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
(B)
SELLER OBLIGATIONS.
FOLLOWING THE INTERNET CLOSING DATE, THE SELLER
SHALL NOT DISCLOSE