ASSERTED
AGAINST A QUOTAHOLDER INDEMNITEE IN RESPECT OF WHICH A QUOTAHOLDER INDEMNITEE
PROPOSES TO DEMAND INDEMNIFICATION ("QUOTAHOLDER INDEMNIFIED CLAIMS"), SUCH
QUOTAHOLDER INDEMNITEE SHALL NOTIFY BUYER THEREOF; PROVIDED, FURTHER, HOWEVER,
THAT THE FAILURE TO SO NOTIFY THE BUYER SHALL NOT REDUCE OR AFFECT THE BUYER'S
OBLIGATIONS WITH RESPECT THERETO EXCEPT TO THE EXTENT THAT THE BUYER IS
MATERIALLY PREJUDICED THEREBY.
SUBJECT TO RIGHTS OF OR DUTIES TO ANY INSURER OR
OTHER THIRD PERSON HAVING LIABILITY THEREFOR, THE BUYER SHALL HAVE THE RIGHT
PROMPTLY UPON RECEIPT OF SUCH NOTICE TO ASSUME THE CONTROL OF THE DEFENSE,
COMPROMISE OR SETTLEMENT OF ANY SUCH QUOTAHOLDER INDEMNIFIED CLAIMS (PROVIDED
THAT ANY COMPROMISE OR SETTLEMENT MUST BE REASONABLY APPROVED BY THE
QUOTAHOLDERS) INCLUDING, AT THEIR OWN EXPENSE, EMPLOYMENT OF COUNSEL REASONABLY
SATISFACTORY TO SELLER; PROVIDED, HOWEVER, THAT IF THE BUYER SHALL HAVE
EXERCISED ITS RIGHT TO ASSUME SUCH CONTROL, THE QUOTAHOLDER INDEMNITEES MAY, IN
THEIR SOLE DISCRETION AND AT THEIR EXPENSE, EMPLOY COUNSEL TO REPRESENT THEM (IN
ADDITION TO COUNSEL EMPLOYED BY THE BUYER) IN ANY SUCH MATTER, AND IN SUCH EVENT
COUNSEL SELECTED BY BUYER SHALL BE REQUIRED TO COOPERATE WITH SUCH COUNSEL OF
QUOTAHOLDER INDEMNITEES IN SUCH DEFENSE, COMPROMISE OR SETTLEMENT.
17
8.
TERMINATION.
This Agreement may be
terminated as follows:
8.1
BY THE QUOTAHOLDERS.
PRIOR TO THE CLOSING,
THIS AGREEMENT MAY BE TERMINATED BY THE QUOTAHOLDERS BY DELIVERY OF A
TERMINATION NOTICE SIGNED BY BOTH OF THE QUOTAHOLDERS SPECIFYING THAT THE BUYER
HAS MATERIALLY BREACHED THIS AGREEMENT (INCLUDING A REFERENCE TO THE PROVISION
BREACHED), WHICH BREACH HAS NOT BEEN CURED BY THE BUYER FOLLOWING THIRTY (30)
DAYS NOTICE THEREOF BY THE QUOTAHOLDERS.
IN THE EVENT OF A TERMINATION BY THE
QUOTAHOLDERS PURSUANT TO THIS SECTION 8.1 (FOLLOWING THE EXPIRATION OF ANY CURE
PERIOD), THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL TERMINATE AND
BE OF NO FURTHER FORCE OR EFFECT; PROVIDED, HOWEVER, THAT THE OBLIGATIONS OF THE
PARTIES UNDER THE FOLLOWING SECTIONS SHALL SURVIVE ANY SUCH TERMINATION:
ARTICLE 7 AND ARTICLE 9.
IN THE EVENT OF A TERMINATION BY THE QUOTAHOLDERS
UNDER THIS SECTION 8.1 (FOLLOWING THE EXPIRATION OF ANY CURE PERIOD), THE
QUOTAHOLDERS SHALL BE ENTITLED TO RETAIN THE GOOD FAITH DEPOSIT, WITHOUT ANY
RIGHT OF OFFSET OR CREDIT TO THE BUYER, AS LIQUIDATED DAMAGES UNDER THIS
AGREEMENT.
NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, THE PARTIES
AGREE THAT THE NOTIFICATION BY THE BUYER UNDER SECTION 6.5(II) THAT IT HAS
ELECTED NOT TO PROCEED WITH THE TRANSACTION, IN THE ABSENCE OF ANY BREACH OF THE
AGREEMENT BY THE QUOTAHOLDERS, SHALL BE GROUNDS FOR THE QUOTAHOLDERS TO NOTIFY
THE BUYER THAT IT HAS ELECTED TO TERMINATE THIS AGREEMENT AND, IN SUCH EVENT,
THE QUOTAHOLDERS SHALL BE ENTITLED TO RETAIN THE GOOD FAITH DEPOSIT; PROVIDED,
HOWEVER, THAT IN NO EVENT SHALL THE REFUSAL BY THE BUYER TO EFFECT THE CLOSING
OR OTHER TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT BY REASON OF A MATERIAL
ADVERSE CHANGE WITH RESPECT TO THE COMPANY BE DEEMED A MATERIAL BREACH OF THIS
AGREEMENT BY THE BUYER.
8.2
BY