Common use of Trailing Payments Clause in Contracts

Trailing Payments. The last sentence of Section 2.8(a) is amended and restated in its entirety to read as follows: “The Purchaser’s obligations hereunder to honor checks, drafts and withdrawal orders on forms provided by the Seller and carrying the Seller’s imprint (including name and transit routing number) shall not apply to any such check, draft or withdrawal order (i) presented to the Purchaser more than ninety (90) days (or, one hundered and eighty (180) days if presented by Southern Illinois University) following the Closing Date or (ii) on which a stop payment has been requested by the depositor.” The first two sentences of Section 2.8(c) are amended and restated in their entirety to read as follows: “The Seller and the Purchaser shall make arrangements to provide for the daily settlement with immediately available funds by the Purchaser of checks, ACH charges or debits, drafts, withdrawal orders, debit card trailing activity and returns presented and paid by Seller for the period between the Closing Date and ninety (90) days after the Closing Date and which are drawn on or chargeable to Deposit Liabilities transferred to the Purchaser; provided, however, that such period shall be one hundered and eighty (180) days in the case of any checks, ACH charges or debits, drafts, withdrawal orders, debit card trailing activity and returns presented and paid by Seller with respect to Southern Illinois University. After the expiration of such applicable period following the Closing Date, the Seller shall dishonor all checks, drafts, withdrawal orders and other instruments and items drawn on the Deposit Liabilities which are presented in any manner to the Seller, unless the Seller and the Purchaser agree to extend such applicable period and extend the provision for a settlement account as necessary.” The last sentence of Section 2.8(d) is amended and restaed in its entirety to read as follows: “In connection with the obligations under Section 2.4(b) hereof, the Purchaser and the Seller shall cooperate in good faith (i) to determine the method and timing for remitting to the Purchaser and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following the Closing Date , ACH direct deposits and FedWire direct deposits relating to accounts constituting Deposit Liabilities, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring an orderly transition of ownership of the Deposit Liabilities to the Purchaser hereunder, and (ii) to determine the method and timing for remitting to the Seller and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following the Closing Date, ACH direct deposits and FedWire direct deposits relating to deposit accounts of the Seller that are not Deposit Liabilities, but which transactions are nonetheless routed to the Purchaser, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring the orderly processing of transactions routed to the Purchaser that relate to deposit accounts of the Seller that are not Deposit Liabilities.” The last sentence of Section 2.8(e) is amended and restaed in its entirety to read as follows: “In connection with the obligations under Section 2.4(b) hereof, the Purchaser and the Seller shall cooperate in good faith, (i) to determine the method and timing for forwarding to the Purchaser and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following the Closing Date all direct debits relating to accounts constituting Deposit Liabilities, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring an orderly transition of ownership of the Deposit Liabilities to the Purchaser hereunder, and (ii) to determine the method and timing for forwarding to the Seller and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following the Closing Date all direct debits relating to deposit accounts of the Seller that are not Deposit Liabilities, but which transactions are nonetheless routed to the Purchaser, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring the orderly processing of transactions routed to the Purchaser that relate to deposit accounts of the Seller that are not Deposit Liabilities.”

Trailing Payments. The last sentence of Section 2.8(a(a) is amended and restated in its entirety to read as follows: “The Purchaser’s obligations hereunder to honor checks, drafts and withdrawal orders on forms provided by the Seller and carrying the Seller’s imprint Within fifteen (including name and transit routing number) shall not apply to any such check, draft or withdrawal order (i) presented to the Purchaser more than ninety (90) days (or, one hundered and eighty (180) days if presented by Southern Illinois University) following the Closing Date or (ii) on which a stop payment has been requested by the depositor.” The first two sentences of Section 2.8(c) are amended and restated in their entirety to read as follows: “The Seller and the Purchaser shall make arrangements to provide for the daily settlement with immediately available funds by the Purchaser of checks, ACH charges or debits, drafts, withdrawal orders, debit card trailing activity and returns presented and paid by Seller for the period between the Closing Date and ninety (9015) days after the Closing Date Buyer shall (at its own cost) prepare and deliver to Sellers’ Representative a schedule of the Trailing Payments identifying the payor, the amount paid, and the date on which are drawn on or chargeable to Deposit Liabilities transferred such payment was received (the “Trailing Payments Schedule”). Further, within seventy-five (75) days after the Closing Date, Buyer shall (at its own cost) prepare, in accordance with GAAP, a calculation of the Working Capital of Sellers as of the Closing Date (the “Closing Date Working Capital”) and shall deliver to the PurchaserSellers’ Representative: (i) such calculation, and (ii) Buyer’s determination of the Closing Date Working Capital. (b) Promptly following receipt of Buyer’s written calculation of the Closing Date Working Capital, Sellers and Owners may review the calculation of the Closing Date Working Capital and the Trailing Payments Schedule and, within twenty (20) days after the date of such receipt, Sellers’ Representative may deliver to Buyer a certificate (signed by the Sellers’ Representative) setting forth each of Sellers’ and Owners’ objections to Buyer’s calculation of the Closing Date Working Capital and/or the Trailing Payments Schedule (the “Unresolved Objections”), together with a reasonably complete and detailed list of the reasons therefor and calculations