Common use of Limits on Indemnification Clause in Contracts

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be $185,000,000 (the “Cap”); provided that the Cap shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification (x) unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller or the Buyer, as applicable, equals or exceeds $18,500,000 (the “Basket Amount”), in which case the Seller or the Buyer, as applicable, shall be liable only for the Losses in excess of the Basket Amount or (y) in respect of any claim that results in Losses of less than $50,000; provided that the foregoing limitations in clauses (x) and (y) shall not be applicable in respect of any breach of a Fundamental Representation or any breach of the representations and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII; (iii) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax Period. (c) The amount of any and all Losses under this Article VII shall be determined net of (i) any Tax benefit actually realized by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable recoveries to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VII. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against either Party pursuant to Section 8.2(a) or 8.3(a) (other than with respect to any party for breach of any representation, warranty or covenant contained hereinFundamental Representation), unless written notice of such claim is received by such partyParty in accordance with Section 8.4 on or prior to the date on which the representation or warranty on which such claim is based ceases to survive as set forth in Section 8.1, in which case such representation or warranty shall survive as to such claim until such claim has been finally resolved. No claim may be asserted against either Party under Sections 8.2(b) or 8.3(b) unless written notice of such claim is received by such Party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which that is 12 months following the representation, warranty or covenant on date by which such claim covenant or agreement is based ceases required to survive as set forth in Section 7.1be performed, in which case such representation, warranty covenant or covenant agreement shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: : (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be $185,000,000 (the “Cap”); provided that the Cap shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification (xunder Section 8.2(a) unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller or the Buyer, as applicable, equals or exceeds $18,500,000 (the “Basket Amount”)450,000, in which case the Seller or the Buyer, as applicable, shall be liable only for the Losses in excess of such amount; (ii) the Basket Amount or (y) in respect maximum aggregate amount of any claim that results in indemnifiable Losses of less than $50,000; provided that which may be recovered by the foregoing limitations in clauses (x) and (y) shall not be applicable in respect of any breach of a Fundamental Representation or any breach of the representations and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment Buyer Indemnified Parties under Section 2.3 and amounts paid with respect 8.2(a) (including, subject to indemnification claims under this Article VII; clause (iiiv) no party hereto shall have below, any liability under any provision of this Agreement for Losses relating to any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution loss of valuefuture revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement) shall be an amount equal to $11,440,000; (iii) the Seller shall not be obligated to indemnify any Buyer Indemnified Party with respect to any Loss to the extent that a specific accrual or reserve for the amount of such Loss was reflected on the Balance Sheet; (iv) the Seller shall not be obligated to indemnify any Buyer Indemnified Party with respect to any Loss to the extent that a specific accrual or reserve for the amount of such Loss was included in the calculation of Final Working Capital (as finally determined pursuant to Section 2.9); and (v) the maximum aggregate amount of indemnifiable Losses relating to any punitive, incidental, consequential, special or indirect damages, including business interruption, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available an amount equal to a party in seeking a remedy hereunder)$5,720,000; and provided, however, that clauses (ivi)-(iii) in no event and (v) of this Section 8.5(b) shall the Seller be liable not apply to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation extent arising out of or conduct resulting from any Excluded Liability or to the extent arising out of a breach of the Business representation and warranty in Section 3.16(c) or the Transferred Assets for any Post-Closing Tax PeriodFundamental Representation. (c) The amount For all purposes of this Article VIII, “Losses” shall be net of any and all Losses under this Article VII shall be determined net of (i) any Tax benefit actually realized insurance or other recoveries received by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable recoveries to the Indemnified Party or its Affiliates (net of any out-of-pocket costs and expenses incurred by the Indemnified Party in obtaining such recoveries) in connection with the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VIIindemnification. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against All Indemnifiable Costs sought by any party hereunder shall be net of any insurance proceeds received by such Person with respect to such claim (less the present value of any premium increases occurring as a result of such claim). Except for (i) any claims for breach of any representationthe representations, warranty warranties and covenants of the Company and Mill▇▇ ▇▇▇er SECTIONS 3.11 or covenant contained herein3.14, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim hereof (to the extent known) on or for which indemnification claims must be made prior to the expiration of the applicable statute of limitations and if so made, such claims shall continue after such date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be $185,000,000 (the “Cap”); provided that the Cap shall not be applicable in respect of ii) any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any claims for breach of the representations representations, warranties and covenants of the Company and Mill▇▇ ▇▇▇er SECTION 3.3 (for which indemnification claims must be made at any time after the Closing) or (iii) any claims for breach of the representations, warranties set forth in or covenants of the last sentence of Section 3.14(d) Company and Section 3.15 Mill▇▇ ▇▇▇er ARTICLE VI (together with all other recoveries for breaches of representations and warranties subject which indemnification claims must be made prior to the Cap) expiration of the time periods contained therein), the right to make claims for indemnification provided under this ARTICLE VIII shall be $277,500,000; expire on the third anniversary of the Closing Date (ii) the Seller except for claims made prior to such date which shall continue after such date until finally resolved). The Company and Mill▇▇ ▇▇▇ll not be obligated to pay any amounts for indemnification under this ARTICLE VIII until the aggregate indemnification obligation sought by Buyer hereunder exceeds $100,000, whereupon the Company and Mill▇▇ ▇▇▇ll be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), and the for all amounts for which indemnification may be sought. Buyer shall not be liable obligated to pay any Seller Indemnified Party pursuant to Section 7.3(a), for any claim amounts for indemnification (x) unless and under this ARTICLE VIII until the aggregate amount of indemnifiable Losses that may be recovered from indemnification obligation sought by the Seller Company or the Buyer, as applicable, equals or Mill▇▇ ▇▇▇eunder exceeds $18,500,000 (the “Basket Amount”)100,000, in which case the Seller or the Buyer, as applicable, whereupon Buyer shall be liable only for the Losses all amounts for which indemnification may be sought. For purposes of SECTIONS 8.1 or 8.5, any requirement in excess of the Basket Amount any representation or (y) warranty that an event or fact be material or have a Material Adverse Effect, as appropriate, in respect of any claim that results in Losses of less than $50,000; provided that the foregoing limitations in clauses (x) and (y) shall not be applicable in respect of any order for such event or fact to constitute a misrepresentation or breach of a Fundamental Representation such representation or