SELLER AND BUYER HEREBY ACKNOWLEDGE AND AGREE THAT THEY ARE NOT
"CONSUMERS" WITHIN THE MEANING OF ANY DECEPTIVE TRADE PRACTICES OR CONSUMER
PROTECTION ACT, OR ANY APPLICABLE LAW. BUYER HEREBY EXPRESSLY DISCLAIMS, WAIVES
AND RELEASES ALL OF BUYER'S RIGHTS AND REMEDIES UNDER ALL APPLICABLE LAW WHICH
MAY AFFORD CONSUMERS SPECIAL RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN
ATTORNEY OF BUYER'S OWN SELECTION, BUYER VOLUNTARILY CONSENTS TO THIS WAIVER AND
RELEASE. TO EVIDENCE BUYER'S ABILITY TO GRANT SUCH WAIVER, BUYER HEREBY
REPRESENTS AND WARRANTS TO SELLER THAT: (i) BUYER IS NOT IN A SIGNIFICANTLY
DISPARATE BARGAINING POSITION; (ii) BUYER IS REPRESENTED BY LEGAL COUNSEL IN
ENTERING INTO THIS AGREEMENT; AND (iii) SUCH LEGAL COUNSEL WAS NOT, DIRECTLY OR
INDIRECTLY, IDENTIFIED, SUGGESTED OR SELECTED BY SELLER OR ANY AGENT OF SELLER.
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(d)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
NEITHER PARTY SHALL BE ENTITLED TO CLAIM OR RECOVER FROM THE OTHER PARTY, AND
EACH PARTY HEREBY DISCLAIMS, RELEASES AND WAIVES ANY CLAIMS, AGAINST THE OTHER
PARTY FOR ANY CONSEQUENTIAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES
(INCLUDING LOST SALES, INCOME, PROFIT, REVENUE, PRODUCTION, RESERVES OR
OPPORTUNITY), EXCEPT WITH RESPECT TO INDEMNIFICATION OF THIRD PARTY CLAIMS IN
ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
19.
Termination and Remedies
(a)
Termination.
This Agreement, and the transactions contemplated
hereby, may be terminated at any time prior to the Closing: (i) by mutual
written consent of Seller and Buyer; (ii) by either Seller or Buyer, if the
Closing shall not have occurred on or before December 15, 2010 (the "Outside
Termination Date"); or (iii) as expressly provided elsewhere in this Agreement;
provided, however, the right to terminate this Agreement under this Section
19(a)(ii) shall not be available: (A) to Seller, if any breach of this Agreement
by Seller has been the principal cause of, or resulted in, the failure of the
Closing to occur on or before the Outside Termination Date; or (B) to Buyer, if
any breach of this Agreement by Buyer has been the principal cause of, or
resulted in, the failure of the Closing to occur on or before the Outside
Termination Date. If this Agreement is terminated pursuant to this Section
19(a), the Escrow Agent shall promptly deliver the Deposit (and all interest
thereon, if any) to Buyer as Buyer's sole and exclusive remedy, and each Party
hereby disclaims, waives and releases any and all Claims against the other Party
arising in connection with or related to such termination.
(b)
Buyer's Remedy.
IF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT ARE NOT CONSUMMATED ON OR BEFORE THE CLOSING DATE BY REASON OF
SELLER'S WRONGFUL FAILURE TO TENDER PERFORMANCE AT THE CLOSING, AND IF BUYER IS
NOT IN MATERIAL DEFAULT UNDER THIS AGREEMENT AND IS READY, WILLING AND ABLE TO
CLOSE, BUYER SHALL HAVE THE RIGHT TO TERMINATE THIS AGREEMENT BY WRITTEN NOTICE
DELIVERED TO SELLER, AND, IN THE ABSENCE OF A BREACH OR DEFAULT BY BUYER
HEREUNDER, THE ESCROW AGENT SHALL PROMPTLY DELIVER TO BUYER THE DEPOSIT (AND ALL