THIS
AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY THE SELLER AND, ASSUMING THE
DUE AUTHORIZATION, EXECUTION AND DELIVERY BY THE BUYER AND SYSTEMAX, THIS
AGREEMENT CONSTITUTES THE LEGAL, VALID AND BINDING OBLIGATION OF THE SELLER,
ENFORCEABLE AGAINST THE SELLER IN ACCORDANCE WITH ITS TERMS, SUBJECT TO
APPLICABLE BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, REORGANIZATION,
MORATORIUM AND SIMILAR LAWS AFFECTING CREDITORS' RIGHTS AND REMEDIES GENERALLY
AND SUBJECT, AS TO ENFORCEABILITY, TO GENERAL PRINCIPLES OF EQUITY, INCLUDING,
WITHOUT LIMITATION, PRINCIPLES OF COMMERCIAL REASONABLENESS, GOOD FAITH AND FAIR
DEALING (REGARDLESS OF WHETHER ENFORCEMENT IS SOUGHT IN A PROCEEDING AT LAW OR
IN EQUITY).
(D)
THE SELLER OWNS, DIRECTLY OR INDIRECTLY, ALL OF THE ISSUED AND
OUTSTANDING CAPITAL STOCK OR OTHER EQUITY INTERESTS IN EACH MEMBER OF THE REAL
ESTATE SELLER GROUP, IN EACH CASE FREE AND CLEAR OF ANY LIEN AND THE SELLER HAS
ALL RIGHTS TO VOTE AND TRANSFER SUCH CAPITAL STOCK AND EQUITY INTERESTS WITHOUT
RESTRICTION.
23
4.2
NO VIOLATION.
NEITHER THE EXECUTION AND DELIVERY BY THE SELLER OF
THIS AGREEMENT, THE EXECUTION AND DELIVERY OF THE APPLICABLE REAL ESTATE
TRANSFER INSTRUMENTS, NOR THE CONSUMMATION BY THE SELLER OF THE TRANSACTIONS
CONTEMPLATED HEREBY: (I) VIOLATES OR WILL VIOLATE ANY APPLICABLE LAW WITH
RESPECT TO THE APPLICABLE MEMBERS OF THE REAL ESTATE SELLER GROUP; (II) VIOLATES
OR WILL VIOLATE ANY ORDER OF GOVERNMENTAL AUTHORITY APPLICABLE TO THE APPLICABLE
MEMBERS OF THE REAL ESTATE SELLER GROUP; (III) CONFLICTS OR WILL CONFLICT WITH,
OR RESULTS OR WILL RESULT IN A BREACH OF OR DEFAULT UNDER, THE ORGANIZATIONAL
DOCUMENTS OF ANY APPLICABLE MEMBER OF THE REAL ESTATE SELLER GROUP; OR
(IV) REQUIRES ANY CONSENT, AUTHORIZATION, OR APPROVAL FROM, OR REGISTRATION OR
FILING WITH, ANY GOVERNMENTAL AUTHORITY (NOT OBTAINED OR MADE AS OF THE CLOSING
DATE), EXCEPT
4.3
TAXES.
(A)
EXCEPT FOR CERTAIN ONGOING STATE SALES TAX AUDITS LISTED ON
SECTION 4.3(A) OF THE SELLER DISCLOSURE SCHEDULE, NO LEGAL PROCEEDING OR OTHER
CLAIM FOR ASSESSMENT OR COLLECTION OF TAXES RELATING TO OR OTHERWISE AFFECTING
THE APPLICABLE PURCHASED REAL ESTATE ASSETS IS CURRENTLY PENDING OR, TO THE
SELLER'S KNOWLEDGE, HAS BEEN ASSERTED AGAINST THE APPLICABLE MEMBERS OF THE REAL
ESTATE SELLER GROUP.
(B)
ALL TAX RETURNS REQUIRED TO BE FILED ON OR BEFORE THE CLOSING DATE
RELATING TO THE PURCHASED REAL ESTATE ASSETS HAVE BEEN OR WILL BE FILED ON A
TIMELY BASIS IN ALL JURISDICTIONS IN WHICH SUCH TAX RETURNS ARE REQUIRED TO BE
FILED (TAKING INTO ACCOUNT ANY EXTENSION OF TIME TO FILE GRANTED OR TO BE
OBTAINED ON BEHALF OF THE SELLER GROUP) AND ALL TAXES SHOWN AS DUE AND OWING ON
EACH SUCH TAX RETURN HAVE BEEN PAID IN FULL.
ALL SUCH TAX RETURNS WERE CORRECT
AND COMPLETE IN ALL MATERIAL RESPECTS.
(C)
THE APPLICABLE MEMBERS OF THE REAL ESTATE SELLER GROUP HAVE NOT
ENTERED INTO ANY AGREEMENT, WHETHER OR NOT WRITTEN, PROVIDING FOR THE PAYMENT OF
TAXES OR ENTITLEMENT TO REFUNDS AND RELATED MATTERS WITH ANY OTHER PARTY
RELATING TO OR OTHERWISE AFFECTING THE PURCHASED REAL ESTATE ASSETS.
NONE OF
THE PURCHASED