Circuit City 2007 Annual Report Download - page 109

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the settlement shall be subject to the prior written consent of the indemnified party (which consent shall not be unreasonably withheld, delayed
or conditioned). If no such notice of intent to dispute and defend a third party claim or liability is given by the indemnifying party, or if such
good faith and diligent defense is not being or ceases to be conducted by the indemnifying party, the indemnified party shall have the right, at the
expense of the indemnifying party, to undertake the defense of such claim or liability (with counsel selected by the indemnified party), and to
compromise or settle it, exercising reasonable business judgment. If the third party claim or liability is one that by its nature cannot be defended
solely by the indemnifying party, then the indemnified party shall make available such information and assistance as the indemnifying party may
reasonably request and shall cooperate with the indemnifying party in such defense, at the expense of the indemnifying party.
9.6
Exclusive Remedy . After the Internet Closing Date, the indemnification provisions set forth in this Article 9 shall
constitute the exclusive remedies of the parties with respect to any breach of the representations, warranties, agreements, covenants and
obligations set forth herein or in any certificate or schedule delivered by any party pursuant hereto (other than injunctive or other equitable
relief), and with respect to any and all claims arising from or relating to any of the foregoing; provided , however , that nothing in this
Section 9.6 shall limit in any way any claims brought by any party based on fraud or knowing and deliberate breach (any such breach to be
proven by clear and convincing evidence).
9.7
Indemnification by the Prior Owners . The Seller agrees to promptly pay, or cause to be paid, to the applicable Buyer by
wire transfer of immediately available funds, to such account or accounts designated in writing by Systemax to the Seller, any amounts received
by Specialty Equity, LLC, a Delaware limited liability company (“ Specialty Equity ”) or any of its Affiliates, pursuant to the Stock Purchase
Agreement, dated December 7, 2007, among Specialty Equity, and the former stockholders of CompUSA Inc. (the “ Stock Purchase Agreement
”),
solely to the extent that such amounts were recovered by the Seller under Article VIII (Indemnification) of the Stock Purchase Agreement and
such amounts were paid in respect of claims with respect to the Purchased Internet Assets or the applicable Purchased Real Estate Assets. The
Seller shall cooperate in good faith with the Buyers and Systemax to cause to be made any claim for indemnification under the Stock Purchase
Agreement which relates to the Purchased Internet Assets or the Purchased Real Estate Assets. Any allocation of amounts received pursuant to
the Stock Purchase Agreement between the Transferred Businesses and the Retained Businesses shall be made by the Seller in good faith.
ARTICLE 10. MISCELLANEOUS .
10.1
Confidentiality .
(a)
Terms of the Agreement . The terms of this Agreement shall be considered Confidential Information of all Parties;
provided , that, notwithstanding anything herein to the contrary, any Party may disclose the terms of this Agreement and file a copy of this
Agreement with appropriate regulatory authorities to the extent necessary to comply with any obligation it may have under any Applicable Law.
37