CLOSING DATE AND IS NOT AN ASSUMED LIABILITY,
INCLUDING THE EXCLUDED LIABILITIES; OR
(E)
ANY LITIGATION, PROCEEDING OR CLAIM BY ANY PERSON RELATING TO THE
BUSINESSES AS CONDUCTED PRIOR TO CLOSING WHETHER OR NOT SUCH LITIGATION,
PROCEEDING OR CLAIM IS SET FORTH ON SCHEDULE 4.13(A) OR SCHEDULE 4.13(B);
(F)
ANY LIABILITIES OR OBLIGATIONS THAT ARISE WITHIN FIFTEEN (15) MONTHS OF THE
CLOSING DATE WITH RESPECT TO THE DEVELOPING AGENT AGREEMENTS TO THE EXTENT SUCH
LIABILITY OR OBLIGATION IS NOT OTHERWISE REIMBURSED IN ACCORDANCE WITH ARTICLE
VI; OR
(G)
ANY AND ALL ACTIONS, SUITS, OR PROCEEDINGS, INCIDENT TO ANY OF THE
FOREGOING.
11.3
Indemnification by Buyer.
Subject to the limitations set forth in
this Article XI, Buyer and Parent will each indemnify, defend and hold harmless
the Sellers and their respective stockholders, managers, officers, directors,
agents, attorneys and employees (hereinafter "Seller Indemnified Parties" and,
together with the Buyer Indemnified Parties, the "Indemnified Party") from and
against any and all Damages incurred or sustained by the Sellers Indemnified
Parties as a result of:
(A)
THE BREACH OF ANY REPRESENTATION OR WARRANTY OF BUYER OR PARENT CONTAINED
UNDER THIS AGREEMENT OR ANY CERTIFICATE OR OTHER INSTRUMENT FURNISHED BY BUYER
OR PARENT TO SELLER PURSUANT TO THIS AGREEMENT;
(B)
THE BREACH OF, DEFAULT UNDER OF NONFULFILLMENT OF ANY COVENANT, OBLIGATION
OR AGREEMENT BY BUYER OR PARENT UNDER THIS AGREEMENT OR IN THE AGREEMENTS AND
INSTRUMENTS CONTEMPLATED HEREIN;
(C)
THE OPERATION OF THE BUSINESSES AND THE OWNERSHIP OF THE PURCHASED ASSETS
BY BUYER FOLLOWING THE CLOSING;
48
(D)
ANY ASSUMED LIABILITY; AND
(E)
ANY AND ALL ACTIONS, SUITS, OR PROCEEDINGS INCIDENT TO ANY OF THE
FOREGOING..
11.4
Limitation on Liability.
(A)
NONE OF THE SELLERS, MFFB OR PARENT NOR BUYER SHALL HAVE ANY LIABILITY FOR
DAMAGES UNDER, RESPECTIVELY, SECTION 11.2 (OTHER THAN SECTION 11.2(F)) OR
SECTION 11.3, AND NEITHER THE SELLER INDEMNIFIED PARTIES NOR THE BUYER
INDEMNIFIED PARTIES SHALL HAVE THE RIGHT TO SEEK INDEMNIFICATION UNDER,
RESPECTIVELY, SECTION 11.2 (OTHER THAN SECTION 11.2(F) OR SECTION 11.3 UNTIL THE
AGGREGATE AMOUNT OF THE DAMAGES INCURRED BY SUCH INDEMNIFIED PARTY EXCEEDS
$200,000 (THE "MINIMUM LOSS"), PROVIDED THAT THE MINIMUM LOSS SHALL NOT APPLY TO
ANY DAMAGES (AND THERE SHALL BE FIRST-DOLLAR LIABILITY) RESULTING FROM ANY
BREACH OR MISREPRESENTATION OF ANY CORE REPRESENTATIONS AND SECTION 4.10.
AFTER
THE MINIMUM LOSS IS EXCEEDED, THE INDEMNIFIED PARTY SHALL BE ENTITLED TO
INDEMNIFICATION FOR THE ENTIRE AMOUNT OF ITS DAMAGES IN EXCESS OF THE MINIMUM
LOSS, SUBJECT TO THE LIMITATIONS ON RECOVERY AND RECOURSE SET FORTH IN THIS
ARTICLE XI.
(B)
THE AGGREGATE LIABILITY OF THE SELLERS AND MFFB ON THE ONE HAND,
AND BUYER
AND PARENT, ON THE OTHER, FOR ALL DAMAGES UNDER SECTION 11.2 OR SECTION 11.3 OR
PAYMENTS UNDER ARTICLE VI, AS APPLICABLE, SHALL NOT EXCEED THE FINAL PURCHASE
PRICE (THE "CAP").
THE LIMITATIONS SET FORTH IN THIS SECTION 11.4 OR ELSEWHERE
IN THIS ARTICLE XI SHALL NOT APPLY TO ANY BREACH OF A CORE REPRESENTATION OR IN
THE CASE OF FRAUD.
(C)
IN DETERMINING THE AMOUNT