which, in Sellers’ and Owner’s view, are necessary to eliminate such Unresolved Objections. If the Sellers’ and Owners’ Representative does not so object within such twenty (20) day period, Buyer’s calculation of the Closing Date Working Capital and the Trailing Payments Schedule shall be final and binding for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (c) If the Sellers’ Representative so objects within such twenty (20) day period, Buyer and the Sellers’ Representative shall use their reasonable efforts to resolve by written agreement (the “Agreed Adjustments”) the Unresolved Objections and, if the Sellers’ Representative and Buyer so resolve all the Unresolved Objections, Buyer’s calculation of the Closing Date Working Capital and/or the Trailing Payments Schedule, as adjusted by the Agreed Adjustments, shall be final and binding for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (d) If any Unresolved Objections are not resolved by the Agreed Adjustments within the twenty (20) day period next following such twenty (20) day period, then Buyer and the Sellers’ Representative shall submit the remaining Unresolved Objections that have not been resolved by the Agreed Adjustments to an independent national accounting firm acceptable to both the Sellers’ Representative and Buyer, and such firm (“Accounting Firm”) shall be directed by Buyer and the Sellers’ Representative to resolve such remaining Unresolved Objections (based solely on the presentations by Buyer and by the Sellers’ Representatives as to whether such remaining Unresolved Objection has been determined in a manner consistent with this Agreement) as promptly as reasonably practicable and to deliver written notice to each of Buyer and the Sellers’ Representative setting forth its resolution of such remaining Unresolved Objections. Buyer’s calculation of the Closing Date Working Capital and the Trailing Payments Schedule, after giving effect to any Agreed Adjustments and to such resolution by the Accounting Firm, shall be final and binding as the calculation of the Closing Date Working Capital and the Trailing Payments Schedule for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (e) The parties hereto shall make available to Buyer, the Sellers’ Representative and, if applicable, the Accounting Firm, such books, records and other information as any of the foregoing may reasonably request to prepare or review the Buyer’s calculation of the Closing Date Working Capital, the Trailing Payments Schedule or any Unresolved Objections submitted to the Accounting Firm. The fees and expenses of the Accounting Firm hereunder shall be paid 50% by Buyer and 50% by Sellers; provided, however, in the event the Accounting Firm determines that such period Buyer’s calculation of the Closing Date Working Capital or the amount of the Trailing Payments reflected on the Trailing Payments Schedule (each as modified by any Agreed Adjustments) is more than 20% less than the amount of the Closing Date Working Capital or the amount of the Trailing Payments determined by the Accounting Firm after resolving all Unresolved Objections, then Buyer shall be one hundered pay 100% of the fees and eighty expenses of the Accounting Firm. (180f) Within seven (7) days after such determination, Buyer shall pay Owners in such proportions as the case Sellers’ Representative may advise Buyer and CNU in writing, an amount of any checks, ACH charges or debits, drafts, withdrawal orders, debit card trailing activity and returns presented and paid by Seller with respect to Southern Illinois University. After the expiration of such applicable period following the Closing Date, the Seller shall dishonor all checks, drafts, withdrawal orders and other instruments and items drawn on the Deposit Liabilities which are presented in any manner cash equal to the Seller, unless the Seller and the Purchaser agree to extend such applicable period and extend the provision for a settlement account as necessary.” The last sentence lesser of Section 2.8(d) is amended and restaed in its entirety to read as follows: “In connection with the obligations under Section 2.4(b) hereof, the Purchaser and the Seller shall cooperate in good faith (i) to determine the method and timing for remitting to the Purchaser and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following amount of the Closing Date Working Capital, ACH direct deposits and FedWire direct deposits relating to accounts constituting Deposit Liabilities, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring an orderly transition of ownership of the Deposit Liabilities to the Purchaser hereunder, and (ii) $2,000,000, or (iii) the amount of the Trailing Payments. Any payment pursuant to determine the method and timing for remitting this Section 3.3(f) shall be an adjustment to the Seller and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following the Closing Date, ACH direct deposits and FedWire direct deposits relating to deposit accounts of the Seller that are not Deposit Liabilities, but which transactions are nonetheless routed to the Purchaser, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring the orderly processing of transactions routed to the Purchaser that relate to deposit accounts of the Seller that are not Deposit LiabilitiesPurchase Price.” The last sentence of Section 2.8(e) is amended and restaed in its entirety to read as follows: “In connection with the obligations under Section 2.4(b) hereof, the Purchaser and the Seller shall cooperate in good faith, (i) to determine the method and timing for forwarding to the Purchaser and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following the Closing Date all direct debits relating to accounts constituting Deposit Liabilities, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring an orderly transition of ownership of the Deposit Liabilities to the Purchaser hereunder, and (ii) to determine the method and timing for forwarding to the Seller and settling, for up to a ninety (90) day period (or, for a one hundered and eighty (180) day period if related to Southern Illinois University) following the Closing Date all direct debits relating to deposit accounts of the Seller that are not Deposit Liabilities, but which transactions are nonetheless routed to the Purchaser, as well as such other matters relating thereto as may be necessary or advisable for purposes of assuring the orderly processing of transactions routed to the Purchaser that relate to deposit accounts of the Seller that are not Deposit Liabilities.”