AND (III) THAT BUYERS WOULD NOT BE
PURCHASING THE PURCHASED ASSETS AND THE XCEL JAPAN SHARES BUT FOR SUCH GOODWILL
AND ABILITY TO EXPAND.
(D)
REMEDIES.
BECAUSE A BREACH, OR FAILURE TO
COMPLY WITH, THIS SECTION 7.3 WILL CAUSE IRREPARABLE INJURY TO BUYERS FOR WHICH
THERE IS NO ADEQUATE REMEDY AT LAW AND THE EXACT AMOUNT OF WHICH WILL BE
DIFFICULT TO ASCERTAIN, IF SELLER OR ANY OF ITS AFFILIATES SHOULD IN ANY WAY
BREACH, OR FAIL TO COMPLY WITH, THE TERMS OF THIS SECTION 7.3, BUYERS SHALL BE
ENTITLED TO AN INJUNCTION RESTRAINING SUCH PERSON(S) FROM ANY SUCH BREACH OR
FAILURE IN ADDITION TO MONETARY DAMAGES.
ALL REMEDIES EXPRESSLY PROVIDED FOR
HEREIN ARE CUMULATIVE OF ANY AND ALL OTHER REMEDIES NOW EXISTING AT LAW OR IN
EQUITY, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
BUYERS SHALL, IN ADDITION
TO THE REMEDIES HEREIN PROVIDED, BE ENTITLED TO AVAIL ITSELF OF ALL SUCH OTHER
REMEDIES AS MAY NOW OR HEREAFTER EXIST AT LAW OR IN EQUITY FOR COMPENSATION, AND
FOR THE SPECIFIC ENFORCEMENT OF THE COVENANTS CONTAINED HEREIN WITHOUT THE
NECESSITY OF PROVING ACTUAL DAMAGES.
RESORT TO ANY REMEDY PROVIDED FOR
HEREUNDER OR PROVIDED FOR BY LAW SHALL NOT PRECLUDE OR BAR THE CONCURRENT OR
SUBSEQUENT EMPLOYMENT OF ANY OTHER APPROPRIATE REMEDY OR REMEDIES, OR PRECLUDE
THE RECOVERY BY BUYERS OF MONETARY DAMAGES AND COMPENSATION.
(E)
SEVERABILITY.
IF ANY PROVISION OF THIS
SECTION 7.3 SHALL FINALLY BE JUDICIALLY DETERMINED TO BE INVALID, INEFFECTIVE OR
UNENFORCEABLE, SUCH DETERMINATION SHALL APPLY ONLY IN THE JURISDICTION IN WHICH
SUCH ADJUDICATION IS MADE AND EVERY OTHER PROVISION OF THIS SECTION 7.3 SHALL
REMAIN IN FULL FORCE AND EFFECT.
THE INVALID, INEFFECTIVE OR UNENFORCEABLE
PROVISION SHALL, WITHOUT FURTHER ACTION BY THE PARTIES, BE AUTOMATICALLY
AMENDED, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, TO EFFECT THE ORIGINAL
PURPOSE AND INTENT OF THE INVALID, INEFFECTIVE OR UNENFORCEABLE PROVISION (AND
IF SUCH PROVISION GOVERNS THE DURATION OF THE RESTRICTED PERIOD OR GEOGRAPHIC
SCOPE OF THE RESTRICTED TERRITORY, SUCH PROVISION SHALL BE AMENDED TO REDUCE
SUCH DURATION OR SCOPE, AS APPLICABLE, AS MINIMALLY AS POSSIBLE SO THAT SUCH
PROVISION IS VALID, EFFECTIVE AND ENFORCEABLE FOR THE LONGEST PERIOD OF TIME AND
FULLEST GEOGRAPHIC AREA AS IS ADJUDGED PERMISSIBLE FOR SUCH PROVISION TO BE
VALID, EFFECTIVE AND ENFORCEABLE); PROVIDED, HOWEVER, THAT SUCH AMENDMENT SHALL
APPLY ONLY WITH RESPECT TO THE OPERATION OF SUCH PROVISION IN THE PARTICULAR
JURISDICTION IN WHICH SUCH ADJUDICATION IS MADE.
(F)
ACKNOWLEDGEMENT.
SELLER ACKNOWLEDGES
THAT THE DURATION OF THE RESTRICTED PERIOD, THE GEOGRAPHIC SCOPE OF THE
RESTRICTED TERRITORY, AND THE SCOPE OF RESTRICTED ACTIVITIES DESCRIBED IN
SECTION 7.3(A) ARE REASONABLE AND NECESSARY TO PROTECT THE LEGITIMATE BUSINESS
INTERESTS OF BUYER IN VIEW OF THE NATURE OF THE BUSINESS, THE NATURE OF THE
BUSINESSES IN WHICH BUYERS ARE ENGAGED, AND THE NATURE OF THE CONTEMPLATED
TRANSACTIONS.
58
7.4
ACCOUNTS RECEIVABLE.
AFTER THE CLOSING,
BUYER SHALL HAVE THE RIGHT AND AUTHORITY TO COLLECT ALL ACCOUNTS RECEIVABLE
PURCHASED HEREUNDER AS PURCHASED ASSETS AND OTHER ITEMS TRANSFERRED AND ASSIGNED
BY