"REPRESENTATION CAP").
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, HARSIMUS SHALL BE SOLELY LIABLE FOR A BREACH OF THE REPRESENTATIONS
AND WARRANTIES SET FORTH IN SECTION 8.1, COLUMBIA SHALL BE SOLELY LIABLE FOR A
BREACH OF THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.2, AND
SELLER SHALL BE SOLELY LIABLE FOR A BREACH OF ITS REPRESENTATIONS AND WARRANTIES
SET FORTH IN SECTION 8.3.
NONE OF HARSIMUS, COLUMBIA OR SELLER SHALL HAVE ANY
LIABILITY WITH RESPECT ANY REPRESENTATION, WARRANTY AND COVENANT HEREIN WHICH
MAY HAVE BEEN MADE BY ANY OF THEM,
36
RESPECTIVELY, IF, PRIOR TO THE CLOSING, PURCHASER HAS ACTUAL KNOWLEDGE OF A
BREACH OF SUCH REPRESENTATION, WARRANTY OR COVENANT BY SUCH PARTY AND PURCHASER
NEVERTHELESS CONSUMMATES THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT.
THE
CLOSING SURVIVING OBLIGATIONS WILL SURVIVE CLOSING WITHOUT LIMITATION UNLESS A
SPECIFIED PERIOD IS OTHERWISE PROVIDED IN THIS AGREEMENT.
ALL OTHER
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS MADE OR UNDERTAKEN BY
HARSIMUS, COLUMBIA, OR SELLER UNDER THIS AGREEMENT, UNLESS OTHERWISE
SPECIFICALLY PROVIDED HEREIN, WILL NOT SURVIVE THE CLOSING DATE BUT WILL BE
MERGED INTO THE LLC ASSIGNMENT AND ASSUMPTION AND OTHER CLOSING DOCUMENTS
DELIVERED AT THE CLOSING.
SECTION 8.6
UPDATES AND ADDITIONAL REPRESENTATION/WARRANTY MATTERS.
(A)
AT THE CLOSING, EACH SELLER ENTITY AND SELLER SHALL DELIVER TO
PURCHASER A CERTIFICATE (EACH, AN "UPDATE CERTIFICATE") UPDATING ANY OR ALL OF
THE REPRESENTATIONS AND WARRANTIES MADE BY EACH SUCH PARTY IN THIS AGREEMENT.
THE UPDATES CONTAINED IN THE UPDATE CERTIFICATE SHALL IN NO WAY AFFECT
PURCHASER'S OBLIGATIONS TO CLOSE THIS TRANSACTION UNLESS (X) ANY UPDATE REVEALS
A BREACH ON THE PART OF A SELLER ENTITY OR SELLER UNDER THIS AGREEMENT, IN WHICH
CASE PURCHASER MAY PURSUE ITS REMEDIES SET FORTH IN SECTION 13.1(A) AND (B) OF
THIS AGREEMENT, OR (Y) ANY UPDATE (OR GROUP OF UPDATES, IN THE AGGREGATE) HAS A
MATERIAL ADVERSE EFFECT UPON THE PROPERTY OR SELLER'S LLC INTERESTS AND DOES NOT
REVEAL A BREACH ON THE PART OF ANY OF SELLER OR SELLER ENTITY, IN WHICH CASE
PURCHASER MAY EITHER (I) CLOSE THIS TRANSACTION WITHOUT ANY ADJUSTMENT IN THE
PURCHASE PRICE, OR (II) TERMINATE THIS AGREEMENT UPON WRITTEN NOTICE TO SELLER,
WHEREUPON THE EARNEST MONEY DEPOSIT SHALL BE RETURNED TO PURCHASER AND NEITHER
PARTY HERETO SHALL HAVE ANY FURTHER RIGHTS UNDER THIS AGREEMENT OTHER THAN WITH
RESPECT TO THE TERMINATION SURVIVING OBLIGATIONS.
PURCHASER SHALL HAVE NO
ABILITY TO UPDATE ITS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.4 AT
CLOSING, IT BEING AGREED THAT ANY MODIFICATION TO PURCHASER'S REPRESENTATIONS
AND WARRANTIES SET FORTH IN THIS AGREEMENT SHALL HAVE A MATERIAL ADVERSE EFFECT
UPON PURCHASER'S ABILITY AND/OR AUTHORITY TO CONSUMMATE THIS TRANSACTION.
(B)
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY,
INCLUDING, WITHOUT LIMITATION, THE PROVISIONS OF SECTIONS 8.1(C) AND (D),
SECTIONS 8.2(C) AND (D), SECTION 8.3(A), SECTION 9.1(J) AND SECTION 9.2(G),
PURCHASER HEREBY ACKNOWLEDGES THAT HARSIMUS, COLUMBIA AND SELLER HAVE NOT MADE,
AND ARE NOT MAKING, EITHER INDIVIDUALLY OR COLLECTIVELY, ANY REPRESENTATIONS OR
WARRANTIES WHATSOEVER IN THIS AGREEMENT AS TO WHETHER OR NOT THE APPROVAL AND