any breach of warranty shall be ignored. Notwithstanding the representations and warranties set forth in the last sentence of Section 3.14(d); and providedforegoing, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII; (iii) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any aggregate liability of the Company and Mill▇▇ ▇▇ Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable Buyer to the operation Company and Mill▇▇ ▇▇▇eed the Purchase Price and, (ii) in no event shall the aggregate liability of the Company or Mill▇▇ ▇▇ Buyer for a breach of SECTION 3.21 (Year 2000) exceed $2,500,000 (absent gross negligence or willful misconduct, in which case only the liability cap in subclause (i) above shall apply). However nothing in this ARTICLE VIII shall limit Buyer, the Company or Mill▇▇ ▇▇ exercising or securing any remedies provided by applicable statutory or common law with respect to the conduct of the Business or the Transferred Assets for any Post-Closing Tax Period. (c) The amount of any and all Losses under this Article VII shall be determined net of (i) any Tax benefit actually realized by the applicable Indemnified Party or its Affiliates arising Company, Mill▇▇ ▇▇ Buyer in connection with this Agreement or in the accrual, incurrence amount of damages that it can recover from the other in the event that Buyer successfully proves intentional fraud or payment of any such Losses, and (ii) any insurance proceeds payable recoveries to the Indemnified Party or its Affiliates intentional fraudulent conduct in connection with this Agreement. All Indemnifiable Costs paid by the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums Company or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall Mill▇▇ ▇▇▇ll be deemed to recognize all other items be a reduction of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided Purchase Price paid by Buyer under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VIIAgreement. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against any either party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect party pursuant to the subject matter of such claim (to the extent known) terms hereof on or prior to the date on which the representation, warranty or covenant on upon which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a)Parties, or from the Buyer by the Seller Indemnified Parties Parties, pursuant to Section 7.3(a)7.2 or Section 7.3, respectively, shall be $185,000,000 in each case an amount equal to fifteen percent (15%) of the “Cap”); provided Purchase Price, provided, that the Cap provisions of this Section 7.5(b)(i) shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that limit the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant recoverable with respect to Section 7.2(a) in respect of any breach of or failure to perform, carry out, satisfy or discharge any covenant or agreement by the representations Seller, the Company and/or the Buyer, as applicable, contained in Sections 6.1, 6.5, 6.6, 6.9, 6.10, 6.11, 6.12, 6.13, 6.15, 6.17, 6.19, 6.20 and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,0006.22; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a)Party, and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a)Party, for any claim for indemnification (x) pursuant to Section 7.2 or Section 7.3, respectively, unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller or the Buyer, as applicablerespectively, in each case equals or exceeds $18,500,000 (1,500,000, and the “Basket Amount”)Seller, in which case on the Seller or one hand, and the Buyer, as applicableon the other hand, shall be liable only for the Losses in excess of the Basket Amount or (y) in respect of any claim that results in Losses of less than $50,000; provided such amount, provided, that the foregoing limitations in clauses (x) and (yprovisions of this Section 7.5(b)(ii) shall not be applicable in limit the maximum aggregate amount of indemnifiable Losses recoverable with respect of to any breach of a Fundamental Representation or failure to perform, carry out, satisfy or discharge any breach of covenant or agreement by the representations Seller, the Company and/or the Buyer, as applicable, contained in Sections 6.1, 6.5, 6.6, 6.9, 6.10, 6.11, 6.12, 6.13, 6.15, 6.17, 6.19, 6.20 and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII6.22; (iii) the Seller shall not be obligated to indemnify any Buyer Indemnified Party with respect to any Loss pursuant to Section 7.2 to the extent that a specific accrual or reserve for the amount of such Loss was reflected as a Current Liability on the Closing Statement; (iv) the right to indemnification or any other remedy in favor of the Buyer Indemnified Parties based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreement shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) prior to the execution and delivery of this Agreement; and (v) except with respect to Third Party Claims, no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax PeriodAgreement. (c) The amount For all purposes of any and all Losses under this Article VII VII, "Losses" shall be determined net of (i) any Tax benefit insurance or other recoveries actually realized by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable recoveries paid to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification and (less ii) any related costs and expensesTax benefit arising in connection with the accrual, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VIIsuch Losses, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) but only to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable Tax benefit is actually realized by such Indemnified Party or its Affiliates in the taxable period of such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the accrual, incurrence or payment of such Losses for which indemnification Loss, as applicable, determined by assuming that such Tax benefit is provided under this Article VIIusable in such period only on a last-used basis, considering all other available Tax benefits. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No Except with respect to a Tax Claim, no claim may be asserted against any party either Party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such partyParty, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.111.1 (Survival), in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer all Purchaser Indemnified Parties pursuant to Section 7.2(a), or from the Buyer 11.2(a) (Indemnification by the Seller Indemnified Parties pursuant to Section 7.3(a), Seller) shall be $185,000,000 U.S.$180,000,000 (the “Cap”); provided provided, however, that the Cap shall not be applicable in respect of any apply to indemnifiable Losses incurred by a Purchaser Indemnified Party that arise from (A) a breach or inaccuracy of a Fundamental RepresentationCore Representation or (B) fraud of Seller (to the extent determined by a final judgment not subject to appeal by a court of competent jurisdiction) (such Losses as set forth in clauses (A) and (B), “Seller Special Losses”). The maximum aggregate liability of Seller for any indemnification claims (arising from Seller Special Losses or otherwise) under this Section 11.6 shall not exceed the Purchase Price; provided, furtherhowever, that there shall be no maximum liability for Losses incurred as a result of fraud of Seller (to the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller extent determined by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties a final judgment not subject to the Cap) shall be $277,500,000appeal by a court of competent jurisdiction); (ii) the Seller shall not be liable to any Buyer Purchaser Indemnified Party pursuant to Section 7.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification pursuant to Section 11.2(a) (xIndemnification by Seller) unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller or the Buyer, as applicable, equals or exceeds $18,500,000 U.S.$18,000,000 (the “Basket Deductible Amount”), in which case the Seller or the Buyer, as applicable, shall be liable only for the Losses in excess of the Basket Amount Deductible Amount; provided, however, that in any event no Losses may be claimed by any Purchaser Indemnified Party or shall be reimbursable by Seller or shall be included in calculating the aggregate Losses for purposes of this clause (yii) other than Losses in excess of (A) U.S.$250,000 in respect of any claim that results in Losses for indemnification pursuant to Section 11.2(a) (Indemnification by Seller) as a result of less than $50,000; provided that the foregoing limitations in clauses breach of Section 4.12 (xLitigation) and (yB) shall not be applicable U.S.