Common use of Limitation of Indemnification Clause in Contracts

Limitation of Indemnification. Notwithstanding anything to the contrary in this Agreement: (i) Seller shall not be liable for any Indemnifiable Losses pursuant to this Agreement (A) in the aggregate greater than the Escrow Amount and (B) other than Indemnifiable Losses with respect to the Purchase Price Adjustment Schedule which may be recovered in full, unless the aggregate amount of all such Indemnifiable Losses pursuant to this Agreement for which indemnification is sought exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) (the “Indemnity Basket”); provided that, if the aggregate amount of all Indemnifiable Losses exceeds the Indemnity Basket, Buyers or the Indemnitees, as the case may be, shall be entitled to indemnification for all such Indemnifiable Losses, without regard to the Indemnity Basket; (ii) in any Claim for indemnification the Buyer or any Indemnitee, as the case may be, may seek indemnification for its Indemnifiable Losses only from the Escrow Amount (and pursuant to the terms of the Escrow Agreement); (iii) Seller shall not be liable for any Indemnifiable Losses that was not submitted within the survival period set forth in Section 9.04; and (iv) Buyer or any Indemnitee shall be entitled to receive (out of the Escrow Amount) any amount that: (A) has been determined by a court of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an Indemnitee.

Limitation of Indemnification. (a) Notwithstanding anything to the contrary in this Agreement: (i) Seller provisions of Section 12.02, the holders of CPS and Common Stock shall not be liable for any Indemnifiable Losses pursuant to this Agreement (A) in the aggregate greater than the Escrow Amount Damages under such Section unless and (B) other than Indemnifiable Losses with respect to the Purchase Price Adjustment Schedule which may be recovered in full, unless until the aggregate amount of all such Indemnifiable Losses pursuant to this Agreement for which indemnification is sought Damages exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) 125,000 (the “Indemnity BasketThreshold Amount”); provided that, if and, once the aggregate amount of all Indemnifiable Losses exceeds the Indemnity BasketThreshold Amount has been reached, Buyers then Buyer or the Indemniteesits officers, as the case may bedirectors, employees, attorneys, agents or Affiliates shall be entitled to indemnification for all such Indemnifiable LossesDamages; provided that the maximum aggregate liability of the holders of CPS or Common Stock with respect to any and all Damages incurred under or in connection with this Agreement will not exceed the Escrow Amount. This Article XII shall be the sole and exclusive remedy of Buyer and its Affiliates with respect to all matters or Damages arising under or in connection with this Agreement, without regard except that with respect to Damages resulting from a breach of the Extended Representations, Buyer shall also be entitled to satisfy any liability of the holders of CPS and Common Stock also from, and only also from, the Earn-Out Consideration’ for avoidance of doubt, if the Escrow Amount shall have been released to the Indemnity Basketholders of CPS and Common Stock, then any such liability for the breach of Extended Representations shall be satisfied solely from the Earn-Out Consideration; provided, however, that notwithstanding anything in this Article XII to the contrary, nothing in this Agreement shall limit (i) any right or remedy for fraud, provided however that in such event, the several – and not joint and several – liability of each stockholder of the Company for such fraud shall be limited to the net amount actually received by such stockholder under this Agreement, or (ii) any equitable remedy, including a preliminary or permanent injunction or specific performance. (b) In the event of fraud, Buyer will first seek recovery of Damages from the Escrow Fund and the Earn Out Consideration before proceeding against the holders of CPS and Common Stock directly; in any Claim for indemnification the all other events, Buyer or any Indemnitee, as the case may be, may seek indemnification for its Indemnifiable Losses recovery of Damages only from the Escrow Amount (and pursuant Fund and, with respect to Extended Representations – also from the Earn-Out Consideration, subject to the terms limitations stated herein. Any claims for indemnification from the Escrow Fund or the Earn-Out Consideration, if applicable, will be limited to the portion [Confidential Treatment Requested—] allocable pro rata to the applicable holder of CPS or Common Stock based on the allocation of the Escrow Agreement); (iii) Seller shall not be liable for any Indemnifiable Losses that was not submitted within the survival period set forth in Section 9.04; and (iv) Buyer or any Indemnitee shall be entitled to receive (out of the Escrow Amount) any amount that: (A) has been determined by a court of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an IndemniteeClosing Merger Consideration.

