LAWS OF THE STATE OF DELAWARE.
35
(B)
AUTHORITY.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND ALL
OTHER DOCUMENTS NOW OR HEREAFTER TO BE EXECUTED AND DELIVERED BY PURCHASER
PURSUANT TO THIS AGREEMENT (COLLECTIVELY, THE "PURCHASER DOCUMENTS" ) AND THE
PERFORMANCE OF PURCHASER'S OBLIGATIONS HEREUNDER AND UNDER THE PURCHASER
DOCUMENTS HAVE BEEN OR WILL BE DULY AUTHORIZED BY ALL NECESSARY ACTION ON THE
PART OF PURCHASER, AND THIS AGREEMENT CONSTITUTES, AND THE PURCHASER DOCUMENTS
WILL CONSTITUTE, THE LEGAL, VALID AND BINDING OBLIGATION OF PURCHASER,
ENFORCEABLE IN ACCORDANCE WITH THEIR TERMS, SUBJECT TO BANKRUPTCY,
REORGANIZATION AND OTHER SIMILAR LAWS AFFECTING THE ENFORCEMENT OF CREDITORS'
RIGHTS GENERALLY AND EXCEPT AS MAY BE LIMITED BY GENERAL EQUITABLE PRINCIPLES.
THE PERSON SIGNING THIS AGREEMENT ON BEHALF OF PURCHASER HAS BEEN DULY
AUTHORIZED TO SIGN AND DELIVER THIS AGREEMENT ON BEHALF THEREOF.
(C)
NON-CONTRAVENTION.
THE EXECUTION AND DELIVERY OF THIS AGREEMENT
AND THE PURCHASER DOCUMENTS BY PURCHASER AND THE CONSUMMATION BY PURCHASER OF
THE TRANSACTIONS CONTEMPLATED HEREBY WILL NOT (I) VIOLATE ANY JUDGMENT, ORDER,
INJUNCTION, DECREE, REGULATION OR RULING OF ANY COURT OR AUTHORITY HAVING
JURISDICTION OVER PURCHASER, (II) CONFLICT WITH, RESULT IN A BREACH OF, OR
CONSTITUTE A DEFAULT UNDER THE ORGANIZATIONAL DOCUMENTS OF PURCHASER, (III)
VIOLATE ANY NOTE OR OTHER EVIDENCE OF INDEBTEDNESS, ANY MORTGAGE, DEED OF TRUST
OR INDENTURE TO WHICH PURCHASER IS A PARTY OR BY WHICH IT IS BOUND, OR (IV)
VIOLATE ANY MATERIAL AGREEMENT OR INSTRUMENT TO WHICH PURCHASER IS A PARTY OR BY
WHICH IT IS BOUND.
(D)
CONSENTS.
NO CONSENT, WAIVER, APPROVAL OR AUTHORIZATION IS
REQUIRED FROM ANY PERSON OR ENTITY (THAT HAS NOT ALREADY BEEN OBTAINED) IN
CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY PURCHASER OR THE
PERFORMANCE BY PURCHASER OF THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.5
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF HARSIMUS SET FORTH IN SECTION 8.1, OF COLUMBIA
SET FORTH IN SECTION 8.2, OF SELLER SET FORTH IN SECTION 8.3(A) AND 8.3(R) AND
OF PURCHASER SET FORTH IN SECTION 8.4, SHALL SURVIVE THE CLOSING INDEFINITELY
AND SHALL NOT BE SUBJECT TO THE REPRESENTATION BASKET (AS HEREINAFTER DEFINED)
AND THE REPRESENTATION CAP (AS HEREINAFTER DEFINED) SET FORTH BELOW.
THE
REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN SECTIONS 8.3(B) THROUGH
8.3(Q) WILL SURVIVE THE CLOSING FOR A PERIOD OF TWELVE (12) MONTHS, AFTER WHICH
TIME THEY WILL MERGE INTO THE LLC ASSIGNMENT AND ASSUMPTION.
PURCHASER WILL NOT
HAVE ANY RIGHT TO BRING ANY ACTION AGAINST HARSIMUS, COLUMBIA, OR SELLER AS A
RESULT OF ANY UNTRUTH, INACCURACY OR BREACH OF ANY REPRESENTATIONS AND
WARRANTIES OF HARSIMUS, COLUMBIA, OR SELLER, AS THE CASE MAY BE, UNLESS AND
UNTIL THE AGGREGATE AMOUNT OF ALL LIABILITY AND LOSSES ARISING OUT OF ALL SUCH
UNTRUTHS EXCEEDS ONE HUNDRED THOUSAND AND 00/100 DOLLARS ($100,000.00) (THE
"REPRESENTATION BASKET"); AND THEN ONLY TO THE EXTENT OF SUCH EXCESS.
IN
ADDITION, IN NO EVENT WILL SELLER'S LIABILITY FOR ALL SUCH BREACHES EXCEED, IN
THE AGGREGATE, THE SUM OF TEN MILLION 00/100 DOLLARS ($10,000,000.00) (THE