AND THE APPLICABLE REAL ESTATE BUYER WILL HAVE FULL,
UNFETTERED, UNENCUMBERED RIGHT TO USE AND OCCUPY THE PREMISES LEASED UNDER SUCH
LEASE.
OTHER THAN THE PERMITTED LIENS, NO LEASE HAS BEEN PLEDGED, ENCUMBERED,
HYPOTHECATED OR OTHERWISE TRANSFERRED IN ANY WAY.
ARTICLE 5. COVENANTS OF THE SELLER.
Seller hereby makes the following covenants and agreements:
5.1
AUDITED FINANCIAL INFORMATION.
THE SELLER SHALL COOPERATE WITH THE
BUYERS' OR SYSTEMAX'S REASONABLE REQUESTS IN CONNECTION WITH THE PREPARATION BY
THE APPLICABLE BUYER OR SYSTEMAX OF ANY AUDITED FINANCIAL INFORMATION RELATING
TO THE TRANSFERRED BUSINESSES, INCLUDING, WITHOUT LIMITATION, THE PREPARATION,
ON BEHALF OF A BUYER OR SYSTEMAX, OF A MANUALLY SIGNED ACCOUNTANTS' REPORT FROM
NATIONALLY RECOGNIZED INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS, REQUIRED TO BE
FILED BY SYSTEMAX WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
ALL
OUT-OF-POCKET COSTS SUSTAINED BY ANY PARTY IN CONNECTION THEREWITH, INCLUDING,
WITHOUT LIMITATION, SUCH COSTS IN CONNECTION WITH AUDITING OF THE FINANCIAL
INFORMATION OF THE TRANSFERRED BUSINESSES, SHALL BE BORNE BY THE BUYERS.
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5.2
RETAINED LIABILITIES.
AS AMONG THE BUYERS, SYSTEMAX AND THE SELLER,
THE SELLER SHALL PAY AND PERFORM ANY AND ALL OF THE RETAINED LIABILITIES WHEN
AND AS THEY BECOME DUE.
5.3
CONDUCT OF THE BUSINESSES.
WITHOUT LIMITING THE FOREGOING, BETWEEN
THE DATE HEREOF AND UNTIL THE INTERNET CLOSING DATE OR A REAL ESTATE CLOSING
DATE, AS APPLICABLE, EXCEPT AS REQUIRED OR EXPRESSLY PERMITTED PURSUANT TO THE
TERMS HEREOF OR AS THE APPLICABLE BUYER SHALL HAVE CONSENTED TO IN WRITING IN
ADVANCE, THE SELLER SHALL NOT, AND SHALL NOT PERMIT ANY OF MEMBER OF THE SELLER
GROUP TO:
(A)
ENTER INTO, TERMINATE, AMEND, MODIFY OR WAIVE ANY TERM OF ANY
MATERIAL TRANSACTION, OR ANY CLIENT CONTRACT OR ANY SIMILAR CONTRACT OR
ARRANGEMENT WITH RESPECT TO THE TRANSFERRED INTERNET BUSINESS OR THE TRANSFERRED
REAL ESTATE BUSINESS CONDUCTED AT ANY OF THE ACQUIRED PREMISES, AS APPLICABLE;
PROVIDED, HOWEVER, THAT THE SELLER GROUP SHALL BE PERMITTED TO TERMINATE, AMEND,
MODIFY OR WAIVE TERMS CONSISTENT WITH ITS PLAN TO WIND DOWN ITS BUSINESS AND
OTHERWISE NOT INCONSISTENT WITH THE TERMS OF THIS AGREEMENT;
(B)
EXCEPT AS PROVIDED FOR HEREIN, RENEW (UNLESS REQUESTED IN WRITING BY
THE APPLICABLE BUYER OR TO EXTEND THE TERM OF THE LEASE BEYOND TEN YEARS),
TERMINATE, AMEND, MODIFY OR WAIVE ANY TERM OF THE LEASES;
(C)
MORTGAGE, PLEDGE OR SUBJECT ANY OF THE PURCHASED INTERNET ASSETS OR
THE APPLICABLE PURCHASED REAL ESTATE ASSETS, OR ANY PART THEREOF, TO ANY LIEN OR
SUFFER TO EXIST ANY SUCH LIEN, OTHER THAN (X) LIENS WHICH SHALL BE TERMINATED AT
OR BEFORE THE RESPECTIVE CLOSING DATE AND (Y) PERMITTED LIENS;
(D)
PERFORM ANY "GOING OUT OF BUSINESS SALES" WITH RESPECT TO ANY OF THE
PURCHASED REAL ESTATE ASSETS AT ANY OF THE ACQUIRED PREMISES; OR
(E)
COMMIT TO DO ANY OF THE FOREGOING.
5.4
ACCESS TO INFORMATION.
FROM THE DATE HEREOF UNTIL ANY REAL ESTATE
CLOSING, THE SELLER SHALL AFFORD TO THE REAL ESTATE BUYER AND ITS AUTHORIZED
PERSONNEL AND REPRESENTATIVES REASONABLE ACCESS DURING NORMAL BUSINESS HOURS
(EXCEPT AS RESTRICTED BY ANY