Agreement Of Purchase And Sale (Page 15 of 30) in pdf

against Seller or relating to the Property, which challenges or impairs Seller’s ability to execute or

perform its obligations under this Agreement.

9.1.3

Service Contracts. To Seller’s knowledge, the list of Service Contracts to be

delivered to Purchaser pursuant to this Agreement will be correct and complete as of the date of its

delivery.

9.2

Purchaser’s Representations and Warranties. Purchaser represents and warrants to

Seller that:

9.2.1

Organization and Authority. Purchaser is qualified to do business in the State

in which the Real Property is located. Purchaser has the full right and authority and has obtained any and

all consents required to enter into this Agreement and to consummate or cause to be consummated the

transactions contemplated hereby. This Agreement has been, and all of the documents to be delivered by

Purchaser at the Closing will be, authorized and properly executed and constitute, or will constitute, as

appropriate, the valid and binding obligation of Purchaser, enforceable in accordance with their terms.

9.2.2

Conflicts and Pending Action. There is no agreement to which Purchaser is a

party or to Purchaser’s knowledge binding on Purchaser which is in conflict with this Agreement. There

is no action or proceeding pending or, to Purchaser’s knowledge, threatened against Purchaser which

challenges or impairs Purchaser’s ability to execute or perform its obligations under this Agreement.

9.3

Survival of Representations and Warranties. The representations and warranties set

forth in this Article 9 are made as of the date of this Agreement and, except where expressly limited to the

Effective Date, are remade as of the Closing Date and shall not be deemed to be merged into or waived by

the instruments of Closing, but shall survive the Closing for a period of six (6) months (the “Survival

Period”). Terms such as “to Seller’s knowledge,” “to the best of Seller’s knowledge,” or like phrases

mean the actual present and conscious awareness or knowledge of Sam Spade, without any duty of

inquiry or investigation; provided that so qualifying Seller’s knowledge shall in no event give rise to any

personal liability on the part of Sam Spade or any other officer or employee of Seller, on account of any

breach of any representation or warranty made by Seller herein. Said terms do not include constructive

knowledge, imputed knowledge, or knowledge Seller or such persons do not have but could have

obtained through further investigation or inquiry.

No broker, agent, or party other than Seller is

authorized to make any representation or warranty for or on behalf of Seller. Each party shall have the

right to bring an action against the other on the breach of a representation or warranty hereunder, but only

on the following conditions: (i) the party bringing the action for breach first learns of the breach after

Closing and files such action within the Survival Period, and (ii) neither party shall have the right to bring

a cause of action for a breach of a representation or warranty unless the damage to such party on account

of such breach (individually or when combined with damages from other breaches) equals or exceeds

Twenty Thousand Dollars ($20,000.00). Neither party shall have any liability after Closing for the breach

of a representation or warranty hereunder of which the other party hereto had knowledge as of Closing.

Furthermore, Purchaser agrees that the maximum liability of Seller for the alleged breach of any or all

representations or warranties set forth in this Agreement is limited to One Hundred Thousand Dollars

($100,000.00).

The provisions of this Section 9.3 shall survive the Closing.

Any breach of a

representation or warranty that occurs prior to Closing shall be governed by Article 10.

ARTICLE 10 - Default and Remedies

10.1

Seller’s Remedies.

If Purchaser fails to perform its obligations pursuant to this

Agreement at or prior to Closing for any reason except failure by Seller to perform hereunder, or if prior

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H-Earnest Money Contract

Agreement Of Purchase And Sale Page 15

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