DATE AND SET FORTH ON
SCHEDULE 3.7 SHALL REMAIN THE PROPERTY OF SELLERS (THE "SELLER ACCOUNTS
RECEIVABLE") AND THAT BUYER SHALL NOT ACQUIRE ANY BENEFICIAL RIGHT OR INTEREST
THEREIN.
THE SELLER ACCOUNTS RECEIVABLE AS OF JUNE 30, 2007, ARE SET FORTH ON
SCHEDULE 3.7, WHICH SHALL BE FINALIZED AND UPDATED AS PART OF THE POST-CLOSING
AUDIT DESCRIBED IN SECTION 7.5.
17
(C)
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN SECTION
3.7(A),
SELLERS SHALL BE ENTITLED TO RETAIN FROM THE AMOUNTS COLLECTED PURSUANT TO
SECTION 3.7(A) ANY SELLER ACCOUNTS RECEIVABLE ACTUALLY RECEIVED BY SELLERS FROM
A FRANCHISEE.
(D)
WITHIN 10 DAYS FOLLOWING THE END OF EACH CALENDAR MONTH FOLLOWING THE
CLOSING DATE, BUYER SHALL FORWARD TO THE SELLER (TO THE EXTENT APPLICABLE) ANY
AMOUNTS ACTUALLY RECEIVED BY BUYER FOLLOWING THE CLOSING DATE THAT ARE
DESIGNATED BY A FRANCHISEE AS SELLER ACCOUNTS RECEIVABLE.
FOR PURPOSES OF
DETERMINING THE AMOUNT OF SELLER ACCOUNTS RECEIVABLE PAYABLE TO THE SELLER FOR
PURPOSES OF THIS SECTION 3.7, (X) IN THE CASE OF SELLER ACCOUNTS RECEIVABLE
RECEIVED IN RESPECT OF A PERIOD (SUCH AS A FISCAL QUARTER OR OTHER SIMILAR
PERIOD FOR WHICH SUCH AMOUNTS ARE PAID) THAT WAS COMPLETED PRIOR TO THE CLOSING
DATE, THE ENTIRE AMOUNT OF SUCH SELLER ACCOUNTS RECEIVABLE SHALL BE PAID TO
SELLERS AND (Y) IN THE CASE OF ANY SELLER ACCOUNTS RECEIVABLE THAT ARE PAID ON A
PERIODIC BASIS AND ARE PAYABLE FOR A PERIOD (SUCH AS A FISCAL QUARTER) THAT
INCLUDES, BUT DOES NOT END PRIOR TO, THE CLOSING DATE, SELLERS SHALL BE PAID A
PORTION OF SUCH SELLER ACCOUNTS RECEIVABLE EQUAL TO THE SELLER ACCOUNTS
RECEIVABLE FOR THE ENTIRE APPLICABLE PERIOD MULTIPLIED BY A FRACTION THE
NUMERATOR OF WHICH IS THE NUMBER OF DAYS IN SUCH PERIOD ENDING ON THE CLOSING
DATE AND THE DENOMINATOR OF WHICH IS THE NUMBER OF DAYS IN THE ENTIRE PERIOD FOR
WHICH SUCH SELLER ACCOUNTS RECEIVABLE ARE PAID.
(E)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 3.7, NEITHER
SELLER NOR ANY OF THEIR AFFILIATES SHALL BE ENTITLED TO CONTACT ANY FRANCHISEE
REGARDING ANY PAST DUE SELLER ACCOUNTS RECEIVABLE WITHOUT THE BUYER'S PRIOR
APPROVAL, WHICH APPROVAL SHALL NOT BE UNREASONABLY WITHHELD.
(F)
BUYER AND SELLERS SHALL PROVIDE TO EACH OTHER ACCESS TO FILES, RECORDS
AND BOOKS OF ACCOUNT FOR THE PURPOSE OF VERIFYING ANY FUNDS THAT HAVE BEEN
REMITTED TO EACH TO VERIFY COLLECTION OF THE ACCOUNTS RECEIVABLE.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND MFFB
Each Seller, and MFFB, as applicable, hereby represents and warrants to the
Buyer with respect to itself that the statements contained in this Article IV
are correct and complete as of the date of this Agreement and will be correct
and complete as of the Closing Date (as though made then and as though the
Closing Date were substituted for the date of this Agreement throughout this
Article IV except to the extent any representation or warranty expressly speaks
only as of a different date), except as set forth in the disclosure schedule