based on the Final Closing Balance Sheets, which calculations shall be in the same for as the Initial calculation, as set forth on Exhibit E (the “Final Calculation” and as applied to the Subject Entities Net Asset Value, the “Final Subject Entities Net Asset Value”); provided that the Parties acknowledge and agree that the value of the real estate reflected on the Initial Closing Balance Sheets is final and will not change on the Final Closing Balance Sheets.
2.3.3To the extent there is any difference between the Initial Calculation and the Final Calculation, REIT B on the one hand, and REIT A on the other hand, shall make true-up adjustments within ten (10) business days following delivery of the Final Closing Balance Sheets and the Final Calculation, as follows:
(1)To the extent the Final Subject Entities Net Asset Value exceeds the Initial Subject Entities Net Asset Value, REIT B shall pay the amount of such excess to REIT A.
(2)To the extent the Initial Subject Entities Net Asset Value exceeds the Final Subject Entities Net Asset Value, REIT A shall pay the amount of such excess to REIT B.
2.3.4This Section 2.3 shall survive the Closing.
3.As-Is, Where Is.
3.1Sale “As Is, Where Is”. REIT B acknowledges and agrees that at Closing, REIT B (or its designee) will acquire the Subject Membership Interests “AS IS, WHERE IS, WITH ALL FAULTS,” without any representations or warranties whatsoever as to their fitness, condition, merchantability or any other warranty, express or implied, except for the representations and warranties made by REIT A in Section 5 of this Agreement (the “REIT A Representations”). REIT B is relying on its own investigations and has not relied and will not rely on, and none of REIT A nor any other person or entity has made, is liable for or is bound by any express or implied representations or warranties, guarantees, statements or information pertaining to the Subject Membership Interests, Subject Entities or Subject Properties, by or to whomever made or given, directly or indirectly, orally or in writing, except for the REIT A Representations. REIT B specifically disclaims any warranty, guaranty, or representation, oral or written, past or present, express or implied, concerning the Subject Membership Interests, Subject Entities or Subject Properties, or matters related thereto, except for the REIT A Representations. REIT B represents that it is a knowledgeable, experienced and sophisticated purchaser of real estate and that it is relying solely on its own expertise and that of its consultants, attorneys and advisors in accordance with this Agreement and it shall make an independent verification of the accuracy of any documents and information provided to, made available to or obtained by REIT B. REIT B acknowledges that none of REIT A or any of its advisors, officers, directors, trustees, members, employees, agents, attorneys, consultants and/or shareholders have made any representations, warranties, promises, covenants, agreements or guaranties of any kind or character whatsoever, whether express or implied, oral or written, past, present or future, concerning the suitability, manner or standard of construction or appropriateness of the improvements of the Subject Properties for a particular purpose.
3.2Investigation. REIT B acknowledges that it has had an opportunity to perform due diligence with respect to the Subject Membership Interests, Subject Entities and the Subject