SHALL NOT BE OBLIGATED TO
INDEMNIFY BUYER FOR LOSSES PURSUANT TO SECTIONS 10.2(A) OR 10.2(B), AND BUYER
SHALL NOT BE OBLIGATED TO INDEMNIFY PFC FOR LOSSES PURSUANT TO
SECTION 10.3(A)(1), IN EACH CASE, PURSUANT TO THIS ARTICLE X UNLESS AND UNTIL
THE AMOUNT OF ALL LOSSES INCURRED BY BUYER, OR BY PFC, AS THE CASE MAY BE,
EXCEEDS, IN THE AGGREGATE, $18,000,000 (THE "DEDUCTIBLE"), IN WHICH EVENT THE
PARTY SEEKING INDEMNITY MAY RECOVER ALL LOSSES INCURRED IN EXCESS OF
$12,000,000, AND (2) PFC'S MAXIMUM LIABILITY FOR LOSSES PURSUANT TO
SECTION 10.2(A) AND SECTION 10.2(B) AND BUYER'S MAXIMUM LIABILITY FOR LOSSES
PURSUANT TO SECTION 10.3(A)(1), IN EACH CASE, SHALL BE $600,000,000 (THE
"MAXIMUM INDEMNITY AMOUNT"); PROVIDED, HOWEVER, THAT, NOTWITHSTANDING THE
FOREGOING, THE DEDUCTIBLE AND THE MAXIMUM INDEMNITY AMOUNT SHALL NOT APPLY TO
(AND THE INDEMNIFIED PARTIES SHALL BE ENTITLED TO BE INDEMNIFIED FOR ALL LOSSES
RELATING TO):
(A)
ANY CLAIMS ASSERTED UNDER SECTION 10.2(A), 10.2(B), OR 10.3(A)(1),
AS APPLICABLE, INSOFAR AS SUCH CLAIMS RELATE TO ANY BREACH OF FUNDAMENTAL
REPRESENTATIONS OR ANY CERTIFICATE TO THE EXTENT BASED ON ANY SUCH FUNDAMENTAL
REPRESENTATION; AND
(B)
ANY CLAIMS BASED ON FRAUDULENT ACTS, FRAUDULENT OMISSIONS, OR
INTENTIONAL MISREPRESENTATIONS.
(B)
THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES PURSUANT TO THIS
ARTICLE X SHALL NOT INCLUDE PUNITIVE DAMAGES, PROVIDED THAT ANY PUNITIVE DAMAGES
RECOVERED BY A THIRD PARTY (INCLUDING A GOVERNMENTAL ENTITY, BUT EXCLUDING ANY
AFFILIATE OF ANY PARTY) AGAINST AN INDEMNIFIED PARTY SHALL BE INCLUDED IN THE
DAMAGES RECOVERABLE BY SUCH INDEMNIFIED PARTY PURSUANT TO THIS ARTICLE X.
70
(C)
FOR PURPOSES OF THIS ARTICLE X, IN DETERMINING IF A BREACH OF A
REPRESENTATION OR WARRANTY HAS OCCURRED PURSUANT TO WHICH A BUYER INDEMNIFIED
PERSON OR A PFC INDEMNIFIED PERSON IS ENTITLED TO INDEMNIFICATION UNDER
SECTIONS 10.2(A), 10.2(B) OR 10.3(A)(1) AND IN DETERMINING THE AMOUNT OF LOSSES
FROM SUCH BREACH, SUCH DETERMINATION SHALL BE MADE WITHOUT GIVING EFFECT TO ANY
MATERIAL ADVERSE EFFECT OR OTHER MATERIALITY QUALIFIERS, INCLUDING AS EXPRESSED
IN ACCOUNTING CONCEPTS SUCH AS GAAP, THAT MAY BE CONTAINED IN THE APPLICABLE
REPRESENTATION OR WARRANTY.
(D)
BUYER CLAIMS FOR A BREACH OF REPRESENTATION IN SECTION 4.14 SHALL
BE SUBMITTED NOT MORE FREQUENTLY THAN ONCE PER QUARTER.
10.7
INDEMNIFICATION DESPITE NEGLIGENCE. IT IS THE EXPRESS INTENTION OF
THE PARTIES HERETO THAT EACH INDEMNIFIED PARTY SHALL BE INDEMNIFIED AND HELD
HARMLESS FROM AND AGAINST ALL LOSSES AS TO WHICH INDEMNITY IS PROVIDED FOR UNDER
THIS ARTICLE X, NOTWITHSTANDING THAT ANY SUCH LOSSES ARISE OUT OF OR RESULT FROM
THE ORDINARY, STRICT, SOLE, OR CONTRIBUTORY NEGLIGENCE OF SUCH PERSON AND
REGARDLESS OF WHETHER ANY OTHER PERSON (INCLUDING THE OTHER PARTIES TO THIS
AGREEMENT) IS OR IS NOT ALSO NEGLIGENT. THE PARTIES HERETO ACKNOWLEDGE THAT THE
FOREGOING COMPLIES WITH THE EXPRESS NEGLIGENCE RULE AND IS CONSPICUOUS.
ARTICLE XI
MISCELLANEOUS
11.1
DISPUTE RESOLUTION.
(A)
ANY AND ALL CLAIMS, DISPUTES, CONTROVERSIES OR OTHER MATTERS IN
QUESTION ARISING OUT OF OR RELATING TO MATTERS UNDER SECTIONS 7.19, 8.1, 8.2 AND
8.3 (AND, TO THE EXTENT THAT INTERPRETATION OF THIS AGREEMENT IS