INCLUDING CONSTRUCTION DEFECTS AND
ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS (INCLUDING ALL LIABILITY FOR
CLAIMS THAT MAY ARISE UNDER THE COMPREHENSIVE ENVIRONMENTAL RESPONSE,
COMPENSATION AND LIABILITY ACT, AS AMENDED, 42 U.S.C. § 9601 ET SEQ., THE
RESOURCE CONSERVATION AND RECOVERY ACT, AS AMENDED, 42 U.S.C. § 6901 ET. SEQ.,
THE OIL POLLUTION ACT, 33 U.S.C. § 2701 ET SEQ. AND THE TEXAS SOLID WASTE
DISPOSAL ACT TEX. HEALTH & SAFETY CODE ANN. § 361 ET SEQ.), MAY NOT HAVE BEEN
41
REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER (AND TARGET COMPANIES),
THEIR SUCCESSORS AND ASSIGNS, UPON THE CLOSING, SHALL BE DEEMED TO HAVE WAIVED,
RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF
ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER (AND THE
TARGET COMPANIES) MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S
PARTNERS, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, EMPLOYEES AND AGENTS) AT
ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION
DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS (INCLUDING ANY
ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES
OR MATTERS REGARDING THE PROPERTY.
14.(d)
THE PROVISIONS OF THIS SECTION 14 SHALL SURVIVE THE CLOSING.
15.
LIABILITY FOR CONSTRUCTION DEFECTS; WARRANTY.
15.(a)
PURCHASER, ITS SUCCESSORS AND ASSIGNS AGREE THAT, EXCEPT AS OTHERWISE
SPECIFICALLY STATED IN THIS AGREEMENT OR THE CLOSING DOCUMENTS, NEITHER SELLER
NOR SELLER'S AFFILIATES SHALL BE RESPONSIBLE OR LIABLE TO PURCHASER OR ANY
SUCCESSOR OR ASSIGNEE OF PURCHASER (OR TO THE TARGET COMPANIES OR ANY SUCCESSOR
OR ASSIGNEE OF THE TARGET COMPANIES), FOR ANY CONSTRUCTION DEFECTS, ERRORS,
OMISSIONS OR ON ACCOUNT OF ANY OTHER CONDITIONS AFFECTING THE PROPERTY, AS
PURCHASER IS PURCHASING THE PROPERTY, DIRECTLY OR INDIRECTLY, AS IS, WHERE IS
AND WITH ALL FAULTS AS PROVIDED IN SECTION 14. EXCEPT AS OTHERWISE SPECIFICALLY
STATED IN THIS AGREEMENT OR IN THE CLOSING DOCUMENTS, PURCHASER (AND THE TARGET
COMPANIES) OR ANYONE CLAIMING BY, THROUGH OR UNDER PURCHASER (OR THE TARGET
COMPANIES) HEREBY AGREES THAT, BY THE CLOSING THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT TO OCCUR ON THE CLOSING DATE, PURCHASER SHALL HAVE FULLY RELEASED
AND COVENANTED NOT TO SUE SELLER OR SELLER'S AFFILIATES, OR THEIR EMPLOYEES,
OFFICERS, DIRECTORS, REPRESENTATIVES AND AGENTS FOR ANY COST, LOSS, LIABILITY,
DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO
ANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING THE
PROPERTY. PURCHASER (ON ITS OWN BEHALF AND ON BEHALF OF THE TARGET COMPANIES)
FURTHER ACKNOWLEDGES AND AGREES THAT THIS RELEASE SHALL BE GIVEN FULL FORCE AND
EFFECT ACCORDING TO EACH OF ITS EXPRESS TERMS AND PROVISIONS, INCLUDING THOSE
RELATING TO UNKNOWN AND SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. THIS
COVENANT RELEASING SELLER AND SELLER'S AFFILIATES SHALL BE BINDING UPON
PURCHASER, THE TARGET COMPANIES, AND THEIR SUCCESSORS AND ASSIGNS FROM AND AFTER
THE CLOSING. EFFECTIVE