respect to a preferential right or Consent
Requirement in excess of the Allocated Value of the Asset affected thereby; and
(iv)
Seller shall not be required to indemnify Purchaser and
Purchaser Indemnitees for aggregate Damages in excess of ten percent (10%) of
the Purchase Price.
(d)
Notwithstanding anything to the contrary contained in this
Agreement, in addition to the foregoing limitations, in no event shall Seller's
aggregate liability to Purchaser and Purchaser Indemnitees under the Agreement
at any time exceed the Purchase Price.
(e)
Notwithstanding anything to the contrary contained in this
Agreement, in no event shall Seller have any obligations for indemnification
with respect to any claim for breach of the representation and warranty set
forth in Section 5.21.
Section 11.5
Recording.
As soon as practicable after Closing, Purchaser shall record the Conveyances in
the appropriate counties as well as the appropriate governmental agencies and
provide Seller with copies of all recorded or approved instruments.
Section 11.6
Waiver of Trade Practices Acts.
(a)
IT IS THE INTENTION OF THE PARTIES THAT PURCHASER'S RIGHTS
AND REMEDIES WITH RESPECT TO THIS TRANSACTION AND WITH RESPECT TO ALL ACTS OR
PRACTICES OF SELLER, PAST, PRESENT OR FUTURE, IN CONNECTION WITH THIS
TRANSACTION SHALL BE GOVERNED BY LEGAL PRINCIPLES OTHER THAN THE TEXAS DECEPTIVE
TRADE PRACTICES-CONSUMER PROTECTION ACT, SUBCHAPTER E OF CHAPTER 17, SECTIONS
17.41 ET SEQ., OF THE TEXAS BUSINESS AND COMMERCE CODE, AS AMENDED (THE "DTPA").
AS SUCH, PURCHASER HEREBY WAIVES THE APPLICABILITY OF THE DTPA TO THIS
TRANSACTION AND ANY AND ALL DUTIES, RIGHTS OR REMEDIES THAT MIGHT BE IMPOSED BY
THE DTPA, WHETHER SUCH DUTIES, RIGHTS AND REMEDIES ARE APPLIED DIRECTLY BY THE
DTPA ITSELF OR INDIRECTLY IN CONNECTION WITH OTHER STATUTES. PURCHASER
ACKNOWLEDGES, REPRESENTS AND WARRANTS THAT IT IS PURCHASING THE GOODS AND/OR
SERVICES COVERED BY THIS AGREEMENT FOR COMMERCIAL OR BUSINESS USE AND NOT FOR
PERSONAL, FAMILY, AND HOUSEHOLD PURPOSES; THAT PURCHASER HAS ASSETS OF
TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00) OR MORE ACCORDING TO ITS
MOST RECENT FINANCIAL STATEMENT PREPARED IN ACCORDANCE WITH GAAP; THAT PURCHASER
HAS KNOWLEDGE AND EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO
EVALUATE THE MERITS AND RISKS OF A TRANSACTION SUCH AS THIS; AND THAT PURCHASER
IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION WITH SELLER.
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(b)
PURCHASER EXPRESSLY RECOGNIZES THAT THE PRICE FOR WHICH SELLER
HAS AGREED TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT HAS BEEN PREDICATED
UPON THE INAPPLICABILITY OF THE DTPA AND THIS WAIVER OF THE DTPA. PURCHASER
FURTHER RECOGNIZES THAT SELLER, IN DETERMINING TO PROCEED WITH THE ENTERING INTO
OF THIS AGREEMENT, HAS EXPRESSLY RELIED ON THIS WAIVER AND THE INAPPLICABILITY
OF THE DTPA.
Article 12
MISCELLANEOUS
Section 12.1
Counterparts.
This Agreement may be executed in counterparts, each of which shall be deemed an
original instrument, but all such counterparts together shall constitute but one
agreement. Delivery of an executed counterpart signature page by facsimile or
electronic transmittal (PDF) is as effective as executing and delivering this
Agreement in the presence of other Parties