Cash flow statement. (i) As promptly as practicable, but no later than sixty (60) business days after the BRT Date, Parent will cause to be prepared and delivered to CayCo Buyer a certificate of the Company’s chief financial officer (the “BCF Statement”) which shall set forth (x) a statement of cash flows of the Brazilian Operations from and after the Closing Date to the BRT Date (the “Interim Period”), and (y) the net amount of cash contributed to the Brazilian Operations by Parent or its Subsidiaries during the Interim Period, if any (the “Brazil Net Cash Amount”). The BCF Statement shall be prepared in accordance with GAAP consistent with the principles and methodologies utilized in the preparation of the August 31, 2003 Financial Statements and consistent with and adjusted according to the principles and methodologies set forth on Schedule 1.4(a); provided, that (A) Trade Accounts created or arising from and after the Closing Date through the BRT Date will be included in Current Assets and Current Liabilities, and (B) any amounts attributable to Taxes (other than the amount of any cash Taxes paid or received by Parent or its Affiliates with respect to the Brazilian Operations attributable to the Interim Period) shall be disregarded in the calculation of the Brazil Net Cash Amount. The costs and expenses of preparing the BCF Statement shall be paid by Parent. (ii) The BCF Statement shall be final and binding on each of the Parties unless CayCo Buyer objects and delivers a written notice of disagreement to Parent within twenty (20) business days after the delivery of the BCF Statement. Such notice of disagreement shall specify the item or items in dispute and shall state the amount, if any, of any adjustment that CayCo Buyer believes should be made to the BCF Statement. (iii) In the event of a disagreement over the BCF Statement, Buyers and Parent shall use reasonable efforts to resolve their dispute, but if a final resolution thereof is not obtained within fifteen (15) business days of delivery of Buyers’ written notice of disagreement, Buyers and Parent shall promptly retain the Independent Accountant to resolve any remaining disputes concerning the BCF Statement. The Independent Accountant shall determine, based solely on the provisions of this Agreement and the presentations by Buyers and Parent and their respective representatives, and not by independent review, only the appropriate amount, inclusion or omission of the disputed items, and shall modify the BCF Statement, to conform to its determination within thirty (30) days after it has been engaged. In resolving any disputed item, the Independent Accountant (x) shall limit its review to matters specifically set forth in the notice of disagreement as a disputed item, (y) shall further limit its review to whether the BCF Statement, is mathematically accurate and has been prepared in accordance with the accounting principles and methodologies set forth in this Section 9.2(g) with respect to the preparation of the BCF Statement, and (z) shall not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The determination of the Independent Accountant shall be final, conclusive and binding on the Parties and shall not be subject to appeal. Buyers and Parent shall pay equally the fees and expenses of the Independent Accountant. The BCF Statement, as adjusted by the Parties, or, if required, by the Independent Accountant, shall be deemed to be the “BCF Statement” for all purposes under this Agreement. (iv) Buyers and Parent agree that they will, and agree to cause their respective independent accountants to, cooperate and assist in the preparation of the BCF Statement and in the conduct of the reviews referred to in this Section 9.2(g), including making available during normal business hours to the extent necessary, books, records, work papers and personnel. (v) If the BCF Statement reflects a positive Brazil Net Cash Amount, then, Buyers shall pay such positive amount in cash to Parent in United States dollars. Alternatively, if the BCF Statement reflects a negative Brazil Net Cash Amount, then Parent shall pay the absolute value of such negative amount to Buyers (or Brazil NewCo). Any payment required to be made pursuant to this Section 9.2(g) shall be delivered by Buyers or Parent, as applicable, within five (5) business days after the BCF Statement is finalized (including upon resolution by Buyers and Parent of any disagreements or delivery of the determination of the Independent Accountant if required, by wire transfer in immediately available funds to an account designated by Buyers or Parent, as applicable, (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of Buyers or Parent, as the case may be). (vi) In determining whether Parent has made a positive or negative net contribution of cash to the Brazilian Operations during the Interim Period only, amounts received or paid pursuant to Trade Accounts, the Transaction Services Agreement or any other agreement referred to in subsection (f) above shall not be considered a contribution of cash or a distribution of cash by or to Parent. Unless otherwise agreed with CayCo Buyer, no checks will be drawn on the accounts of Brazil NewCo prior to the BRT Date (unless the liability on such checks is a Parent Liability).
Appears in 2 contracts
Sources: Transaction Agreement (SMART Modular Technologies (WWH), Inc.), Transaction Agreement (Smart Modular Technologies Inc)