Limitation of Indemnification. Notwithstanding anything The Indemnifying Party's ----------------------------- obligations to indemnify the contrary in this Agreement: (i) Seller shall not be liable for any Indemnifiable Losses Claimant pursuant to this Agreement (A) in the aggregate greater than the Escrow Amount and (B) other than Indemnifiable Losses with respect Section 11 shall be ---------- subject to the Purchase Price Adjustment Schedule which may following limitations: (a) No indemnification shall be recovered in full, unless required to be made by the Indemnifying Party until the aggregate amount of all the Claimant's Losses (which Losses shall include Losses relating to any representation or warranty qualified by reference to materiality or to a material adverse change even if such Indemnifiable Loss does not in and of itself result in a breach of such representation or warranty) exceeds $100,000 (the "Basket"), and then indemnification shall only be required by the Indemnifying Party to the extent of such excess. Notwithstanding the foregoing, the limitation imposed by the Basket shall not apply to (i) the Acquisition Price Adjustment, or (ii) breaches of the provisions of Sections -------- 2.4, 2.5 or 13.4. ---------------- (b) No indemnification shall be required to be made by the Indemnifying Party under this Section 11 for the amount of the Claimant's Losses pursuant ---------- that are in excess of $2,000,000, except with respect to this Agreement (i) breaches of the provisions of Sections 2.4 or 2.5 which will be subject to a separate limitation ------------------- in the amount of the Closing Date Accounts Receivable (less allowance for doubtful accounts, and reserves for cost report disallowances and contractual allowances reflected on the Closing Date Balance Sheet) which amount shall be reduced by Accounts Receivable actually collected by the Purchaser after the Closing, (ii) the Acquisition Price Adjustment which is not subject to a limitation, and (iii) Losses incurred in connection with undisclosed liabilities which are subject to a separate limitation in the amount of $3,500,000 for Claims asserted during the first 15 months after Closing and $2,000,000 for Claims asserted thereafter. (c) The indemnification obligation of an Indemnifying Party shall be adjusted so as to give effect to any net reduction in federal, state, local or foreign income or franchise tax liability actually realized at any time by the Claimant in connection with the -44- satisfaction by the Indemnifying Party of a Claim with respect to which indemnification is sought exceeds on a cumulative basis Fifty Thousand Dollars hereunder. Any Claims payable by the Indemnifying Party to the Claimant hereunder shall also include the federal, state, local or foreign income or franchise tax liability that the Claimant will incur upon the receipt of payment in respect of such Claims ($50,000) (taking into account any net operating loss, capital loss or credit carryover of the “Indemnity Basket”Claimant); provided thathowever, if with respect to any Claims for which the aggregate amount Claimant (but for the operation of all Indemnifiable Losses exceeds the Indemnity Basket, Buyers or the Indemnitees, as the case may be, shall be this sentence) is entitled to indemnification for all such Indemnifiable Losseshereunder, without regard there shall be disregarded any tax liabilities arising by reason of (i) any reduction or disallowance of deductions from taxable income in one taxable year, but only to the Indemnity Basket; extent such reduction or disallowance actually results in a corresponding increase in allowable deductions from income in another year, (ii) in any Claim for indemnification the Buyer shifting of items of income from one taxable year to another, or any Indemnitee, as the case may be, may seek indemnification for its Indemnifiable Losses only from the Escrow Amount (and pursuant to the terms of the Escrow Agreement); (iii) Seller the capitalization of amounts that were expended, but only if such capitalized amounts are subject to amortization or depreciation or recovery in costs of goods sold, inventory or materials, except insofar as such reduction, disallowance, shifting or capitalization would only result in the increase of any unutilized net operating loss, capital loss or carryover. The indemnification obligation of an Indemnifying Party with respect to any Claim shall not also be liable for adjusted to take into account the amount, if any, of any Indemnifiable Losses that was not submitted within insurance proceeds recovered by the survival period set forth in Section 9.04; and (iv) Buyer or any Indemnitee shall be entitled Claimant as a result of such Claim, after the deduction of all costs incurred to receive (out of the Escrow Amount) any amount that: (A) has been determined by a court of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an Indemniteeobtain such proceeds.

