"NOTICE OF TERMINATION") OF THE APPLICABLE SUBMETERING CONTRACT WAS SENT BY
THE CLIENT OR CUSTOMER BY ELECTRONIC MAIL PRIOR TO THE EFFECTIVE TIME OR BY U.S.
MAIL (OR OTHER REPUTABLE COURIER) WITH A POSTMARK PRIOR TO THE EFFECTIVE TIME,
BUT IT WAS NOT RECEIVED BY THE COMPANY OR AN AFFILIATE UNTIL SOMETIME DURING THE
SIXTY (60) DAYS FOLLOWING THE CLOSING DATE.
THE COMPANY OR SUCH AFFILIATE WILL
USE COMMERCIALLY REASONABLE EFFORTS TO DELIVER A COPY OF THE NOTICE OF
TERMINATION TO SELLER TOGETHER WITH A STATEMENT REFLECTING THE NUMBER OF BILLING
UNITS TO WHICH THE NOTICE OF TERMINATION RELATES WITHIN TWENTY-FOUR (24) HOURS
FOLLOWING RECEIPT.
(II)
IN THE EVENT OF A NEGATIVE NET SET-OFF
AMOUNT, SELLER SHALL PAY TO PURCHASER, ONE-HALF (1/2) OF THE AMOUNT OWED THROUGH
A CLAIM AGAINST AND DEDUCTION FROM THE HOLDBACK FUND, AND THE OTHER ONE-HALF
(1/2) IN CASH, IN BOTH CASES PLUS INTEREST THEREON AT THE BORROWING RATE FROM
THE CLOSING DATE.
THE HOLDBACK FUND CLAIM MUST BE PAID TO PURCHASER WITHIN
SIXTEEN (16) BUSINESS DAYS AFTER THE 65TH DAY FOLLOWING THE CLOSING DATE.
THE
CASH PAYMENT MUST BE PAID TO PURCHASER WITHIN FIVE (5) BUSINESS DAYS AFTER THE
65TH DAY FOLLOWING THE CLOSING DATE.
TO THE EXTENT THE AMOUNT IN THE HOLDBACK
FUND IS INSUFFICIENT, THE ENTIRE NET-SET OFF AMOUNT SHALL BE PAID BY SELLER IN
CASH.
(III)
PURCHASER SHALL USE ALL COMMERCIALLY REASONABLE
EFFORTS, AND SHALL CAUSE THE COMPANY TO USE ALL COMMERCIALLY REASONABLE EFFORTS,
TO START BILLING EACH AND ALL OF THE NON-BILLING UNITS WITHIN THE SIXTY (60) DAY
PERIOD REFERRED TO IN SECTION 1.6(C)(I)(A).
SECTION 1.7
ESTABLISHMENT OF HOLDBACK FUND.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, AT THE
CLOSING, AN AMOUNT EQUAL TO THE PURCHASE PRICE, AS ADJUSTED TO THE CLOSING DATE,
MULTIPLIED BY TEN PERCENT (10%) (THE "HOLDBACK FUND"), SHALL NOT BE PAID TO
SELLER, BUT INSTEAD SHALL BE WITHHELD BY PURCHASER FROM THE PURCHASE PRICE, AND
BE SUBJECT TO AND PAID PURSUANT TO THE PROVISIONS OF SECTION 8.8.
AT THE
EFFECTIVE TIME, SELLER SHALL HAVE THE CONTINGENT AND DEFERRED RIGHT TO RECEIVE
THE PORTION OF THE HOLDBACK FUND PAYABLE TO
9
SELLER PURSUANT TO SECTION 8.8, IF ANY.
THE HOLDBACK FUND SHALL INCLUDE ANY
INTEREST OR OTHER INCOME EARNED THEREON DURING THE PERIOD SUCH FUNDS ARE HELD IN
ESCROW.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller makes the representations and warranties set forth in this ARTICLE II to
Purchaser.
Seller has delivered to Purchaser the schedules to this Agreement
(the "Seller Schedules"), including those referred to in this ARTICLE II, on the
Effective Date and such Seller Schedules have been reviewed and accepted by
Purchaser.
All matters set forth in the Seller Schedules shall be deemed to be
disclosed not only in connection with the representation and warranty
specifically referenced on a given Seller Schedule, but for all purposes
relating to the representations and warranties of Seller set forth in this
ARTICLE II.
SECTION 2.1
COMPANY'S ORGANIZATION AND
QUALIFICATION.
(A)
SCHEDULE 2.1(A) SETS