$100,000 (the “Minimum Loss Amount”) in respect of all other cases, in each case, resulting from any breach of a Fundamental Representation single claim or any breach aggregated claims arising out of the representations and warranties set forth in the last sentence of Section 3.14(d)same facts, events or circumstances; and provided, further, that in no event neither the Deductible Amount nor the Minimum Loss Amount shall there be duplication of payments with respect apply as a threshold to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VIIfor Seller Special Losses or for any Losses described in Section 11.4 (Indemnification for Taxes); (iii) the maximum aggregate amount of indemnifiable Losses that may be recovered from Purchaser by all Seller Indemnified Parties pursuant to Section 11.3(a) (Indemnification by Purchaser) shall be the Cap; provided, however, that the Cap shall not apply to indemnifiable Losses incurred by a Seller Indemnified Party that arise from (A) a breach or inaccuracy of Section 5.1 (Organization), Section 5.2 (Authorization), Section 5.3 (Execution; Validity of Agreement), Section 5.7 (Brokers or Finders) or (B) fraud of Purchaser (to the extent determined by a final judgment not subject to appeal by a court of competent jurisdiction) (such Losses as set forth in clauses (A) and (B), “Purchaser Special Losses”). The maximum aggregate liability of Purchaser for any indemnification claims (arising from Purchaser Special Losses or otherwise) under this Section 11.6 shall not exceed the Purchase Price, provided, however, that there shall be no party hereto maximum liability for Losses incurred as a result of fraud of Purchaser (to the extent determined by a final judgment not subject to appeal by a court of competent jurisdiction); (iv) Purchaser shall not be liable to any Seller Indemnified Party for any claim for indemnification pursuant to Section 11.3(a) (Indemnification by Purchaser) unless and until the aggregate amount of indemnifiable Losses that may be recovered from Purchaser equals or exceeds the Deductible Amount, in which case Purchaser shall be liable only for the Losses in excess of the Deductible Amount; provided, however, that in any event no Losses for a claim under Section 11.3(a) (Indemnification by Purchaser) may be claimed by any Seller Indemnified Party or shall be reimbursable by Purchaser or shall be included in calculating the aggregate Losses for purposes of this clause (iv) other than Losses in excess of the Minimum Loss Amount resulting from any single claim or aggregated claims arising out of the same facts, events or circumstances; and provided, further, that neither the Deductible Amount nor the Minimum Loss Amount shall apply as a threshold to any indemnification claims for Purchaser Special Losses; (v) no Party shall have any liability Liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenuerevenue whether or not expected, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (Agreement, except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations that such damages are specifically included in Third Party Claims and warranties set forth result in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder)Losses; and (ivvi) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability under this Section 11.6 by any Party shall be bona fide and made in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax Periodgood faith. (c) The amount For all purposes of this Section 11.6 (and for the avoidance of doubt, for all purposes of Section 11.4 (Indemnification for Taxes)), “Losses” shall be net of any and all Losses under this Article VII shall be determined net of (i) any Tax benefit insurance or other recoveries actually realized received by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable recoveries to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification and (less ii) any related costs and expenses, including Tax Benefit realized by the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from Affiliates in connection with the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) facts giving rise to the extent that, with respect to any taxable period right of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VIIindemnification. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, representation or warranty or covenant contained hereinin this Agreement, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to May 30, 2007 (the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1“Claim Deadline”), in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. Notwithstanding the foregoing, there shall be no Claims Deadline applicable to a claim raised with respect to a breach of Sections 5.2, 5.3(a)-(e), 7.4 and 7.11 hereof. In addition, no claim may be asserted against Seller for breach of any of Seller’s representations or warranties to the extent that the Title Materials contain information that is inconsistent with such representations or warranties. (b) Notwithstanding anything to the contrary contained in this Agreement: , with respect to each Fee Property, Target, Leasehold Interest or Minority Owned Entity: (i) the maximum aggregate amount Seller shall not be liable for any claim for indemnification of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties $5,000 or less pursuant to Section 7.2(aSections 10.2(a), 10.2(b), or 10.2(c) resulting from any single claim or aggregated claims arising out of the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a)same facts, shall be $185,000,000 events or circumstances (the “CapDe Minimis Amount”); provided that the Cap shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification (x) unless and until the aggregate amount of indemnifiable Losses that which may be recovered from the Seller or the Buyer, as applicable, on account of all such claims equals or exceeds $18,500,000 50,000 (the “Basket Threshold Amount”), in at which case time the Seller or the Buyer, as applicable, shall be liable only for all such Losses, (iii) the maximum aggregate amount of indemnifiable Losses which may be recovered by the Buyer Indemnified Parties arising out of or relating to the causes set forth in excess Sections 10.2(a), 10.2(b) or 10.2(c) in relation to any single Fee Property, Target, Leasehold Interest or Minority Owned Entity shall equal 50% of the Basket Amount or (y) Preliminary Allocated Price in respect of any claim that results in Losses of less than $50,000; provided such Fee Property, Target, Leasehold Interest or Minority Owned Entity, as the case may be (the “Indemnification Limit”), provided, however, that the foregoing limitations in clauses (x) and (y) shall not maximum aggregate amount of identifiable Losses which may be applicable in respect of any breach of a Fundamental Representation or any breach of recovered by the representations and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments Buyer Indemnified Parties with respect to items considered as part of any Inventory adjustment under Section 2.3 the Leasehold Interest in Renaissance Atlanta Hotel Downtown is $4,000,000 and amounts paid with respect to indemnification claims under this Article VII; Renaissance PineIsle Resort and Golf Club is $3,000,000, and (iiiiv) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplaryincidental, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity damages relating to the breach or alleged breach of this Agreement (except (i) to Agreement. Notwithstanding the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property Licenseforegoing, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax Period. (c) The amount of any and all Losses under this Article VII shall be determined net of (i) any Tax benefit actually realized by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable recoveries to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year Indemnification Limit applicable to Losses related to a breach of a representation, warranty or covenant under Sections 5.2 and 5.3(a)-(e) shall be the indemnified Loss, Preliminary Allocated Price of each Target and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VII. (d) The Buyer De Minimis Amount and the Seller Threshold Amount shall cooperate with each other with respect not be applicable to resolving any claimLosses related to a breach of a representation, liability warranty or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery covenant under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunderSections 5.13(b)(iv).

