CompUSA 2014 Annual Report Download - page 179

(iii)
In connection with any claim for indemnification based upon a claim, assessment or deficiency for any Tax
which arises from adjustments having the effect only of shifting income, credits and/or deductions from one fiscal period to another;
(iv)
To the extent of the value of any net Tax benefit realized (by reason of a Tax deduction, basis reductions,
shifting of income, credits and/or deductions or otherwise) by the Buyer or any of the Companies in connection with the Loss that forms the
basis of the Buyer ’ s claim for indemnification hereunder;
(v)
For any amounts for which it has already been paid; i.e. the Buyer is not entitled to recover more than once
for any Loss;
(vi) To the extent of any actual recovery from any third Person in respect of such indemnifiable Loss;
(vii)
With respect to any claim for indemnification under Section 8.2(a), unless the Buyer has given the Seller
written notice of such claim, setting forth in reasonable detail the facts and circumstances pertaining thereto, (A) as soon as practicable
following the Buyer ’
s discovery of such claim, but in no event later than twenty days after Buyer has notice, unless the failure to give notice
does not adversely affect Seller ’
s ability to mitigate such Losses and (B) with respect to a claim under Section 8.2(a)(i), prior to the applicable
date set forth in Section 8.1;
(viii)
To the extent of any insurance proceeds actually received by the Buyer or any of the Companies in
connection with the facts giving rise to such indemnification;
(ix)
If and only if the Closing occurs, if the existence of such liability, the breach of representation, warranty or
covenant or the falsity of the representation upon which such liability would be based is known by the Buyer prior to the Closing; and
(x) With respect to any claim as to which the Buyer otherwise may be entitled to indemnification hereunder:
(A)
For any Losses of less than Five Thousand Dollars ($5,000) individually or when aggregated with
Losses arising out of or are related to the same event or circumstance;
(B)
Until such Losses exceed one (1) percent of the Purchase Price, as adjusted pursuant to Section 2.4
(the “Basket”), in which event the Seller shall be liable for all such Losses from the first Dollar of Losses; and
(C)
For any Losses in excess of 15% percent of the Purchase Price, as adjusted pursuant to Section 2.4
(the “ Cap ” ).
(c)
Notwithstanding Section 8.2(b)(x), the Cap and the Basket would not apply to Losses related to the following, and
any such Losses would be capped at the Purchase Price and indemnifiable from the first Dollar of Loss: (i) breaches of Sections 3.1 (Seller
Organization and Power); 3.2 (Purchased Equity); 3.7(b)-(
g) (Organizational Matters; Equity); 3.10 (Tax Matters); 3.22 (Brokerage); 5.12 (Tax
Matters) or 5.17 (Non-Competition; Non-
solicitation); (ii) any liability for Taxes of any Company based on matters and activities that occurred
prior to the Closing Date; (iii) any Environmental Claims at the 770 S. 70th Street, Milwaukee, Wisconsin property arising out of actions or
omissions by any Company occurring prior to the Closing Date; (iv) any liability of any Company to any appropriate Governmental Entity (in
excess of the accrual on the Final Closing Date Balance Sheet) related to any Escheatment Payment paid, required to be paid or that should have
been paid prior to the Closing Date and/or based on matters and activities of any Company that occurred prior to the Closing Date
(notwithstanding any disclosure thereof in the Disclosure Schedules); (v) any liability of Buyer or any Company with respect to the Seller ’
s
Employees; (vi) any and all Taxes imposed on any Company that arises out of the disposition of the property at 770 S. 70th Street, Milwaukee,
Wisconsin.
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