company, to include those made in the ordinary course to trade vendors and those made in the ordinary course for Company employee benefit plans (the “Preliminary Cash StatementDisbursements”):), and (b) the cash deposits made by the Company (the “Deposits”).
(b) The Buyer shall immediately review such schedule for accuracy and within three business days following the Buyer’s receipt of such schedule (i) reconciliations of the inter-company accounts of Seller and its Subsidiaries (other than Buyer shall remit to the Companies and their Subsidiaries)Company in immediately available funds, on the one handamount by which the Disbursements exceed the Deposits, and the Companies and their Subsidiaries, on the other hand (“Inter-Company Accounts”);
if any; or (ii) activity flowing through the Inter-Company Accountsshall remit to the Buyer, broken out between cash activity in like manner and non-cash activity;
(iii) cash activity through within such period, the Inter-amount by which Deposits exceed the Disbursements, if any. If Buyer does not agree with the Company’s schedule, Buyer shall immediately bring all disputed amounts to Company’s attention and attempt to reach agreement as to the disputed amounts, but shall nonetheless be obligated to make payment as to the undisputed amounts within the time limits set forth above. Buyer and the Company Accounts broken out between (x) net inter-company agreement activity, (y) net cash transfer activity and (z) net payments made by Seller on behalf of shall promptly resolve any disputed amounts pursuant to the Business; and
(iv) a reconciliation of the net amount due to/due from Seller dispute resolution mechanism set forth in accordance with Section 2.5(a)(iii) (the “Net Due”) with supporting documentation for items (i) — (iii) aboveArticle 6 below.
(c) The Preliminary Cash Statement Disbursements shall include, but not be prepared and limited to, actual cash amounts paid by the Net Due amount shall be calculated using Company or the same policies, procedures and methodologies used in preparing the Cash Reconciliation Schedule and consistent with Section 2.3(c).
(d) Seller shall have thirty (30) days following receipt Parent on behalf of the Preliminary Cash Statement Company with respect to review the Preliminary Cash Statement and to notify Buyer in writing if it disputes the amount of the Net Due set forth on the Preliminary Cash Statement (the “Dispute Notice”)pre-Closing periods, specifying the reasons therefore in reasonable detail.
(e) In connection with Buyer’s preparation of the Preliminary Cash Statement and Seller’s review of such statement, Buyer and its Representatives and Seller and its Representatives, as applicable, shall have reasonable access, during normal business hours and upon reasonable notice, to all business and financial records, relevant work papers, schedules, memoranda and other documents and to finance personnel of Buyer or Seller, as applicable, the Companies and their Subsidiaries and any other information which Buyer or Seller, as applicable, reasonably requests, and Buyer shall, and shall cause the Companies and their Subsidiaries to, and Seller shall and shall cause its Subsidiaries to cooperate reasonably with Buyer or Seller and their respective Representatives, as applicable, in connection therewith.
(f) In the event that Seller shall deliver a Dispute Notice to Buyer, Buyer and Seller shall cooperate in good faith to resolve the dispute over such disputed items as promptly as practicable and, upon such resolution, if any, any adjustments to the Preliminary Cash Statement shall be made in accordance with the agreement of Buyer and Seller. If Buyer and Seller are unable to resolve any such disputed items within ten (10) Business Days (or such longer period as Buyer and Seller shall mutually agree in writing) of Seller’s delivery of such Dispute Notice, such disputed items shall be resolved by the Independent Accounting Firm, and such determination shall be final and binding on the parties. Any expenses relating to the engagement of the Independent Accounting Firm in respect of its services pursuant to this Section 2.5(d) shall be shared equally by Buyer and Seller. The Independent Accounting Firm shall be instructed to use reasonable best efforts to perform its services within thirty (30) days of submission of the Preliminary Cash Statement to it and, in any case, as promptly as practicable after such submission. The Preliminary Cash Statement, including (i) if no Dispute Notice has been timely delivered amounts paid after October 31, 2005 for checks issued by Sellerthe Company or Parent on behalf of the Company on or before October 31, 2005 that had not cleared the banks on October 31, 2005, which amounts were reflected on the October 31, 2005 balance sheet as originally submitted by Buyernegative cash amounts, or (ii) if a Dispute Notice has been timely delivered checks issued by Seller, as determined pursuant to the resolution of such dispute in accordance with this Section 2.5(d), shall be, respectively, the “Final Cash Statement.”