Limitation of Indemnification. (a) Notwithstanding anything to the contrary in this Agreement: , with respect to all the indemnification obligations set forth in this Article VII of this Agreement (i) Seller other than Specified Indemnities for which Losses shall be handled pursuant to subsections 7.3(b)(iii-iv)), the Shareholders shall not be liable for any Indemnifiable Losses pursuant to this Agreement (A) in the aggregate greater than the Escrow Amount and (B) other than Indemnifiable Losses with respect to the Purchase Price Adjustment Schedule which may be recovered in full, unless the aggregate amount of all such Indemnifiable Losses pursuant to this Agreement for which indemnification is sought by such Indemnitor exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) 100,000 (the “Indemnity Basket”); provided that, but if the aggregate amount of all Indemnifiable Losses exceeds such amount, the Indemnity Basket, Buyers or the Indemnitees, as the case may be, Parent Indemnitees shall be entitled to indemnification for all such Indemnifiable Losses, without regard to including the Indemnity Basket; . (iib) in any Claim for indemnification the Buyer or any Indemnitee, Except as the case may be, may seek indemnification for its Indemnifiable Losses only from the Escrow Amount (and pursuant to the terms of the Escrow Agreement); (iii) Seller shall not be liable for any Indemnifiable Losses that was not submitted within the survival period set forth in Section 9.04; 7.8(c) below, the maximum amount a Parent Indemnitee may recover from a Shareholder individually pursuant to the indemnity set forth in this Article VII for Losses shall be limited to such Shareholder’s pro rata portion of the total Earnout payments and the maximum amount the Shareholder Indemnitees collectively may recover from Parent pursuant to the indemnity set forth in this Article VII for Losses shall be limited in the aggregate to the total Earnout payments. (ivc) Buyer Notwithstanding anything to the contrary in this Agreement, the limitations set forth in this Section 7.8 shall not be applicable to any Losses incurred due to fraud or any Indemnitee shall be entitled to receive (out willful misconduct or willful concealment by or on behalf of any Shareholder, the Escrow Amount) any amount that: (A) has been determined by a court of competent jurisdiction to be owing by Seller to Buyer Company or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an IndemniteeParent.

Limitation of Indemnification. (a) Notwithstanding anything to the contrary in this Agreement: (i) Seller shall not be liable , in the event of any claim for any Indemnifiable Losses indemnification pursuant to Section 9.2 or Section 9.4 or Section 11.3(a) of this Agreement (A) in Agreement, the aggregate greater than the Escrow Amount and (B) other than Indemnifiable Losses with respect Indemnified Party will be entitled to indemnification only to the Purchase Price Adjustment Schedule which may be recovered in full, unless extent that the aggregate amount payable pursuant to Sections 9.2, 9.4 and 11.3(a) in respect of all such Indemnifiable Losses pursuant to this Agreement for which indemnification is sought (“Indemnifiable Amounts”) exceeds on a cumulative basis Fifty One Hundred Thousand Dollars ($50,000100,000) (the “Indemnity BasketThreshold Amount”); , provided that, if that at such time as the aggregate amount of all Indemnifiable Losses to which the Indemnified Party is entitled to be indemnified exceeds the Indemnity BasketThreshold Amount, Buyers or the Indemnitees, as the case may be, Indemnified Party shall be entitled to indemnification for all such Indemnifiable Losses, without regard be indemnified up to the full Indemnifiable Amount, including the amount of the Threshold Amount, subject, however, to the following limitations. The aggregate amount to which the Buyer will be entitled to be indemnified (other than under Section 9.3) will not exceed Six Million One Hundred Thousand Dollars ($6,100,000) (the “Maximum Indemnity Basket; Amount”) and the liability of any single Principal Stockholder for his indemnification obligations under Section 9.2 shall be further limited to the lesser of (i) such Principal Stockholder’s pro rata share of any Indemnifiable Amount or (ii) such Principal Stockholder’s pro rata share of the Maximum Indemnity Amount, in any Claim for indemnification each case based upon the number of Shares being sold to the Buyer or any Indemnitee, by such Principal Stockholder in proportion to the total number of Shares being sold to the Buyer by all of the Principal Stockholders as the case may be, may seek indemnification for its set forth on EXHIBIT 1.1. Any Indemnifiable Losses only from the Escrow Amount (and Amounts payable by a Principal Stockholder pursuant to the terms preceding sentence will be reduced by such Principal Stockholder’s portion of the Escrow Agreement); (iii) Seller Funds pursuant to the Escrow Agreement that shall not be liable for paid to the Buyer. Buyer will first seek reimbursement of any Indemnifiable Losses Amounts (other than under Section 9.3) pursuant to the provisions of the Escrow Agreement if and to the extent that was Escrow Funds shall then be held in escrow pursuant to the Escrow Agreement and shall be available for the satisfaction of indemnification claims pursuant to this Article IX, but may thereafter seek indemnification under Section 9.2 directly against the Principal Stockholders, or any of them, with respect to any deficiency in any Indemnifiable Amounts not submitted within satisfied by the survival period Escrow Funds held pursuant to the Escrow Agreement after the termination of the Escrow Agreement (subject, however, to the limitations set forth in Section 9.04; 9.1, this Section 9.6 and Section 9.8). (ivb) Buyer or Notwithstanding the foregoing, there will be no limitation on the obligations of any Indemnitee shall be entitled to receive (Indemnifying Party for Indemnifiable Losses arising out of the Escrow Amount(i) any amount that: (A) has been determined fraud by a court of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, such party in connection with this Agreement; or (Bii) that the indemnification obligations of each Seller has agreed in writing pursuant to be owing by Seller to Buyer or to an Indemniteethe provisions of Section 9.3 hereof.

