IN WRITING BY THE PARTY OR PARTIES ENTITLED TO THE BENEFIT OF SUCH
CONDITION, AND (III) THE PARTIES NEVERTHELESS CONSUMMATE THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AT THE CLOSING, THEN THE PARTIES SHALL BE DEEMED
TO HAVE WAIVED ANY CLAIM FOR LOSS OR OTHER RELIEF ONLY TO THE EXTENT THAT SUCH
LOSS OR OTHER RELIEF RELATES SOLELY AND DIRECTLY TO SUCH CONDITION THAT WAS SO
WAIVED.
(H)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, ABSENT FRAUD NO PARTY HERETO SHALL HAVE ANY LIABILITY UNDER THIS
AGREEMENT FOR CONSEQUENTIAL DAMAGES (SUCH AS LOSS OF PROFIT), OR, MULTIPLE,
TREBLE, EXEMPLARY OR PUNITIVE DAMAGES OF ANY TYPE UNDER ANY CIRCUMSTANCES
REGARDLESS OF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER TEXAS LAW, THE LAW OF
ANY OTHER STATE, OR FEDERAL LAW.
SECTION 8.6
EXCLUSIVE REMEDIES.
(A)
EXCEPT WITH RESPECT TO TAX CLAIMS (WHICH ARE
GOVERNED SOLELY BY ARTICLE IV), AND ABSENT FRAUD, THE REMEDIES OF THE PARTIES
SPECIFICALLY PROVIDED FOR BY THIS ARTICLE VIII SHALL BE THE SOLE AND EXCLUSIVE
REMEDIES OF THE PARTIES FOR (I) ANY BREACH OR INACCURACY OF THE REPRESENTATIONS
AND WARRANTIES CONTAINED IN THIS AGREEMENT OR ANY OF THE TRANSACTION DOCUMENTS,
OR (II) THE FAILURE TO PERFORM ANY COVENANTS, AGREEMENTS OR OBLIGATIONS
CONTAINED IN THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR IN ANY OTHER AGREEMENT
OR DOCUMENT FURNISHED OR DELIVERED PURSUANT HERETO.
(B)
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING
PROVISIONS OF SECTION 8.6(A), THE PARTIES ACKNOWLEDGE AND AGREE THAT, BEFORE THE
CLOSING DATE, SECTION 8.1 PROVIDES THE EXCLUSIVE REMEDIES FOR ANY MATERIAL
BREACH OR INACCURACY OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
CONTAINED IN THIS AGREEMENT.
SECTION 8.7
MEDIATION.
BEFORE EITHER PARTY
MAY INITIATE ANY SUIT, ARBITRATION OR OTHER PROCEEDING, THE PARTIES PLEDGE TO
ATTEMPT FIRST TO RESOLVE THE CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO
THIS AGREEMENT ("DISPUTE") BY MEDIATION BEFORE A MUTUALLY ACCEPTABLE MEDIATOR
WITHIN THIRTY (30) DAYS AFTER EITHER PARTY FIRST GIVES NOTICE OF MEDIATION.
MEDIATION SHALL BE CONDUCTED IN DALLAS, TEXAS AND SHALL BE CONDUCTED AND
COMPLETED WITHIN SIXTY (60) DAYS FOLLOWING THE DATE EITHER PARTY FIRST GIVES
NOTICE OF MEDIATION.
THE FEES AND EXPENSES OF THE MEDIATOR SHALL BE SHARED
EQUALLY BY THE PARTIES.
THE MEDIATOR SHALL BE DISQUALIFIED AS A WITNESS, EXPERT
OR COUNSEL FOR ANY PARTY WITH RESPECT TO THE DISPUTE AND ANY RELATED MATTER.
MEDIATION IS A COMPROMISE NEGOTIATION AND SHALL CONSTITUTE PRIVILEGED
COMMUNICATIONS.
THE ENTIRE MEDIATION PROCESS SHALL BE CONFIDENTIAL AND THE
CONDUCT, STATEMENTS, PROMISES, OFFERS, VIEWS AND OPINIONS OF
45
THE MEDIATOR AND THE PARTIES SHALL NOT BE DISCOVERABLE OR ADMISSIBLE IN ANY
LEGAL PROCEEDING FOR ANY PURPOSE; PROVIDED, HOWEVER, THAT EVIDENCE WHICH IS
OTHERWISE DISCOVERABLE OR ADMISSIBLE SHALL NOT BE EXCLUDED FROM DISCOVERY OR
ADMISSION AS A RESULT OF ITS USE IN THE MEDIATION.
SECTION 8.8
HOLDBACK FUND.
(A)
ESCROW OF HOLDBACK FUND.
AT THE CLOSING,
PURCHASER SHALL CAUSE THE HOLDBACK FUND TO BE DELIVERED, BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS TO AND DIRECTLY DEPOSITED WITH, JPMORGAN CHASE BANK,
A NATIONAL ASSOCIATION (THE "ESCROW