Common use of Duration and Claims Procedures and Limitations on Certain Obligations Clause in Contracts

Duration and Claims Procedures and Limitations on Certain Obligations. Notwithstanding any provision in this Agreement to the contrary, all representations and warranties contained in Sections 5.01 and 5.02 of this Agreement, as updated pursuant to the Purchaser’s Closing Certificate and the Seller’s Closing Certificate (subject to the terms hereof), respectively (collectively, the “Post Closing Obligations”) shall survive the Closing until the date that is twelve (12) months after the Closing Date (the “Survival Period”) and shall not merge into any of the closing documents; provided, however, that no person, firm, or entity shall have any liability or obligation with respect to any Post Closing Obligations unless on or prior to the date that is 16 months after the Closing Date, the party seeking to assert liability under such Post Closing Obligations shall have notified the other party in writing setting forth in reasonable detail the claim being made and a detailed description and supporting documentation of the claim (such notice being a “Claims Notice”). In the event Purchaser or Seller has actual knowledge on or prior to the Closing that any representation or warranty of the other party is incorrect or of any other claim that could be made after Closing with respect to the Post Closing Obligations (either through such party’s independent investigation or through information and materials provided to such party by the other party) and such party (although not obligated to do so) closes, then such party shall not be permitted to assert a claim for such matters following the Closing Date. All liabilities and obligations under the Post Closing Obligations shall lapse and be of no further force or effect after the last day of the Survival Period, except with respect to any matter contained in a Claims Notice delivered on or prior to the date that is 16 months after the Closing Date. Notwithstanding the foregoing, each party acknowledges and agrees that it shall have no claim under the Post Closing Obligations under this Agreement, and under the “Post Closing Obligations” under the Other Agreement, unless such party’s damages exceed Five Hundred Thousand and No/100 ($500,000.00) Dollars in the aggregate under either or both such agreements, and that the aggregate liability of a party and its Affiliates with respect to any and all claims relating to any Post Closing Obligations under this Agreement, and relating to any “Post Closing Obligations” under the Other Agreement, shall in no event exceed in the aggregate Five Million and No/100 ($5,000,000.00) Dollars, except (i) to the extent arising out of the breaching party’s fraud, or a deliberate and intended misrepresentation that was to the knowledge of the breaching party known to be untrue when made, (ii) the Survival Period limitation on claims will not apply to a breach of the tax representations and warranties set forth in Section 5.01(i), and breaches of such Section 5.01(i) may be claimed even if the liability therefor exceeds the aggregate maximum liability limitation set forth above, and (iii) liability for Post Closing Obligations relating to breaches of the representations and warranties set forth in the second sentence of Section 5.01(z) of this Agreement or the Other Agreement (collectively, “Section 5.01(z) Claims”), will not be included in determining whether the foregoing aggregate Five Million and No/100 ($5,000,000.00) Dollars maximum amount has been reached, provided the aggregate liability with respect to Section 5.01(z) Claims under this Agreement, and relating to any Section 5.01(z) Claims under the Other Agreement, shall in no event exceed the aggregate maximum liability amount of Ten Million and No/100 ($10,000,000.00) Dollars.

Duration and Claims Procedures and Limitations on Certain Obligations. Notwithstanding any provision in this Agreement to the contrary, all representations and warranties contained in Sections 5.01 and 5.02 of this Agreement, as updated pursuant to the Purchaser’s Closing Certificate and the Seller’s Closing Certificate (subject to the terms hereof)Certificate, respectively (collectively, the “Post Closing Obligations”) shall survive the Closing until the date that is twelve nine (129) months after the Closing Date (the “Survival Period”) and shall not merge into any of the closing documents; provided, however, that no person, firm, or entity shall have any liability or obligation with respect to any Post Closing Obligations unless on or prior to the date that is 16 months last day of the Survival Period after the Closing Date, the party seeking to assert liability under such Post Closing Obligations shall have notified the other party in writing setting forth in reasonable detail specifically the claim being made and a detailed description and supporting documentation of the claim (such notice being a “Claims Notice”). In the event Purchaser or Seller has actual knowledge on or prior to before the Closing that any representation or warranty of the other party Seller is incorrect or of any other claim that could be made after Closing with respect to the Post Closing Obligations (either through such partyPurchaser’s independent investigation or through information and materials provided to such party Purchaser by the other partySeller) and such party Purchaser (although not obligated to do so) closes, then such party Purchaser shall not be permitted to assert a claim for such matters following the Closing Date. All liabilities and obligations under the Post Closing Obligations shall lapse and be of no further force or effect after the last day of the Survival Period, except with respect to any matter contained in a Claims Notice delivered on or prior to the last day of the Survival Period and an action if filed with respect thereto prior to the date that is 16 months after sixty (60) days following the Closing Dateexpiration of the Survival Period. Notwithstanding the foregoing, each party Purchaser acknowledges and agrees that it shall have no claim against Seller under the Post Closing Obligations under this Agreement, and under the “Post Closing Obligations” under the Other Agreement, unless such party’s damages exceed Five Two Hundred Fifty Thousand and No/100 Dollars ($500,000.00250,000.00) Dollars in the aggregate under either or both such agreements, and that the aggregate liability of a party and its Affiliates Seller with respect to any and all claims of Purchaser relating to any Post Closing Obligations under this Agreement, and relating to any “Post Closing Obligations” under the Other Agreement, shall in no event exceed in the aggregate Two Million Five Million Hundred Thousand and No/100 Dollars ($5,000,000.002,500,000). Strategic Hotel Funding, L.L.C., a Delaware limited liability company (“Funding”) Dollarsand the owner and holder, except indirectly, of all of the issued and outstanding equity interests in Seller, hereby undertakes and agrees that Funding shall be jointly and severally liable with Seller to Purchaser with respect to the Post Closing Obligations and with respect to Seller’s obligations set forth in Article VII which survive the Closing, provided that (i) such liability shall be subject to the extent arising out all of the breaching partylimitations applicable to Seller’s fraud, or a deliberate liabilities set forth in this Agreement and intended misrepresentation that was to the knowledge of the breaching party known to be untrue when made, (ii) the Survival Period limitation on claims will not apply to a breach of the tax representations and warranties set forth in Section 5.01(i), and breaches of such Section 5.01(i) may be claimed even if the liability therefor exceeds the aggregate maximum liability limitation set forth above, and (iii) liability for Post Closing Obligations relating to breaches of the representations and warranties set forth in the second sentence of Section 5.01(z) of this Agreement or the Other Agreement (collectively, “Section 5.01(z) Claims”), will not be included in determining whether the foregoing aggregate Five Million and No/100 ($5,000,000.00) Dollars maximum amount has been reached, provided the aggregate liability with respect to Section 5.01(z) Claims under this Agreementthe Post Closing Obligations, and relating to any Section 5.01(z) Claims under the Other Agreement, shall in no event exceed shall such liability of Funding survive with respect to any of Purchaser’s claims not made prior to the aggregate maximum liability amount expiration of Ten Million and No/100 ($10,000,000.00) Dollars.the Survival Period