Limitation of Indemnification. (a) Notwithstanding anything to the contrary in this Agreement: (i) Seller shall not be liable , in the event of any claim for any Indemnifiable Losses indemnification pursuant to this Agreement (ASection 10.2(i) in or Section 10.4(i), the Indemnified Party will be entitled to indemnification only to the extent that the aggregate greater than the Escrow Amount and Indemnifiable Amounts (Bwhich shall be determined for all purposes of this Article X disregarding any qualification in any representation or warranty as to “materially” or “material”) other than Indemnifiable Losses with respect to the Purchase Price Adjustment Schedule which may be recovered in full, unless the aggregate amount of all such Indemnifiable Losses pursuant to this Agreement for which indemnification is sought exceeds on a cumulative basis Fifty Thousand exceed [●] Dollars ($50,000) [●] (the “Indemnity Basket”); Threshold Amount“) [provided that, if that at such time as the aggregate amount of all Indemnifiable Losses to which the Indemnified Party is entitled to be indemnified exceeds the Indemnity BasketThreshold Amount, Buyers or the Indemnitees, as the case may be, Indemnified Party shall be entitled to indemnification for all such Indemnifiable Losses, without regard be indemnified up to the Indemnity Basket; (ii) in any Claim for indemnification full Indemnifiable Amounts including the Threshold Amount.] [The aggregate amount to which the Buyer will be entitled to be indemnified will not exceed a dollar amount equal to [total proceeds or any Indemnitee, as the case may be, may seek indemnification for its other limit]. Any Indemnifiable Losses only from the Escrow Amount (and Amounts payable by a Seller pursuant to the terms preceding sentence will be net of, and in addition to, such Seller’s portion of the property held pursuant to the Escrow Agreement that is payable to the Buyer; [provided, however, that the Buyer will first seek reimbursement of any Indemnifiable Amounts pursuant to the provisions of the Escrow Agreement); (iii) Seller shall not be liable for , but may seek indemnification hereunder with respect to any deficiency in any Indemnifiable Losses Amounts not satisfied by the property held pursuant to the Escrow Agreement after the termination of the Escrow Agreement.] (b) Notwithstanding the foregoing, that was not submitted within there will be no limitation on the survival period obligations of any Indemnifying Party for indemnifiable amounts arising out of criminal activity or fraud or willful misstatements or omissions by such party in connection with this Agreement. The limitations set forth in this Section 10.5 are expressly made inapplicable to any liability in respect of any Tax Claim. For the purposes of this Agreement, a “Tax Claim” means any claim for indemnification pursuant to this Article X relating to or arising out of (i) any breach or alleged breach of any representation or warranty set forth in Section 9.04; and 7.2 or of any covenant or agreement set forth in Section 4.1(f) or Section 7.3 or (ivii) Buyer or any Indemnitee shall be entitled to receive (out Excluded Liability described in clause 5 of the Escrow Amount) any amount that: (A) has been determined by a court list of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an IndemniteeExcluded Liabilities set forth on Schedule 1.4.

