and the Closing has not
occurred on or before October 8, 2007; or
(d)
by the mutual written agreement of Buyer and Seller
8.2
Remedies.
If Closing does not occur on the Closing Date, as that
may be extended by Seller and Buyer hereunder, due to Seller's breach of the
terms of this Agreement, then Buyer may either declare this Agreement terminated
and of no further force or effect and receive the prompt return of the Deposit
or seek specific performance of this Agreement. If Closing does not occur due to
Buyer's breach of the terms of this Agreement, Seller may declare this Agreement
terminated and of no further force or effect and retain the Deposit as
liquidated damages and not as a penalty for such breach. It is agreed that
actual damages would be difficult to ascertain and that the amount of the
liquidated damages is reasonable. Upon termination of this Agreement, Seller
shall be free immediately to enjoy all rights of ownership of the Properties and
to sell, transfer, encumber or otherwise dispose of the Properties to any party
without any restriction under this Agreement.
ARTICLE 9
DISCLAIMER
ANY ASSIGNMENT AND BILL OF SALE EXECUTED PURSUANT HERETO SHALL BE EXECUTED
WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION AS TO THE
MERCHANTABILITY OF ANY OF THE WELLS OR EQUIPMENT OR THEIR FITNESS FOR ANY
PURPOSE, AND WITHOUT ANY OTHER EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION
WHATSOEVER EXCEPT AS EXPRESSLY SET FORTH IN SAID ASSIGNMENT AND BILL OF
SALE.
IT IS UNDERSTOOD AND AGREED THAT BUYER SHALL HAVE INSPECTED THE PROPERTY
AND PREMISES AND SATISFIED ITSELF AS TO THEIR PHYSICAL AND ENVIRONMENTAL
CONDITION, BOTH SURFACE AND SUBSURFACE, AND THAT BUYER SHALL ACCEPT ALL OF THE
SAME IN THEIR "AS IS, WHERE IS" CONDITION.
IN ADDITION NEITHER, SELLER, NOR
SELLER'S REPRESENTATIVE (SUMMIT PETROLEUM LLC), MAKES ANY WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR COMPLETENESS OF ANY
DATA, INFORMATION OR MATERIALS HERETOFORE OR HEREAFTER FURNISHED BUYER IN
CONNECTION WITH THE PROPERTIES, OR AS TO THE QUALITY OR QUANTITY OF HYDROCARBON
RESERVES (IF ANY) ATTRIBUTABLE TO THE PROPERTIES OR THE ABILITY OF THE
PROPERTIES TO PRODUCE HYDROCARBONS.
ANY AND ALL SUCH DATA, INFORMATION AND
OTHER MATERIALS FURNISHED BY SELLER AND SELLER'S REPRESENTATIVE IS PROVIDED
BUYER AS A CONVENIENCE AND ANY RELIANCE ON OR USE OF THE SAME SHALL BE AT
BUYER'S SOLE RISK.
BUYER EXPRESSLY WAIVES THE PROVISIONS OF CHAPTER XVII,
SUBCHAPTER E, SECTIONS 17.41 THROUGH 17.63, INCLUSIVE (OTHER THAN SECTION
17.555, WHICH IS NOT WAIVED), VERNON'S TEXAS CODE ANNOTATED BUSINESS AND
COMMERCE CODE (THE "DECEPTIVE TRADE PRACTICES ACT").
Page 13of 18
ARTICLE 10
ASSUMPTIONS AND INDEMNIFICATION
10.1 BUYER'S ASSUMPTION AND INDEMNIFICATION; POTENTIAL THIRD PARTY
LIABILITIES.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, BUYER AGREES UPON
THE OCCURRENCE OF CLOSING (I) TO ASSUME, AND TIMELY PAY AND PERFORM, ALL DUTIES,
OBLIGATIONS AND LIABILITIES RELATED TO THE OWNERSHIP AND/OR OPERATION OF THE
PROPERTIES, INSOFAR AND ONLY INSOFAR AS SUCH DUTIES, OBLIGATIONS AND LIABILITIES
ARISE AND ARE ATTRIBUTABLE TO