(g) If the Final Cash Statement shows a Net Due payable to the Companies and their Subsidiaries, then Seller shall pay to CMG the amount Company or Parent on behalf of the Net Due. If the Final Cash Statement shows a Net Due payable Company subsequent to Seller, then Buyer shall pay or cause CMG to pay to Seller the amount of the Net Due. The payment of the Net Due as set forth herein shall be made on or before the fifth (5th) Business Day following the date on which the Preliminary Cash Statement becomes the Final Cash Statement pursuant to the last sentences of Section 2.5(f), together with interest thereon from the Closing Date to the date of payment, at a floating rate equal to the U.S. dollar prime rate per annum, as quoted by Banc of America Securities LLC from time to time during such period. Such interest shall be calculated based on a year of 365 days and the number of days elapsed since the Closing Date.”
(h) Seller and Buyer shall pay or cause to be paid to or as directed by the other any cash that it or its Affiliates (other than, in the case of Seller, the Companies and their Subsidiaries) receives or has received after June 30October 31, 2005, but before the Closing that have not cleared the banks as of the Closing, (iii) workers compensation, general liability, auto insurance, health and similar insurance premiums paid by the Parent on behalf of the Company with respect to periods prior to the Closing, whether before accrued prior to or after the Closing, from third parties in respect and (iv) other amounts paid by the Company or by the Parent on behalf of the business activities Company with respect to periods prior to the Closing, but for which invoices are received or accruals are made after the Closing Date. Deposits shall include, but not be limited to, actual cash amounts received by the Company or the Parent on behalf of the other partyCompany subsequent to October 31, 2005, but before the Closing that have not been reflected in the Company’s accounts as of the Closing. Disbursements and Deposits will be accounted for in accordance with Parent’s accounting practices consistent with past periods.
Appears in 1 contract
Samples: Asset Purchase Agreement (Integrated Electrical Services Inc)
Cash Reconciliation. (a) The parties acknowledge and agree as follows:
(i) Seller is entitled to retain all Cash of the Business (other than Restricted Cash) as of June 30, 2005. All Cash of the Business from and after such date shall be retained by the Companies, other than net amounts payable to or by Seller and its Affiliates (other than the Companies and its Subsidiaries) by or to the Companies and their Subsidiaries in accordance with the Intercompany Agreements (the “Closed Loop”).
(ii) The Closed Loop shall be calculated for the period from and including July 1, 2005 through and including August 31, 2005 pursuant to the adjustment set forth in Section 2.3(c)(ii). The calculation of such adjustment is reflected in the schedules set forth in Schedule II to this Amendment (the “Cash Reconciliation Schedule”), which sets forth the Net Due amount for which adjustment shall be made pursuant to Section 2.3(c)(ii).
(iii) The Closed Loop shall be calculated for the period from and including September 1, 2005 through and including the date immediately prior to the Closing Date pursuant to the adjustment set forth below in this Section 2.5.
(b) Within forty-five (45) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement for the period from and including September 1, 2005 through and including the date immediately prior to the Closing Date, setting forth, the following (the “Preliminary Cash Statement”):
(i) reconciliations of the inter-company accounts of Seller and its Subsidiaries (other than the Companies and their Subsidiaries), on the one hand, and the Companies and their Subsidiaries, on the other hand (“Inter-Company Accounts”);
(ii) activity flowing through the Inter-Company Accounts, broken out between cash activity and non-cash activity;
(iii) cash activity through the Inter-Company Accounts broken out between (x) net inter-company agreement activity, (y) net cash transfer activity and (z) net payments made by Seller on behalf of the Business; and
(iv) a reconciliation of the net amount due to/due from Seller in accordance with Section 2.5(a)(iii) (the “Net Due”) with supporting documentation for items (i) — (iiii)—(iii) above.