Limitation of Indemnification. Notwithstanding anything in this Agreement to the contrary contrary: (a) The aggregate liability of the Seller Parties for Losses under this Article 5 shall not exceed an amount equal to the Purchase Price; provided, however, the foregoing limitation shall not apply in the case of Fraud. (b) The Buyer Indemnified Parties shall not be entitled to recover any amounts pursuant to Section 5.2(a) unless and until the aggregate amount of Losses recoverable under such section equals $67,275 (the “Indemnification Deductible”), in which event the Buyer Indemnified Parties will be entitled to recover, and the Seller Parties shall be required to indemnify the Buyer Indemnified Parties for, Losses in excess of the Indemnification Deductible up to an aggregate amount of Losses equal to $67,275 (the “Indemnification Cap”); provided, however, that the foregoing limitation shall not apply with respect to any breach of or inaccuracy in any Fundamental Representation or in the case of Fraud. For the avoidance of doubt, the aggregate liability of the Seller Parties for any claim pursuant to Section 5.2(a) (other than in respect of an inaccuracy or breach of any Fundamental Representation) shall not exceed an amount equal to $67,275. (c) Any knowledge that a party has of a breach prior to the Closing will not impact such party’s right to indemnification hereunder. (d) To the maximum extent permissible under applicable law, any Losses indemnified for under this Article 5 shall be treated as adjustments to the Purchase Price for Tax purposes. (e) For purposes of determining both the accuracy of representations and warranties and the amount of any Losses under Sections 5.2, all references to “material,” “materiality,” “in all material respects,” “material adverse effect,” or similar phrases or qualifiers shall be disregarded. (f) Notwithstanding anything in this Agreement: Agreement to the contrary, no Indemnifying Party is to have any liability to any Indemnitee for any consequential, special, incidental or indirect Losses, lost profits, diminution in value or punitive Losses and, in particular, no “multiple of profits,” “multiple of revenue” or “multiple of cash flow” or other valuation methodology will be used in calculating the amount of any Losses, in each case, except to the extent such Losses are paid to a third party in connection with any Third Party Claim. (g) Any indemnified Losses which an Indemnitee is entitled to recover under this Article 5 shall be determined net of any amounts actually recovered by the Indemnitee under any insurance policies (other than the R&W Policy) with respect to such Losses, net of any costs or expenses incurred in connection with such recovery or premium increases. The Indemnitee(s) shall use commercially reasonable efforts to pursue recovery for Losses under any such available insurance policies and shall use commercially reasonable efforts to pursue payment from any applicable Person under any agreement, contract, arrangement or commitment pursuant to which the Indemnitee(s) are entitled to indemnification for any Loss for which an Indemnitee seeks indemnification pursuant to this Article 5; provided, that the pursuit of any such recovery shall not be a condition or prerequisite to making of a claim for indemnification, or the receipt of indemnification payments, under this Article 5. If any such insurance proceeds are actually recovered under insurance policies after payment of any amount otherwise required to be paid to an Indemnitee under this Article 5, the applicable Indemnitee shall repay to the Indemnifying Party, promptly after such determination, any amount that the Indemnifying Party would not have had to pay pursuant to this Article 5 had such actual recovery been made at the time of such payment (net of any costs or expenses incurred in connection with such recovery or premium increases). Notwithstanding anything herein to the contrary, (i) Seller except as set forth in Section 5.7(e), in no event shall not be liable any Indemnitee’s pursuit of any such recovery under any insurance policy or from any third party delay such Indemnitee from making a claim for indemnification, or receiving any Indemnifiable Losses pursuant indemnification payment, under this Article 5 and (ii) in no event shall any Indemnitee have any obligation to commence or threaten litigation, suit or arbitration against any insurance carrier or any other Person. Nothing in this Agreement shall in any way restrict or limit the general obligation at Law of any Indemnitee to mitigate any Loss which it may suffer or incur by reason of a breach of any representation, warranty, covenant of obligation of any other Party under this Agreement. Losses payable by an Indemnifying Person are to be determined without duplication such that no Indemnified Person actually recovers more than once for the same Losses, irrespective of whether the state of facts giving rise to such Losses constitute a breach of or inaccuracy in more than one representation, warranty, covenant, obligation or agreement. (Ah) in Notwithstanding anything herein to the aggregate greater than contrary, an Indemnitee shall only be permitted to recover with respect to any particular Losses suffered by it once as it is the Escrow Amount and (B) other than Indemnifiable parties’ intent that once any particular Losses have been recovered by a particular Indemnitee under one provision, such Losses no longer exist with respect to the Purchase Price Adjustment Schedule which may be recovered in fullIndemnitee and, unless therefore, recovery by the aggregate amount of all Indemnitee for such Indemnifiable same Losses pursuant under another provision would constitute an unintended and prohibited “double” recovery. (i) Notwithstanding anything herein to this Agreement for which indemnification is sought exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) (the “Indemnity Basket”); provided thatcontrary, if the aggregate amount of all Indemnifiable Losses exceeds the Indemnity Basket, Buyers or the Indemnitees, as the case may be, no Buyer Indemnified Party shall be entitled to indemnification be indemnified under this Article 5 for all such Indemnifiable Losses, without regard any Losses to the Indemnity Basket; (ii) extent such Losses are with respect to a liability accrued on or reserved for, in any Claim for indemnification each case, on a dollar-for-dollar basis, in the Buyer or any Indemnitee, as the case may be, may seek indemnification for its Indemnifiable Losses only from the Escrow Amount (and pursuant to the terms calculation of the Escrow Agreement); (iii) Seller shall not be liable for any Indemnifiable Losses that was not submitted within Net Working Capital or otherwise in the survival period set forth in Section 9.04; and (iv) Buyer or any Indemnitee shall be entitled to receive (out determination of the Escrow Amount) any amount that: (A) has been determined by a court of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an IndemniteePurchase Price.

