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 AND IMPAIRS PURCHASER'S ABILITY TO PERFORM ITS
OBLIGATIONS UNDER 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 EFFECTIVE DATE
AND, EXCEPT IN THE CASE OF SUBSECTION 9.1.5, 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 NINE (9) MONTHS (THE
"SURVIVAL PERIOD").
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT TO THE
CONTRARY, SELLER'S MAXIMUM LIABILITY FOR THE BREACH OF ANY OR ALL
REPRESENTATIONS OR WARRANTIES CONTAINED HEREIN SHALL BE LIMITED TO $1,500,000.
TERMS SUCH AS "TO SELLER'S KNOWLEDGE," "TO THE BEST OF SELLER'S KNOWLEDGE" OR
LIKE PHRASES MEAN THE ACTUAL KNOWLEDGE OF JOHN GREENMAN AND MONICA DEAN, AFTER
REASONABLE INQUIRY AND INVESTIGATION.
NO BROKER, AGENT, OR PARTY OTHER THAN
SELLER IS AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY FOR OR ON BEHALF OF
SELLER.
NEITHER PARTY SHALL HAVE ANY LIABILITY AFTER CLOSING FOR THE BREACH OF
A REPRESENTATION OR WARRANTY HEREUNDER OF WHICH THE OTHER PARTY HERETO HAD
ACTUAL KNOWLEDGE AS OF CLOSING.
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 A PERMITTED TERMINATION HEREUNDER, OR IF PRIOR
TO CLOSING ANY ONE OR MORE OF PURCHASER'S REPRESENTATIONS OR WARRANTIES ARE
BREACHED IN ANY MATERIAL RESPECT, SELLER SHALL BE ENTITLED, AS ITS SOLE REMEDY
(EXCEPT AS PROVIDED IN SECTIONS 4.10, 8.6, 10.3 AND 10.4 HEREOF), TO TERMINATE
THIS AGREEMENT AND RECOVER THE EARNEST MONEY AS LIQUIDATED DAMAGES AND NOT AS
PENALTY, IN FULL SATISFACTION OF CLAIMS AGAINST PURCHASER HEREUNDER.
SELLER
HEREBY WAIVES ALL OTHER REMEDIES, WHETHER AT LAW OR IN EQUITY.
SELLER AND
PURCHASER AGREE THAT SELLER'S DAMAGES RESULTING FROM PURCHASER'S DEFAULT ARE
DIFFICULT, IF NOT IMPOSSIBLE, TO DETERMINE AND THE EARNEST MONEY IS A FAIR
ESTIMATE OF THOSE DAMAGES WHICH HAS BEEN AGREED TO IN AN EFFORT TO CAUSE THE
AMOUNT OF SUCH DAMAGES TO BE CERTAIN.
NOTWITHSTANDING ANYTHING IN THIS
SECTION 10.1 TO THE CONTRARY, IN THE EVENT OF PURCHASER'S DEFAULT OR A
TERMINATION OF THIS AGREEMENT, SELLER SHALL HAVE ALL REMEDIES AVAILABLE AT LAW
OR IN EQUITY IN THE EVENT PURCHASER OR ANY PARTY RELATED TO OR