Circuit City 2007 Annual Report Download - page 107

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(g)
any use of retained Specified Data by the Seller in violation of the restrictions set forth in Section 2.8(e).
9.3
Indemnification by the Buyers and Systemax . Each of the Buyers and Systemax jointly and severally agree to indemnify
and hold the Seller Indemnified Parties harmless from and against any Losses which may be sustained or suffered by any of them arising out of
or based upon any of the following matters (the “ Seller Losses ”):
(a)
any breach of any representation or warranty made by a Buyer or Systemax in Article 6 of this Agreement;
(b)
any fraud or any knowing and deliberate breach (any such breach to be proven by clear and convincing evidence) by a
Buyer or Systemax with respect to any of their representations or warranties in this Agreement or in any certificate or schedule delivered by a
Buyer or Systemax pursuant hereto;
(c)
any breach by a Buyer or Systemax of any agreement or covenant set forth in this Agreement;
(d)
any failure by a Buyer or Systemax to perform and discharge any Assumed Liabilities as set forth in this Agreement; and
(e)
the sale, transfer or assignment to any Buyer of, or any Buyer’s or any of its affiliates’ acceptance of, access to or use of,
Specified Data; notwithstanding anything to the contrary in this Agreement, the Seller is not obligated to indemnify or hold any Buyer
Indemnified Party harmless from and against any Losses which may be sustained or suffered by any Buyer Indemnified Party arising out of or
based upon the sale, transfer or assignment to any Buyer of, or any Buyer’sor any of its affiliates’ acceptance of, access to or use of, Specified
Data.
9.4
Limits on Indemnification . Notwithstanding anything contained herein to the contrary,
(a)
(i) (A) the Seller shall not have any liability under Sections 9.2(a), 9.2(d) or 9.2(g) until the amount of indemnifiable
Buyer Losses under such Sections, in the aggregate, exceeds Five Hundred Thousand dollars ($500,000) (the “ Threshold ”), at which time the
total amount of such Buyer Losses shall be recoverable hereunder and (B) the Seller shall not have any liability under Section 9.2(b) until the
amount of indemnifiable Buyer Losses thereunder, in the aggregate, exceeds Two Million dollars ($2,000,000), and (ii) no Buyer or Systemax
shall have any liability under Sections 9.3(a) or 9.3(c) of this Agreement until the amount of indemnifiable Seller Losses thereunder, in the
aggregate, exceeds the Threshold, at which time the total amount of such Seller Losses shall be recoverable hereunder;
(b)
the aggregate obligations of the Buyers and Systemax to indemnify, defend and hold the Seller Indemnified Parties
harmless for indemnification claims made pursuant to Section 9.3(e) after the second anniversary of the Internet Closing Date shall be limited to
Ten Million dollars ($10,000,000) (the “ Indemnity Cap Amount ”); provided , that the Indemnity Cap
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