Limitation of Indemnification. Notwithstanding anything to the contrary in this Agreement: (ia) Seller Buyer Indemnified Persons shall not be liable entitled to indemnification hereunder with respect to any Damages specified in Section 12.2(a) and Section 12.2(d), unless the particular indemnifiable damage or loss exceeds $50,000 (each an "Allowable Damage" and collectively, the "Allowable Damages"), with it being understood that all Damages relating to claims arising out of the same set of operative facts shall be considered an individual claim for purposes of this Agreement and such items shall be aggregated for purposes of this proviso. (b) Noveon and Lubrizol shall not have any Indemnifiable Losses pursuant obligation to indemnify any Buyer Indemnified Persons for Allowable Damages specified in Section 12.2(a) (other than with respect to representations and warranties contained in the Fundamental Representations) unless and until such Buyer Indemnified Persons have incurred Allowable Damages in an aggregate amount in excess of $1,500,000, in which event such Buyer Indemnified Persons shall be entitled to be indemnified for the entire amount of such aggregate Allowable Damages. The Parties agree and acknowledge that for purposes of satisfying the $1,500,000 threshold set forth in this Section 12.4(b) that indemnification obligations for Environmental Costs incurred under Article 13 shall not apply toward the satisfaction of such threshold. (c) Notwithstanding anything in this Agreement to the contrary, Noveon's and Lubrizol's aggregate indemnity obligation for Allowable Damages specified in Section 12.2(a) (when aggregated with its indemnification obligations for Environmental Costs incurred under Section 13.4(a)) shall in no event exceed ten percent (10%) of the Purchase Price. Other than with regard to the Fundamental Representations, no recovery for indemnification of Allowable Damages under Section 12.2(a) shall be received by any Buyer Indemnified Person to the extent the aggregate Allowable Damages received under Section 12.2(a) (including any Allowable Damages and Allowable Environmental Cost previously recovered under Section 12.2(a) and Section 13.4(a)) by all of the Buyer Indemnified Persons, taken as a whole, exceed ten percent (10%) of the Purchase Price; and, other than with regard to the Fundamental Representations, Sellers and IP Sellers shall have no responsibility for Allowable Damages under Section 12.2(a) to Buyer Indemnified Persons thereafter. (d) Nothing in this Agreement (Aincluding this Section 12.2) shall limit or restrict any of Buyer's rights to maintain or recover any amounts in the aggregate greater than the Escrow Amount and (B) other than Indemnifiable Losses connection with respect to the Purchase Price Adjustment Schedule which may be recovered in full, unless the aggregate amount of all such Indemnifiable Losses pursuant to this Agreement for which indemnification is sought exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) (the “Indemnity Basket”); provided that, if the aggregate amount of all Indemnifiable Losses exceeds the Indemnity Basket, Buyers any action or the Indemnitees, as the case may be, claim based upon fraud. No Buyer Indemnified Person shall be entitled to indemnification for all such Indemnifiable Losses, without regard hereunder with respect to Damages to the Indemnity Basket; extent (iibut only to the extent) the matter giving rise to such Damages resulted in any Claim an adjustment (in favor of Buyer) to the Purchase Price pursuant to Section 4.3 or to the extent (but only up to such amount) the underlying matters are accrued for indemnification and identified with specificity on the Closing Statement. (e) Buyer acknowledges that the indemnifications provided by Sellers and IP Sellers under Section 12.2 are being made by Noveon and Lubrizol on behalf of all Sellers and IP Sellers, and Noveon and Lubrizol are the only Parties available to the Buyer or any Indemnitee, as Indemnified Parties for claims of indemnification against the case may be, may seek indemnification for its Indemnifiable Losses only from the Escrow Amount (Sellers and pursuant to the terms of the Escrow Agreement); (iii) Seller shall not be liable for any Indemnifiable Losses that was not submitted within the survival period set forth in Section 9.04; and (iv) Buyer or any Indemnitee shall be entitled to receive (out of the Escrow Amount) any amount that: (A) has been determined by a court of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an IndemniteeIP Sellers.