Limits on Indemnification. (a) No Notwithstanding anything to the contrary contained in this Agreement, (a) the Sellers shall not be liable to any Purchaser Indemnified Party for any claim for indemnification pursuant to Section 8.02(a)(i) and Section 8.02(a)(iii), unless and until the aggregate amount of indemnifiable Losses which may be asserted against any party recovered by the Purchaser Indemnified Party under this Agreement (together with the amount of indemnifiable Losses which may be recovered by the Purchaser Indemnified Party under the BIT Agreement) equals or exceeds $300,000 (the “Basket”), after which the Sellers shall be liable only for breach those Losses under Section 8.02(a)(i) and Section 8.02(a)(iii) of any representationthis Agreement and Section 7.02(a)(i) and Section 7.02(a)(iii) of the BIT Agreement in excess of the Basket, warranty or covenant contained hereinand (b) the maximum amount of indemnifiable Losses which may be recovered by the Purchaser Indemnified Parties pursuant to Section 8.02(a)(i) and Section 8.02(a)(iii) of this Agreement and Section 7.02(a)(i) and Section 7.02(a)(iii) of the BIT Agreement, unless written notice of such claim is received by such partyas applicable, describing shall be $5,000,0000 (the “Cap”). Notwithstanding the foregoing, the Basket and the Cap limitations set forth in reasonable detail the facts and circumstances this Section 8.04 shall not apply with respect to the subject matter of such claim (to the extent known) on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolvedTax matters. (b) Notwithstanding anything to the contrary contained in this Agreement: , (ia) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be $185,000,000 (the “Cap”); provided that the Cap shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), Parent and the Buyer Purchaser shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification (x) pursuant to Section 8.03(a)(i), unless and until the aggregate amount of indemnifiable Losses that which may be recovered from by the Seller or Indemnified Party under this Agreement (together with the Buyer, as applicable, amount of indemnifiable Losses which may be recovered by the Seller Indemnified Party under the BIT Agreement) equals or exceeds $18,500,000 (the “Basket Amount”)Basket, in after which case the Seller or Parent and the Buyer, as applicable, Purchaser shall be liable only for those Losses under Section 8.03(a)(i) of this Agreement and Section 7.03(a)(i) of the Losses BIT Agreement in excess of the Basket Amount or (y) in respect of any claim that results in Losses of less than $50,000; provided that the foregoing limitations in clauses (x) Basket, and (yb) shall not the maximum amount of indemnifiable Losses which may be applicable in respect of any breach of a Fundamental Representation or any breach of recovered by the representations and warranties set forth in the last sentence of Seller Indemnified Parties pursuant to Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII; (iii8.03(a)(i) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution and Section 7.03(a)(i) of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this BIT Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax PeriodCap. (c) The amount of any and all Losses Notwithstanding Section 8.02 or Section 8.03, no Indemnified Party shall be entitled to indemnification under this Article VII shall be determined net of (i) any Tax benefit actually realized by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable recoveries to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have VIII with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing amounts taken into consideration in computing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) adjustment to the extent that, with respect Purchase Price pursuant to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VIISection 2.06. (d) The Buyer remedies provided in Section 6.01 and this Article VIII shall constitute the exclusive remedies of the parties hereto at law following the Closing for any breach of a representation, warranty or covenant contained in this Agreement or any other Acquisition Document and the Seller shall cooperate with each parties hereto waive any other remedy which they or any other person entitled to be indemnified pursuant to Section 6.01 or this Article VIII may have at law with respect to resolving any claimbreach of any such representation, liability warranty or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereundercovenant.

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.18.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement:, other than with respect to Tax Losses (which shall be governed exclusively by Section 8.4): (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller PBI by the Buyer Indemnified Parties pursuant to Section 7.2(a8.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a8.3(a), shall be $185,000,000 27,500,000 (the “Cap”); provided that the Cap shall not be applicable in respect apply (A) to indemnification obligations to the extent arising out of any a breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(aRepresentation or (B) in respect the case of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000fraud; (ii) the Seller PBI shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a8.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a8.3(a), for any claim for indemnification (x) unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller PBI or the Buyer, as applicable, equals or exceeds $18,500,000 3,000,000 (the “Basket Amount”), in which case the Seller PBI or the Buyer, as applicable, shall be liable only for the Losses in excess of the Basket Amount or (y) in respect of any claim that results in Losses of less than $50,000Amount; provided that the foregoing limitations in clauses (x) and (y) Basket Amount shall not be applicable in respect apply (A) to indemnification obligations to the extent arising out of any a breach of a Fundamental Representation or any breach of the representations and warranties set forth (B) in the last sentence case of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VIIfraud; (iii) no party hereto shall have any liability Liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (iAgreement; provided, that the limitation in this Section 8.6(b)(iii) shall not apply to the extent such damages are actually awarded to a Governmental Authority or other recovered by third party or (ii) parties in connection with Losses indemnified under this Agreement in respect to breaches of (x) any claims arising from the breach of the representations and warranties set forth contained in Section 3.15 (related to intellectual property4.6(a) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder)and Section 4.23; and (iv) in no event the amount of any Loss arising from a breach of a representation, warranty, covenant or agreement shall the Seller be liable determined without regard to any limitation or qualification as to materiality, Material Adverse Effect or Buyer Indemnified Party pursuant to Section 7.2 Material Adverse Effect or otherwise dollar thresholds set forth in such representation, warranty, covenant or agreement; provided, that such limitations and qualifications shall not be disregarded for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax Perioddetermining whether a breach has occurred. (c) The amount of any and all Losses under this Article VII VIII (other than with respect to Tax Losses, which shall be governed exclusively by Section 8.4) shall be determined net of (i) any Tax benefit actually realized by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable or other recoveries to actually recovered by the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification indemnification, net of any actual costs or expenses (less including any increase in premiums directly related costs and expenses, including the aggregate cost of pursuing any related to such insurance claims and any related increases recovery) incurred in insurance premiums connection with obtaining such proceeds or other chargebacks)recoveries. Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VII. (d) The Buyer and the Seller PBI shall cooperate with each other with respect to resolving any claim, liability Liability or Loss for which indemnification may be required hereunder, including by making, or causing the applicable Indemnified Party to make, all reasonable efforts to mitigate any such claim, Liability or Loss. The Without limiting the generality of the foregoing, the Buyer and the Seller PBI shall, or shall cause the applicable Indemnified Party to to, use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: (ia) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties No indemnification pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), this ARTICLE IV shall be $185,000,000 made (the “Cap”); provided that the Cap shall not be applicable other than indemnification in respect of any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties matters set forth in the last sentence of Section 3.14(d4.01(a)(iii) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a4.01(a)(iv), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification (x) unless and until the aggregate amount of indemnifiable Indemnified Losses that may be recovered from incurred by the Seller or the Buyer, as applicable, equals or exceeds $18,500,000 Indemnified Parties hereunder (the “Basket Amount”), in which case the Seller or the Buyer, as applicable, shall be liable only for the excluding such Indemnified Losses in excess of the Basket Amount or (y) incurred in respect of any claim that results in Losses of less than $50,000; provided that the foregoing limitations in clauses (x) and (y) shall not be applicable in respect of any breach of a Fundamental Representation or any breach of the representations and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII; (iii) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties matters set forth in Section 3.15 4.01(a)(iii) and Section 4.01(a)(iv)) exceeds Two Hundred Thousand United States Dollars (related US $200,000) (the “Threshold Amount”); provided, however, that if the aggregate amount of all Indemnified Losses exceeds the Threshold Amount, then, subject to intellectual propertySection 4.08, the entire amount of all Indemnified Losses shall be recoverable by the Indemnified Parties. (b) No Indemnified Party may make a claim for indemnification under Section 4.02 for breach by the Indemnifying Party of a particular representation or (y) any covenant or agreement contained warranty after the expiration of the applicable survival period set forth in the Intellectual Property LicenseSection 2.26 or, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party Claims made pursuant to Section 7.2 or otherwise for 4.01(a)(iii) after January 31, 2013; provided that any claim for indemnification for arising in connection with any Claim Notice delivered on or other Liability in respect of Taxes attributable prior to the operation or conduct expiration of the Business or applicable survival period shall survive for the Transferred Assets for any Post-Closing Tax Periodbenefit of all Indemnified Parties beyond the expiration of the applicable survival period until such claim is finally resolved. (c) The amount of any and all Losses indemnification payable under this Article VII ARTICLE IV with respect to any Loss shall be determined reduced by the net amount of any insurance proceeds, indemnity payments, contributions or similar payment actually received by any Indemnified Party with respect to such Loss (calculated net of any expense incurred in collecting such amount and the net present value of any increase in applicable insurance premiums incurred as a result of the claim that resulted in such recovery). To the extent any Indemnified Party receives (i) any Tax benefit actually realized by such amount from insurers or other third parties, such insurers or other third parties may, notwithstanding the applicable prior sentence, be subrogated to the rights of the Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, hereunder and (ii) any insurance proceeds payable recoveries to such amount from insurers or other third parties after the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may Parties have with respect to any indemnifiable Losses. For this purpose, (i) been indemnified for the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from shall repay to the Rights Holders and Closing Date, Cash Bonus Participants promptly any amount that the amount of Taxes payable by such Indemnified Indemnifying Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would not have been required had to pay but for pursuant to this Section 4.02 had the incurrence or payment of Indemnified Parties received such Losses for which indemnification is provided under this Article VIIamount prior to being indemnified hereunder. (d) The Buyer and Indemnified Parties shall not be entitled to indemnification for any Losses resulting from, arising out of or related to the Seller shall cooperate with each other with respect to resolving any claimIP Transfer, liability or unless such Losses would nonetheless have been incurred had the Merger occurred without the prior occurrence of the IP Transfer. (e) Each Loss for which any Indemnified Party is entitled to indemnification may under this ARTICLE IV shall be required hereunder. The Buyer determined without duplication of recovery by reason of the state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement and in giving rise to indemnification under Section 4.01. (f) No Indemnified Party shall be entitled to indemnification under this ARTICLE IV for any Losses (and the Seller amount of any Losses incurred shall cause not be included in the applicable calculation of any limitations on indemnification set forth herein) to the extent such Losses were previously reflected in the calculation of Indebtedness and/or Expenses. (g) Notwithstanding anything to the contrary herein, the rights and remedies of the Indemnified Parties after the Closing shall not be limited by the fact that any Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering had knowledge of any Loss breach, event or circumstance prior to the same extent as they would if such Loss were not subject Closing or waived any condition to indemnification hereunderthe Closing related thereto.

