OR
(F)
BY PURCHASER, TO THE EXTENT PERMITTED BY SECTION 5.8(B) IF SELLER
FAILS TO REMOVE ANY TITLE OBJECTIONS.
7.2
EFFECT OF TERMINATION; RIGHT TO PROCEED.
(A)
IN THE EVENT THAT SELLER CAN DEMONSTRATE BY A PREPONDERANCE OF THE
EVIDENCE THAT, PRIOR TO THE EXECUTION OF THIS AGREEMENT BY THE PARTIES, RICHARD
HOFMANN, LAWRENCE CALDWELL, ROBERT RATHSAM, TIMOTHY GUHL, KATHY KRUSE OR MEGAN
PETRY HAD ACTUAL KNOWLEDGE OF ANY FACTS AND CIRCUMSTANCES THAT WOULD CONSTITUTE
A BREACH OF OR INACCURACY IN ANY REPRESENTATION OR WARRANTY OF SELLER CONTAINED
IN ARTICLE III HEREOF, AND SUCH FACTS AND CIRCUMSTANCES WERE NOT WITHIN THE
KNOWLEDGE OF SELLER AS OF THE EXECUTION OF THIS AGREEMENT BY THE PARTIES, THEN
PURCHASER SHALL NOT BE ENTITLED TO SEEK INDEMNIFICATION FOR SUCH BREACH OR
INACCURACY PURSUANT TO SECTION 9.2(A).
(B)
IN THE EVENT THAT THIS AGREEMENT IS TERMINATED PURSUANT TO
SECTION 7.1(A), (B), (E) OR (F), ALL FURTHER OBLIGATIONS OF THE PARTIES SHALL
TERMINATE WITHOUT FURTHER LIABILITY OF EITHER PARTY (EXCEPT FOR OBLIGATIONS
UNDER THIS SECTION 7.2, SECTIONS 5.5, 5.6 AND 5.7 AND ARTICLES I, IX AND X);
PROVIDED THAT TERMINATION SHALL NOT RELIEVE ANY PARTY OF LIABILITY FOR ANY
BREACH OF THIS AGREEMENT OCCURRING BEFORE SUCH TERMINATION.
(C)
SUBJECT TO SECTION 7.2(A), UPON TERMINATION OF THIS AGREEMENT FOR
BREACH PURSUANT TO SECTION 7.1(C) OR (D):
(I) THE BREACHING PARTY SHALL BE
LIABLE TO THE NON-BREACHING PARTY FOR ANY BREACH OF ANY REPRESENTATION,
WARRANTY, COVENANT OR AGREEMENT OF SUCH BREACHING PARTY EXISTING AT THE TIME OF
TERMINATION AND (II) THE NON-BREACHING PARTY MAY SEEK SUCH REMEDIES, INCLUDING
DAMAGES AGAINST THE BREACHING PARTY, WITH RESPECT TO ANY SUCH BREACH AS ARE
PROVIDED IN THIS AGREEMENT OR AS ARE OTHERWISE AVAILABLE AT LAW OR IN EQUITY.
THE AGREEMENTS CONTAINED IN SECTIONS 3.17, 4.5, 5.5, 5.6, 5.7, 10.5 AND 10.6 AND
ARTICLES I, IX AND X SHALL SURVIVE THE TERMINATION HEREOF.
(D)
IN THE EVENT THAT A CONDITION PRECEDENT TO A PARTY'S OBLIGATION IS
NOT MET, NOTHING CONTAINED HEREIN SHALL BE DEEMED TO REQUIRE ANY PARTY TO
TERMINATE THIS AGREEMENT, RATHER THAN TO WAIVE SUCH CONDITION PRECEDENT AND
PROCEED WITH THE ACQUISITION.
ARTICLE VIII
POST-CLOSING COVENANTS
8.1
Certain Transitional Matters.
From and after the Closing Date:
43
(A)
PURCHASER SHALL HAVE THE RIGHT AND AUTHORITY TO COLLECT FOR
PURCHASER'S OWN ACCOUNT ALL ACCOUNTS OR NOTES RECEIVABLE WHICH ARE INCLUDED IN
THE PURCHASED ASSETS;
(B)
PURCHASER SHALL HAVE THE RIGHT AND AUTHORITY TO RETAIN AND ENDORSE
WITHOUT RECOURSE THE NAME OF SELLER ON ANY CHECK OR ANY OTHER EVIDENCE OF
INDEBTEDNESS RECEIVED BY PURCHASER ON ACCOUNT OF ANY ACCOUNTS RECEIVABLE WHICH
ARE INCLUDED IN THE PURCHASED ASSETS;
(C)
SELLER SHALL PROMPTLY TRANSFER AND DELIVER TO PURCHASER ANY CASH
OR OTHER PROPERTY, IF ANY, THAT SELLER MAY RECEIVE WHICH CONSTITUTES PURCHASED
ASSETS; AND
(D)
PURCHASER SHALL PROMPTLY TRANSFER AND DELIVER TO SELLER ANY CASH
OR OTHER PROPERTY, IF ANY, THAT PURCHASER MAY RECEIVE WHICH CONSTITUTES EXCLUDED
ASSETS.
8.2
Transfer and Retention of Transferred Employees; Employee
Benefits.
On the Closing Date, Seller