Limitation of Indemnification. Notwithstanding anything to the contrary in this Agreement: (a) Except for (i) claims for indemnification with respect to any inaccuracy in or breach of any Seller Fundamental Representations, or the representations and warranties in Sections 4.14 (Taxes), 4.22 (Employee Benefits) and 4.27 (Environmental), or (ii) in the case of fraud or intentional misrepresentation, the Purchaser Indemnified Parties shall not be liable entitled to indemnification for any Indemnifiable Indemnified Losses pursuant to this Agreement (A) in the aggregate greater than the Escrow Amount and (B) other than Indemnifiable Losses with respect to the Purchase Price Adjustment Schedule which may be recovered in full, unless arising under Section 7.2 until the aggregate amount of all such Indemnifiable Losses pursuant of the Purchaser Indemnified Parties’ claims for indemnification exceeds $50,000 (the “Buyer Threshold”) and thereafter the Purchaser Indemnified Parties shall be entitled to this Agreement indemnification only for which amounts in excess of the Buyer Threshold. In addition, no one Claim for indemnification is sought exceeds on a cumulative basis Fifty shall be made for less than Five Thousand Dollars ($50,0005,000). (b) Except for (i) claims for indemnification with respect to any inaccuracy in or breach of any Buyer Fundamental Representations or (ii) in the “Indemnity Basket”); provided thatcase of fraud or intentional misrepresentation, if the Seller Indemnified Parties shall not be entitled to indemnification for any Indemnified Losses arising under Section 7.3 until the aggregate amount of all Indemnifiable Losses of the Seller Indemnified Parties’ claims for indemnification exceeds $50,000 (the Indemnity Basket, Buyers or “Seller Threshold”) and thereafter the Indemnitees, as the case may be, Seller Indemnified Parties shall be entitled to indemnification only for all such Indemnifiable Lossesamounts in excess of the Seller Threshold. In addition, without regard no one Claim for indemnification shall be made for less than Five Thousand Dollars ($5,000). (c) The maximum aggregate indemnification amount to which the Indemnity BasketSeller Indemnified Parties may be entitled under this Agreement for Indemnified Losses arising under Section 7.3 shall be an amount equal to $1,500,000.00; provided, however, that the limitations in this Section 7.6(c) will not apply to any claims for indemnification (i) with respect to any inaccuracy in or breach of any Buyer Fundamental Representations or (ii) in the case of fraud or intentional misrepresentation. (d) The maximum aggregate indemnification amount to which the Buyer Indemnified Parties may be entitled under this Agreement for Indemnified Losses arising under Sections 7.2(a), (b) or (d) shall be an amount equal to $1,500,000.00; provided, however, that the limitations in this Section 7.6(d) will not apply to any Claim claims for indemnification (i) with respect to any inaccuracy in or breach of any Seller Fundamental Representations, or the representations and warranties in Sections 4.14 (Taxes), 4.22 (Employee Benefits) and 4.27 (Environmental), or (ii) in the case of fraud or intentional misrepresentation. (e) Indemnified Losses recoverable hereunder by the Buyer Indemnified Parties as a result of any inaccuracy in or breach of any Indemnitee, as representation or warranty made by the case may be, may seek indemnification for its Indemnifiable Losses only Seller in Section 4.27 (Environmental) shall be net of the amount of any recoveries actually received by the Buyer Indemnified Parties from the Escrow Amount lessor of the subject real property. Prior to seeking indemnification from the Seller for breaches any representation or warranty made by the Seller in Section 4.27 (Environmental), the Buyer Indemnified Parties will first use their commercially reasonable efforts to recover any applicable Indemnified Losses from the lessor of the subject real property; provided, however, that nothing contained herein shall be deemed to create an obligation on the part of the applicable Buyer Indemnified Party to engage in any form of litigation against any such lessor. (f) Subject to the other applicable limitations set forth in this Section 7.7, the aggregate indemnification amount to which the Buyer Indemnified Parties may be entitled to recover from the Seller under this Agreement for Indemnified Losses arising under Section 7.2 shall be limited to 87.5% of such Indemnified Losses if such Indemnified Losses are the result of both (i) an inaccuracy in or breach of any representation or warranty made by the Seller herein, and (ii) an inaccuracy in or breach of any representation or warranty made by Xxxxxx Xxxxxx in that certain Stock Purchase Agreement dated of even date herewith between Xxxxxx Xxxxxx and the Company (the “Xxxxxx SPA”). For the sake of clarity, the limitation in this Section 7.7(f) shall not limit the Buyer’s or the Company’s ability to collect any amounts it may otherwise be due from Xxxxxx Xxxxxx pursuant to the terms of the Escrow Agreement); (iii) Seller shall not be liable for any Indemnifiable Losses that was not submitted within the survival period set forth in Section 9.04; and (iv) Buyer or any Indemnitee shall be entitled to receive (out of the Escrow Amount) any amount that: (A) has been determined by a court of competent jurisdiction to be owing by Seller to Buyer or to an Indemnitee, or (B) that Seller has agreed in writing to be owing by Seller to Buyer or to an IndemniteeXxxxxx SPA.

