necessary
to give operative effect to such surviving representations, warranties,
covenants and agreements.
SECTION 11.5
CERTAIN POST-CLOSING OBLIGATIONS.
WITHIN TWENTY (20)
DAYS AFTER THE CLOSING, BUYER SHALL (I) OBTAIN AND FILE WITH THE APPROPRIATE
GOVERNMENTAL AUTHORITIES REPLACEMENT SURETY BONDS AND/OR GUARANTEES FOR ALL
ASSETS FOR WHICH SELLER HAS SURETY BONDS AND/OR GUARANTEES OUTSTANDING (AS
REFLECTED IN A LIST OF SUCH SURETY BONDS AND/OR GUARANTEES TO BE PROVIDED TO
BUYER BY SELLER), (II) OBTAIN THE FULL AND COMPLETE RELEASE OF SELLER FROM (OR
THE FULL AND COMPLETE CANCELLATION OF) ALL SUCH BONDS AND/OR GUARANTEES INSOFAR
AS THEY RELATE TO THE ASSETS, AND (III) FURNISH SELLER APPROPRIATE EVIDENCE OF
BUYER'S COMPLIANCE WITH THE REQUIREMENTS OF CLAUSES (I) AND (II), INCLUDING
COPIES OF SUCH REPLACEMENT BONDS AND/OR GUARANTEES AND SUCH RELEASES AND/OR
CANCELLATIONS.
WITHIN A REASONABLE PERIOD OF TIME FOLLOWING THE CLOSING, BUYER
SHALL REMOVE OR PAINT OVER, AS APPROPRIATE, ANY LOGO, SERVICE MARK, TRADE NAME
OR TRADEMARK WHICH CONSTITUTES AN EXCLUDED ASSET AND IS ON THE ASSETS.
ARTICLE XII.
LIMITATIONS
SECTION 12.1
DISCLAIMER OF WARRANTIES.
NOTWITHSTANDING ANYTHING
CONTAINED TO THE CONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT, IT IS THE
EXPLICIT INTENT OF EACH PARTY HERETO THAT SELLER IS NOT MAKING ANY
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
BEYOND THOSE REPRESENTATIONS OR WARRANTIES EXPRESSLY GIVEN IN THIS AGREEMENT AND
THE SPECIAL
24
WARRANTY OF TITLE SET FORTH IN THE CONVEYANCE, AND IT IS UNDERSTOOD THAT,
WITHOUT LIMITING SUCH EXPRESS REPRESENTATIONS AND WARRANTIES AND SPECIAL
WARRANTY OF TITLE, BUYER TAKES THE COMPANY, THE MEMBERSHIP INTERESTS AND THE
ASSETS AS IS AND WHERE IS AND WITH ALL FAULTS.
WITHOUT LIMITING THE GENERALITY
OF THE IMMEDIATELY PRECEDING SENTENCE, SELLER HEREBY (I) EXPRESSLY DISCLAIMS AND
NEGATES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT COMMON LAW, BY
STATUTE OR OTHERWISE, RELATING TO (A) THE CONDITION OF THE ASSETS, THE COMPANY
AND THE MEMBERSHIP INTERESTS (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR
EXPRESS WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF
CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, OR THE PRESENCE OR ABSENCE OF ANY
HAZARDOUS MATERIALS IN OR ON, OR DISPOSED OF OR DISCHARGED FROM, THE ASSETS) OR
(B) ANY INFRINGEMENT BY SELLER OR ANY OF ITS AFFILIATES OF ANY PATENT OR
PROPRIETARY RIGHT OF ANY THIRD PARTY; AND (II) NEGATES ANY RIGHTS OF BUYER UNDER
STATUTES TO CLAIM DIMINUTION OF CONSIDERATION AND ANY CLAIMS BY BUYER FOR
DAMAGES BECAUSE OF DEFECTS, WHETHER KNOWN OR UNKNOWN, IT BEING THE INTENTION OF
SELLER AND BUYER THAT THE ASSETS, THE COMPANY AND THE MEMBERSHIP INTERESTS ARE
TO BE ACCEPTED BY BUYER IN THEIR PRESENT CONDITION AND STATE OF REPAIR.
SECTION 12.2
TEXAS DECEPTIVE TRADE PRACTICES ACT WAIVER.
BUYER (A)
REPRESENTS AND WARRANTS TO SELLER THAT IT (I) IS ACQUIRING THE COMPANY, THE
MEMBERSHIP INTERESTS AND THE ASSETS FOR COMMERCIAL OR BUSINESS USE, (II) IS
REPRESENTED BY LEGAL COUNSEL, (III) ACKNOWLEDGES THE CONSIDERATION PAID OR TO BE
PAID FOR THE ASSETS WILL EXCEED $500,000, AND (IV) HAS KNOWLEDGE AND EXPERIENCE
IN FINANCIAL