WITH THEIR TERMS;
(XI)
ISSUE ANY SHARES OF STOCK OR STOCK EQUIVALENTS;
(XII)
SUBJECT ITS ASSETS TO ANY MATERIAL ENCUMBRANCES;
(XIII)
DIRECTLY OR INDIRECTLY MAKE ANY DIVIDEND OR OTHER DISTRIBUTION TO
SHAREHOLDERS OR REPURCHASE OR REACQUIRE ANY EQUITY INTERESTS;
(XIV)
CLOSE THE STORE / HEADQUARTERS;
(XV)
ISSUE ANY PURCHASE ORDER FOR NON-BRANDED GOODS IN EXCESS OF
$100,000;
(XVI)
INCUR ANY INDEBTEDNESS OTHER THAN UNDER CURRENT CREDIT ARRANGEMENTS
PROVIDED TO PURCHASER; OR
(XVII)
AUTHORIZE ANY OF THE FOREGOING, OR COMMIT OR AGREE TO TAKE ACTIONS,
WHETHER IN WRITING OR OTHERWISE, TO DO ANY OF THE FOREGOING.
5.3
NOTICES AND CONSENTS.
AS PROMPTLY AS PRACTICABLE FOLLOWING THE
EXECUTION HEREOF, EACH OF THE PARTIES WILL DELIVER ANY NOTICES TO, MAKE ANY
FILINGS WITH AND USE ITS COMMERCIALLY REASONABLE EFFORTS TO OBTAIN ANY
AUTHORIZATIONS, CONSENTS AND APPROVALS OF GOVERNMENTAL BODIES REQUIRED IN
CONNECTION WITH THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
DURING THE PRE-CLOSING PERIOD, SELLER AND PURCHASER SHALL REASONABLY
COOPERATE WITH ONE ANOTHER: (A) IN OBTAINING ALL CONSENTS IDENTIFIED IN SECTION
3.22 OF THE DISCLOSURE SCHEDULE, (B) WITH RESPECT TO ALL FILINGS THAT PURCHASER
IS REQUIRED BY ANY LEGAL REQUIREMENT TO MAKE IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY, AND (C) IN DELIVERING ANY NOTICES DEEMED NECESSARY OR
DESIRABLE BY PURCHASER OR SELLER IN CONNECTION WITH THE BANKRUPTCY CASE.
SELLER
SHALL PROMPTLY DELIVER TO PURCHASER COPIES OF ALL
29
FILINGS, CORRESPONDENCE AND ORDERS TO AND FROM ANY GOVERNMENTAL BODY IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY.
5.4
COMMERCIALLY REASONABLE EFFORTS.
SUBJECT TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT:
(A)
DURING THE PRE-CLOSING PERIOD, EACH OF SELLER AND PURCHASER SHALL
(I) USE ITS COMMERCIALLY REASONABLE EFFORTS (A) TO CAUSE THE CONDITIONS IN
ARTICLE 7 AND ARTICLE 8, RESPECTIVELY, TO BE SATISFIED, (B) TO DELIVER OR CAUSE
TO BE DELIVERED AT THE CLOSING THE ITEMS TO BE DELIVERED BY SELLER AND PURCHASER
PURSUANT TO SECTION 2.3(B), (C) OBTAIN THE RIGHT TO ASSUME AND ASSIGN, OR
OTHERWISE OBTAIN CONSENT OF THE APPLICABLE LICENSORS WITH RESPECT TO, THE KEY
SOFTWARE LICENSES SO AS TO ASSURE THE CONTINUED AVAILABILITY OF SUCH LICENSED
SOFTWARE TO PURCHASER FROM AND AFTER THE CLOSING, AND (D) TO TAKE ALL OTHER
ACTIONS TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY, AND (II) NOT TAKE
ANY ACTION THAT WILL HAVE THE EFFECT OF UNREASONABLY DELAYING, IMPAIRING OR
IMPEDING THE RECEIPT OF ANY AUTHORIZATIONS, CONSENTS, ORDERS OR APPROVALS TO BE
SOUGHT PURSUANT TO THIS AGREEMENT.
(B)
FROM AND AFTER THE CLOSING, SELLER AND PURCHASER SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO DELIVER OR CAUSE TO BE DELIVERED SUCH
ADDITIONAL DOCUMENTS AND OTHER PAPERS AND TO TAKE OR CAUSE TO BE TAKEN SUCH
FURTHER ACTIONS AS MAY BE NECESSARY, PROPER OR ADVISABLE TO MAKE EFFECTIVE THE
TRANSACTIONS CONTEMPLATED HEREBY AND TO CARRY OUT THE PROVISIONS HEREOF.
5.5
Notice of Developments.
Seller shall promptly notify Purchaser in
writing of any change or development that would cause any of the representations
and warranties herein not to be true and correct in any material respect or any
other