Limitation of Indemnification. Notwithstanding anything EXECUTION (A) Subject to the contrary in this Agreement: Section 6.5(c) and (d) (i) Seller the Sellers shall not be liable for any Indemnifiable Losses pursuant to this Agreement (A) in the aggregate greater than the Escrow Amount and (B) other than Indemnifiable Losses with respect to the Purchase Price Adjustment Schedule which may be recovered in full, under Article VI unless the aggregate amount of Losses with respect to all such Indemnifiable Losses pursuant to this Agreement for which indemnification is sought misrepresentations or breaches of warranty exceeds on a cumulative basis Fifty Thousand Dollars ($50,000) (the “Indemnity Basket”); provided that, if the aggregate amount of all Indemnifiable Losses exceeds the Indemnity Basket, Buyers or the Indemnitees, as the case may be, shall be entitled to indemnification for all such Indemnifiable Losses, without regard 250,000 and then only to the Indemnity Basket; extent of such excess, and (ii) in any Claim for indemnification the maximum aggregate liability of Xxxxxx and Xxxxx Xxxxxxxxx under Article VI (after the Escrow Fund has been exhausted or distributed to the Sellers) shall be an additional $7,000,000. (B) Subject to Section 6.5(c) (i) the Buyer or Indemnified Parties shall have no recourse against any Indemnitee, as the case may be, may seek indemnification for its Indemnifiable Losses only from Passive Seller after the Escrow Amount has been exhausted or distributed to the Sellers, and (and ii) as among the Sellers, claims made against the Escrow Amount shall be borne by the Sellers pro rata in accordance with their ownership percentages on Schedule 1.2; provided, however, that the Buyer Indemnified Parties shall have recourse against the entire Escrow Amount with respect to such claims pursuant to the terms of this Agreement without regard to such pro rations. Xxxxxx and Xxxxx Xxxxxxxxx, jointly and severally, shall be liable for all of the Escrow Sellers' indemnification obligations under this Article VI. (C) Notwithstanding the provisions of Sections 6.5(a) and (b) or any other provision of this Agreement); (iii) , the Buyer Indemnified Parties' right to reimbursement under this Article VI versus any particular Passive Seller shall not be liable limited in any way with respect to Losses arising out of or related to any claim for indemnity that is based upon (i) a breach of, or inaccuracy in, any Indemnifiable Losses that was not submitted within representation or warranty made by such Passive Seller contained in any of the survival period set forth in Section 9.04; Passive Seller Sections, and (ivii) Buyer a breach of or unfulfillment of any agreement or covenant on the part of such Passive Seller under this Agreement. Notwithstanding the provisions of Sections 6.5(a) and (b) or any Indemnitee shall be entitled other provision of this Agreement, the rights of any Buyer Indemnified Party to receive (recover damages of any kind from a Passive Seller arising out of or related to a fraud committed by such Passive Seller shall not be limited in any way. (D) Notwithstanding the Escrow Amountprovisions of Sections 6.5(a) and 6.5(b) or any amount that: other provision of this Agreement, the Buyer Indemnified Parties' rights to reimbursement under this Article VI against Xxxxxx or Xxxxx Xxxxxxxxx shall not be limited in any way with respect to Losses arising out of or related to any claim for indemnity that is based upon (Ai) has been determined by a court breach of, or inaccuracy in, any warranty, representation, covenant or agreement of competent jurisdiction to be owing by the Sellers contained in the Passive Seller to Buyer or to an IndemniteeSections, or (Bii) that a breach or nonfulfillment of any agreement or covenant on the part of any Seller has agreed under this Agreement. Notwithstanding the provisions of Sections 6.5(a) and (b) or any other provision of this Agreement, the rights of any Buyer Indemnified Party to recover damages of any kind from Xxxxxx and Xxxxx Xxxxxxxxx arising out of or related to fraud committed by any Seller shall not be limited in writing to be owing by Seller to Buyer or to an Indemniteeany way.