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(A) OR SECTION 11.3(A),
AND NEITHER THE SELLER INDEMNIFIED PARTIES NOR THE BUYER INDEMNIFIED PARTIES
SHALL HAVE THE RIGHT TO SEEK INDEMNIFICATION UNDER, RESPECTIVELY,
SECTION 11.2(A) OR SECTION 11.3(A) 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 (I) ANY BREACH OR MISREPRESENTATION OF
ANY CORE REPRESENTATIONS AND SECTIONS 4.10 AND 4.18 OR (II) ANY PAYMENT
OBLIGATION OF EITHER SELLER UNDER SECTION 3.2(G).
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.
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(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, AS APPLICABLE, SHALL NOT EXCEED THE FINAL PURCHASE PRICE (THE
"CAP"); PROVIDED, HOWEVER, THAT THE AGGREGATE LIABILITY OF THE SELLERS AND MFFB
FOR ALL DAMAGES UNDER SECTION 11.2(A) RESULTING FROM A BREACH OR
MISREPRESENTATION OF SECTION 4.18 SHALL NOT EXCEED FIVE MILLION DOLLARS
($5,000,000).
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 OF DAMAGES IN RESPECT OF A CLAIM UNDER
THIS ARTICLE XI, THERE SHALL BE DEDUCTED AN AMOUNT EQUAL TO THE AMOUNT OF ANY
THIRD-PARTY INSURANCE PROCEEDS ACTUALLY RECEIVED BY THE INDEMNIFIED PARTY MAKING
SUCH CLAIM WITH RESPECT TO SUCH DAMAGES, LESS THE COST OF ANY INCREASE IN
INSURANCE PREMIUMS OVER THE PROJECTED PERIOD OF SUCH INCREASE AS A RESULT OF
MAKING A CLAIM FOR SUCH DAMAGES, PROVIDED THAT THERE SHALL BE NO OBLIGATION TO
MAKE A CLAIM, AND NO OFFSET AGAINST DAMAGES SHALL BE MADE IF A PARTY REASONABLY
BELIEVES THAT MAKING A CLAIM FOR SUCH DAMAGES IS REASONABLY LIKELY TO RESULT IN
A NON-RENEWAL OF THE INSURANCE POLICY.
11.5
Other Indemnification Provisions.
(A)
TO THE EXTENT THAT ANY REPRESENTATIONS AND WARRANTIES OF THE
SELLERS, PARENT OR BUYER, AS APPLICABLE, HAVE BEEN BREACHED, THEREBY ENTITLING
THE NON-BREACHING PARTY TO INDEMNIFICATION PURSUANT TO SECTION 11.2 AND
SECTION 11.3 HEREOF, IT IS EXPRESSLY AGREED AND ACKNOWLEDGED BY THE PARTIES THAT
SOLELY FOR PURPOSES OF CALCULATION OF DAMAGES IN CONNECTION WITH ANY RIGHT TO
INDEMNIFICATION, THE REPRESENTATIONS AND WARRANTIES OF EITHER OR THE SELLERS OR
PARENT AND BUYER, AS APPLICABLE, THAT HAVE BEEN BREACHED SHALL BE DEEMED NOT
QUALIFIED BY ANY REFERENCES THEREIN TO MATERIALITY GENERALLY, SELLERS' KNOWLEDGE
OR TO WHETHER OR NOT ANY BREACH OR INACCURACY RESULTS IN A MATERIAL ADVERSE
EFFECT.
(B)
FOLLOWING THE CLOSING, THE