Limits on Indemnification. (a) No claim may be asserted against any either party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect party pursuant to the subject matter of such claim (to the extent known) terms hereof on or prior to the date on which the representation, warranty or covenant on upon which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a)Parties, or from the Buyer by the Seller Indemnified Parties Parties, pursuant to Section 7.3(a)7.2 or Section 7.3, respectively, shall be $185,000,000 in each case an amount equal to fifteen percent (15%) of the “Cap”); provided Purchase Price, provided, that the Cap provisions of this Section 7.5(b)(i) shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that limit the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant recoverable with respect to Section 7.2(a) in respect of any breach of or failure to perform, carry out, satisfy or discharge any covenant or agreement by the representations Seller, the Company and/or the Buyer, as applicable, contained in Sections 6.1, 6.5, 6.6, 6.9, 6.10, 6.11, 6.12, 6.13, 6.15, 6.17, 6.19, 6.20 and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,0006.22; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a)Party, and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a)Party, for any claim for indemnification (x) pursuant to Section 7.2 or Section 7.3, respectively, unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller or the Buyer, as applicablerespectively, in each case equals or exceeds $18,500,000 (1,500,000, and the “Basket Amount”)Seller, in which case on the Seller or one hand, and the Buyer, as applicableon the other hand, shall be liable only for the Losses in excess of the Basket Amount or (y) in respect of any claim that results in Losses of less than $50,000; provided such amount, provided, that the foregoing limitations in clauses (x) and (yprovisions of this Section 7.5(b)(ii) shall not be applicable in limit the maximum aggregate amount of indemnifiable Losses recoverable with respect of to any breach of a Fundamental Representation or failure to perform, carry out, satisfy or discharge any breach of covenant or agreement by the representations Seller, the Company and/or the Buyer, as applicable, contained in Sections 6.1, 6.5, 6.6, 6.9, 6.10, 6.11, 6.12, 6.13, 6.15, 6.17, 6.19, 6.20 and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII6.22; (iii) the Seller shall not be obligated to indemnify any Buyer Indemnified Party with respect to any Loss pursuant to Section 7.2 to the extent that a specific accrual or reserve for the amount of such Loss was reflected as a Current Liability on the Closing Statement; (iv) the right to indemnification or any other remedy in favor of the Buyer Indemnified Parties based on representations, warranties, covenants and agreements in this Agreement or any Ancillary Agreement shall not be affected by any investigation conducted at any time, or any knowledge acquired (or capable of being acquired) prior to the execution and delivery of this Agreement; and (v) except with respect to Third Party Claims, no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax PeriodAgreement. (c) The amount For all purposes of any and all Losses under this Article VII VII, “Losses” shall be determined net of (i) any Tax benefit insurance or other recoveries actually realized by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and (ii) any insurance proceeds payable recoveries paid to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification and (less ii) any related costs and expensesTax benefit arising in connection with the accrual, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VIIsuch Losses, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) but only to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable Tax benefit is actually realized by such Indemnified Party or its Affiliates in the taxable period of such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the accrual, incurrence or payment of such Losses for which indemnification Loss, as applicable, determined by assuming that such Tax benefit is provided under this Article VIIusable in such period only on a last-used basis, considering all other available Tax benefits. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: : (ia) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be $185,000,000 (the “Cap”); provided that the Cap an Indemnifying Party shall not be applicable in respect of liable for any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties claim for indemnification pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to or Section 7.3(a), for any claim for indemnification (x) as the case may be, unless and until the aggregate amount of indemnifiable Losses that which may be recovered from the Seller or the Buyer, as applicable, Indemnifying Party equals or exceeds $18,500,000 (the “Basket Amount”)1,000,000, in which case the Seller or the Buyer, as applicable, Indemnifying Party shall be liable only for the full amount of such Losses in excess from the first dollar thereof, (b) the maximum aggregate amount of the Basket Amount indemnifiable Losses which may be recovered from an Indemnified Party arising out of or (y) in respect of any claim that results in Losses of less than $50,000; provided that the foregoing limitations in clauses (x) and (y) shall not be applicable in respect of any breach of a Fundamental Representation or any breach of the representations and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII; (iii) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties causes set forth in Section 3.15 (related to intellectual property7.2(a) or Section 7.3(a), as the case may be, shall be an amount equal to $9,300,000 provided, that the foregoing clauses (ya) and (b) shall not apply to Losses arising out of or relating to the inaccuracy or breach of any covenant Core Representation or agreement contained of Sections 3.10, or 3.15, to any representation or warranty in the Intellectual Property Licenseevent of fraud, willful misconduct or intentional misrepresentation, or with respect to payments made, not later than October 11, 2014, by the Acquiror or the Surviving Corporation in respect of the Indebtedness of the LallyMix in excess of one half of the amount of the Indebtedness of LallyMix on the Closing Date, all of which shall be indemnified in full. The Indemnified Party may not make a claim for indemnification under Section 7.2(a) or Section 7.3(a), as the case may be, for breach by the Indemnifying Party of a particular representation or warranty after the expiration of the survival period thereof specified in Section 7.1, except as otherwise provided in Section 7.1 or, with respect to which consequential damages that are reasonably foreseeable shall be available to a party the LallyMix indemnity, the three year period provided in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to this Section 7.2 or otherwise for any claim for indemnification for or other Liability in 7.5. With respect of Taxes attributable to the operation or conduct Stockholders as an Indemnifying Party, it is the intent of the Business or parties that the Transferred Assets for any Post-Closing Tax Period. (c) The $1,000,000 basket amount of any and all Losses under this Article VII $9,300,000 cap amount shall be determined net of (i) any Tax benefit actually realized by apply to the applicable Indemnified Party or its Affiliates arising Stockholders in connection with the accrual, incurrence or payment of any such Lossesaggregate, and (ii) any insurance proceeds payable recoveries not to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VIIeach individually. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, warranty or covenant contained herein, unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. (b) Notwithstanding anything to the contrary contained in this Agreement: (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be Fifteen Million, Five Hundred Thousand Dollars ($185,000,000 15,500,000) (the “Cap”); provided that the Cap shall not be applicable apply in respect of any breach Losses resulting (A) from breaches of a Fundamental Representation; providedRepresentations, further(B) from breaches of covenants in this Agreement or (C) in the event of fraud in this Agreement, that in which case the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000the Purchase Price; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a)Party, and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a)Party, for any claim for indemnification (xpursuant to Section 7.2(a) or Section 7.3(a) unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller or the Buyer, as applicable, equals or exceeds Three Million, One Hundred Thousand Dollars ($18,500,000 3,100,000) (the “Basket Amount”), in which case the Seller or the Buyer, as applicable, shall be liable only for the Losses in excess of the Basket Amount or (y) in respect of any claim that results in Losses of less than $50,000Amount; provided that the foregoing limitations in clauses (x) and (y) Basket Amount shall not be applicable apply in respect of any breach Losses resulting (A) from breaches of a Fundamental Representation Representations, (B) from breaches of covenants in this Agreement or any breach of the representations and warranties set forth (C) in the last sentence event of Section 3.14(d); and provided, further, that fraud in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VIIAgreement; (iii) the Seller shall not be obligated to indemnify any Buyer Indemnified Party with respect to any Loss to the extent that the Buyer received a benefit from the reflection of such matter in the calculation of the adjustment of the Purchase Price, if any, as finally determined pursuant to Section 2.3; and (iv) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplary, special or indirect exemplary damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to damages that do not arise directly and naturally from the breach or alleged breach of this Agreement (or damages that are not a reasonably foreseeable result of a breach of this Agreement, except (i) to the extent actually such damages are awarded to in connection with a Governmental Authority or other third party or (ii) with respect to breaches of (x) the representations and warranties set forth in Section 3.15 (related to intellectual property) or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Third Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax PeriodClaim. (cb) The amount of any and all Losses under this Article VII shall be determined net of (i) after taking into account any Tax benefit actually realized by the applicable Indemnified Party or its Affiliates arising Benefits as described in connection with the accrual, incurrence or payment of any such Losses, Section 5.14 and (ii) net of any insurance proceeds payable recoveries to actually recovered by the Indemnified Party or its Affiliates in connection with on account of such Loss (net of the facts giving rise to the right costs of indemnification (less any related costs and expensesobtaining such insurance proceeds, including the aggregate cost of pursuing any related insurance claims and any related increases deductible or increase in insurance premiums or other chargebackspremiums). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose. (c) The Buyer and Seller shall, (i) or shall cause the applicable Indemnified Party or its Affiliate shall be deemed to recognize to, mitigate all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss Losses for which indemnification is provided under this Article VII, and (ii) the applicable such Indemnified Party is or its Affiliate shall may be deemed entitled to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) indemnification hereunder to the extent that, required by Delaware Law in connection with respect to any taxable period a breach of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VII. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereundercontract. The Buyer and the Seller shall, or shall cause the applicable Indemnified Party to to, use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, representation or warranty or covenant contained hereinin this Agreement, unless written notice of such claim is received by such party, party describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to May 30, 2007 (the date on which the representation, warranty or covenant on which such claim is based ceases to survive as set forth in Section 7.1, “Claim Deadline”) in which case such representation, warranty or covenant shall survive as to such claim until such claim has been finally resolved. Notwithstanding the foregoing, there shall be no Claims Deadline applicable to a claim raised with respect to a breach of Sections 5.2, 5.3(a)-(e), 5.2A, 5.3A, 7.4 and 7.11 hereof. In addition, no claim may be asserted against Marriott for breach of any of CTF’s or Marriott’s representations or warranties to the extent that (i) the Title Materials, or (ii) the reports of the Structural and Environmental Consultants contain information that is inconsistent with such representations or warranties. (b) Notwithstanding anything to the contrary contained in this Agreement: , with respect to each Fee Property, Target or Leasehold Interest: (i) the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be $185,000,000 (the “Cap”); provided that the Cap shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller Marriott shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification of $5,000.00 or less pursuant to Section 10.1(a), 10.1(b), or 10.3 resulting from any single claim or aggregated claims arising out of the same facts, events or circumstances (xthe “De Minimus Amount”), (ii) Marriott shall not be liable unless and until the aggregate amount of indemnifiable Losses that which may be recovered from the Seller or the Buyer, as applicable, Marriott on account of all claims equals or exceeds $18,500,000 50,000 (the “Basket Threshold Amount”), in at which case the Seller or the Buyer, as applicable, time Marriott shall be liable only for all such Losses, (iii) the maximum aggregate amount of indemnifiable Losses which may be recovered by Purchaser Indemnified Parties arising out of or relating to the causes set forth in excess Section 10.3(a), 10.3(b), 10.3(c) or 10.3(d) in relation to any single Fee Property, Target or Leasehold Interest shall equal fifty percent (50%) of the Basket Amount or (y) Preliminary Allocated Price in respect of any claim that results in Losses of less than $50,000; provided that such Fee Property, Target or Leasehold Interest, as the foregoing limitations in clauses case may be (x) and the “Indemnification Limit”), (y) shall not be applicable in respect of any breach of a Fundamental Representation or any breach of the representations and warranties set forth in the last sentence of Section 3.14(d); and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII; (iiiiv) no party hereto shall have any liability under any provision of this Agreement for any punitive, incidental, consequential, exemplaryincidental, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement Agreement. Notwithstanding the foregoing, (except (iA) the Indemnification Limit applicable to the extent actually awarded Losses related to a Governmental Authority breach of a representation, warranty or other third party or covenant under Sections 5.2, 5.3(a)-(e), 5.2A and 5.3A shall be the Preliminary Allocated Price of each Target and (ii) with respect to breaches of (xB) the representations De Minimus Amount and warranties set forth in Section 3.15 (the Threshold Amount shall not be applicable to Losses related to intellectual property) a breach of a representation, warranty or (y) any covenant or agreement contained in the Intellectual Property License, with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunderunder Section 5.13(b)(iv); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax Period. (c) The amount For all purposes of any and all Losses under this Article VII 10, “Losses” shall be determined net of (i) any insurance (other than any self-insured retention program) or other recoveries paid (subject to Section 10.8) by a third-party to the Indemnified Party or its Affiliates in connection with the facts, events or circumstances giving rise to the right of indemnification and (ii) any net Tax benefit actually realized by the applicable available to such Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment of any such Losses, and Losses (ii) any insurance proceeds payable recoveries to the Indemnified Party or its Affiliates in connection with the facts giving rise to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate shall be deemed to recognize all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment net present value of any indemnified Loss for which indemnification is provided under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized arising in the year of the indemnified Loss, and (B) to the extent that, with respect to any subsequent taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VIIyears). (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.