(c) The Preliminary Cash Statement shall be prepared and the Net Due amount shall be calculated using the same policies, procedures and methodologies used in preparing the Cash Reconciliation Schedule and consistent with Section 2.3(c).
(d) Seller shall have thirty (30) days following receipt of the Preliminary Cash Statement to review the Preliminary Cash Statement and to notify Buyer in writing if it disputes the amount of the Net Due set forth on the Preliminary Cash Statement (the “Dispute Notice”), specifying the reasons therefore in reasonable detail.
(e) In connection with Buyer’s preparation of the Preliminary Cash Statement and Seller’s review of such statement, Buyer and its Representatives and Seller and its Representatives, as applicable, shall have reasonable access, during normal business hours and upon reasonable notice, to all business and financial records, relevant work papers, schedules, memoranda and other documents and to finance personnel of Buyer or Seller, as applicable, the Companies and their Subsidiaries and any other information which Buyer or Seller, as applicable, reasonably requests, and Buyer shall, and shall cause the Companies and their Subsidiaries to, and Seller shall and shall cause its Subsidiaries to cooperate reasonably with Buyer or Seller and their respective Representatives, as applicable, in connection therewith.
(f) In the event that Seller shall deliver a Dispute Notice to Buyer, Buyer and Seller shall cooperate in good faith to resolve the dispute over such disputed items as promptly as practicable and, upon such resolution, if any, any adjustments to the Preliminary Cash Statement shall be made in accordance with the agreement of Buyer and Seller. If Buyer and Seller are unable to resolve any such disputed items within ten (10) Business Days (or such longer period as Buyer and Seller shall mutually agree in writing) of Seller’s delivery of such Dispute Notice, such disputed items shall be resolved by the Independent Accounting Firm, and such determination shall be final and binding on the parties. Any expenses relating to the engagement of the Independent Accounting Firm in respect of its services pursuant to this Section 2.5(d) shall be shared equally by Buyer and Seller. The Independent Accounting Firm shall be instructed to use reasonable best efforts to perform its services within thirty (30) days of submission of the Preliminary Cash Statement to it and, in any case, as promptly as practicable after such submission. The Preliminary Cash Statement, (i) if no Dispute Notice has been timely delivered by Seller, as originally submitted by Buyer, or (ii) if a Dispute Notice has been timely delivered by Seller, as determined pursuant to the resolution of such dispute in accordance with this Section 2.5(d), shall be, respectively, the “Final Cash Statement.”
(g) If the Final Cash Statement shows a Net Due payable to the Companies and their Subsidiaries, then Seller shall pay to CMG the amount of the Net Due. If the Final Cash Statement shows a Net Due payable to Seller, then Buyer shall pay or cause CMG to pay to Seller the amount of the Net Due. The payment of the Net Due as set forth herein shall be made on or before the fifth (5th) Business Day following the date on which the Preliminary Cash Statement becomes the Final Cash Statement pursuant to the last sentences of Section 2.5(f), together with interest thereon from the Closing Date to the date of payment, at a floating rate equal to the U.S. dollar prime rate per annum, as quoted by Banc of America Securities LLC from time to time during such period. Such interest shall be calculated based on a year of 365 days and the number of days elapsed since the Closing Date.”
(h) Seller and Buyer shall pay or cause to be paid to or as directed by the other any cash that it or its Affiliates (other than, in the case of Seller, the Companies and their Subsidiaries) receives or has received after June 30, 2005, whether before or after the Closing, from third parties in respect of the business activities of the other party.
Appears in 1 contract