Limits on Indemnification. (a) No claim may be asserted against any party for breach of any representation, warranty or covenant contained herein, indemnification hereunder unless written notice of such claim is received by such party, describing in reasonable detail the facts and circumstances with respect to the subject matter of such claim (to the extent known) on or prior to the date on which applicable Survival Date. If a written notice has been delivered prior to the representationexpiration of the applicable Survival Date with respect to any such matter but the claim has not yet been resolved as of the expiration of the applicable Survival Date, warranty or covenant on which then such claim is based ceases to survive as set forth in Section 7.1, in which case such representation, warranty or covenant indemnification obligation shall survive as to (but only in respect of such claim claim) until such claim has been finally resolved.resolved as provided in Section 9.4 (b) Notwithstanding anything to the contrary contained in this Agreement: , but subject to Section 9.6: (i) the maximum aggregate amount no amounts of indemnifiable Losses that may indemnity shall be recovered from the Seller by payable as a result of any claim arising under Section 9.2 unless and until the Buyer Indemnified Parties pursuant have suffered, incurred, sustained or become subject to Section 7.2(a), or from the Buyer by the Seller Indemnified Parties pursuant to Section 7.3(a), shall be Losses in excess of $185,000,000 2,000,000 (the “CapBasket”); provided that the Cap shall not be applicable in respect of any breach of a Fundamental Representation; provided, further, that the maximum aggregate amount of indemnifiable Losses that may be recovered from the Seller by the Buyer Indemnified Parties pursuant to Section 7.2(a) in respect of any breach of the representations and warranties set forth in the last sentence of Section 3.14(d) and Section 3.15 (together with all other recoveries for breaches of representations and warranties subject to the Cap) shall be $277,500,000; (ii) the Seller shall not be liable to any Buyer Indemnified Party pursuant to Section 7.2(a), and the Buyer shall not be liable to any Seller Indemnified Party pursuant to Section 7.3(a), for any claim for indemnification (x) unless and until the aggregate amount of indemnifiable Losses that may be recovered from the Seller or the Buyer, as applicable, equals or exceeds $18,500,000 (the “Basket Amount”)aggregate, in which case the Seller or Buyer Indemnified Parties may bring a claim for all Losses; (ii) the Buyer, amount of any payment made as applicable, a result of a claim arising under Section 9.2 shall be liable only for net of any amounts actually recovered under insurance policies by the Buyer or any of its Affiliates; and (iii) the maximum liability of the REIT I Sellers under Section 9.2 shall not exceed $17,000,000 in the aggregate, and the maximum liability of the REIT II Sellers under Section 9.2 shall not exceed $58,000,000 in the aggregate. (c) Notwithstanding anything to the contrary contained in this Agreement, but subject to Section 9.6: (i) no amounts of indemnity shall be payable as a result of any claim arising under Section 9.3 unless and until the Seller Indemnified Parties have suffered, incurred, sustained or become subject to Losses in excess of Basket in the Basket Amount or aggregate, in which case the Buyer Indemnified Parties may bring a claim for all Losses; (yii) in respect the amount of any payment made as a result of a claim that results in Losses of less than $50,000; provided that the foregoing limitations in clauses (x) and (y) arising under Section 9.3 shall not be applicable in respect net of any breach of a Fundamental Representation amounts actually recovered under insurance policies by the Seller or any breach of the representations and warranties set forth in the last sentence of Section 3.14(d)its Affiliates; and provided, further, that in no event shall there be duplication of payments with respect to items considered as part of any Inventory adjustment under Section 2.3 and amounts paid with respect to indemnification claims under this Article VII; (iii) the maximum liability of the Buyer under Section 9.3 shall not exceed $25,000,000 in the aggregate. (d) Notwithstanding anything to the contrary contained in this Agreement, no party hereto shall have any liability under any provision Sections 9.2 or 9.3 of this Agreement for any (i) punitive, incidental, consequential, exemplary, special or indirect damages, including business interruption, diminution of value, loss of future revenue, profits or income, or loss of business reputation or opportunity relating to the breach or alleged breach of this Agreement (except (i) to the extent actually awarded to a Governmental Authority or other third party Agreement, or (ii) items or matters that have been prorated or adjusted in accordance with Section 2.5. (e) Notwithstanding anything to the contrary contained in this Agreement, any indemnity payments pursuant to this Article IX shall be paid in the form of cash. In the event that any Indemnified Party is finally determined to be entitled to indemnification hereunder from an Indemnifying Party, the amount of such indemnification pursuant to the terms of Section 9.2 or 9.3, as the case may be (the “Indemnification Amount”), shall be immediately due and payable. To any extent any Indemnifying Party fails to pay the Indemnification Amount within 10 Business Days of a final determination, the Indemnification Amount shall accrue interest for the benefit of the Indemnified Party at a rate per annum equal to 12%, compounded monthly, until paid. (f) The Buyer acknowledges that the Sellers may purchase for the benefit of the Buyer a policy or policies of Buyer UCC Insurance from a national title insurance underwriter with respect to breaches of (x) the representations and warranties set forth in Section 3.15 3.2 (related relating to intellectual propertyauthority), Section 3.4 (relating to capitalization), Section 3.5 (relating to the Securities) or and Section 3.6 (y) any covenant or agreement contained in relating to Subsidiary equity interests), naming the Intellectual Property LicenseBuyer as beneficiary thereto. To extent such insurance is purchased, the Buyer agrees to first seek indemnification thereunder with respect to which consequential damages that are reasonably foreseeable shall be available to a party in seeking a remedy hereunder); and (iv) in no event shall the Seller be liable to any Buyer Indemnified Party pursuant to Section 7.2 or otherwise for any claim for indemnification for or other Liability in respect of Taxes attributable to the operation or conduct of the Business or the Transferred Assets for any Post-Closing Tax Period. (c) The amount of any and all Losses under this Article VII shall be determined net of (i) any Tax benefit actually realized breach by the applicable Indemnified Party or its Affiliates arising in connection with the accrual, incurrence or payment Sellers of any such Lossesrepresentations and warranties, and (ii) that any insurance proceeds payable recoveries amounts paid to the Indemnified Party or its Affiliates in connection with the facts giving rise Buyer pursuant to the right of indemnification (less any related costs and expenses, including the aggregate cost of pursuing any related insurance claims and any related increases in insurance premiums or other chargebacks). Each party hereby waives, to the extent permitted under its applicable insurance policies, any subrogation rights that its insurer may have with respect to any indemnifiable Losses. For this purpose, (i) the applicable Indemnified Party or its Affiliate such policies shall be deemed to recognize paid by the Sellers for all other items of loss, deduction or credit before recognizing any deduction or loss arising from the incurrence or payment of any indemnified Loss for which indemnification is provided purposes under this Article VII, and (ii) the applicable Indemnified Party or its Affiliate shall be deemed to have “actually realized” a net Tax benefit if (A) realized in the year of the indemnified Loss, and (B) to the extent that, with respect to any taxable period of such Indemnified Party or such Affiliate ending on or before two years from the Closing Date, the amount of Taxes payable by such Indemnified Party or such Affiliate is reduced below the amount of Taxes that such Indemnified Party or such Affiliate would have been required to pay but for the incurrence or payment of such Losses for which indemnification is provided under this Article VIIAgreement. (d) The Buyer and the Seller shall cooperate with each other with respect to resolving any claim, liability or Loss for which indemnification may be required hereunder. The Buyer and the Seller shall cause the applicable Indemnified Party to use commercially reasonable efforts to seek full recovery under all insurance policies covering any Loss to the same extent as they would if such Loss were not subject to indemnification hereunder.