Common use of Access; Conduct of Business Prior to Closing Clause in Contracts

Access; Conduct of Business Prior to Closing. In addition to any other covenants of the Company or the Shareholders in this Agreement, the Company covenants and agrees that from and after the date of this Agreement to the Closing: (a) The Company and its Subsidiaries shall make available (at reasonable times and upon reasonable notice (and accompanied by representatives of the Company)) for inspection by Buyer and its Representatives, corporate records, books of accounts, Contracts and all other documents reasonably requested by Buyer, and shall permit Buyer and its Representatives reasonable access to the properties of the Company and its Subsidiaries in order to permit Buyer and such Representatives to make reasonable inspection and examination of the business, operations and affairs of the Company and its Subsidiaries and to facilitate the transactions contemplated by this Agreement and related transition matters. The Company and its Subsidiaries shall further cause their Representatives to be available upon reasonable notice to answer questions of Buyer and its Representatives concerning the business, operations and affairs of the Company and its Subsidiaries, and to make available all relevant books and records in connection with such inspection and examination. Without limiting the generality of the foregoing, the Company shall cause PWC to allow Buyer's accountants to observe the audit of the February 3, 2001 financial statements required by Section 10.01(o) hereof. (b) Except as otherwise provided in this Agreement, the Company will not, and will not permit any of its Subsidiaries to, without the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed): (i) enter into or amend any lease of Real Property; or enter into or amend any other agreement (other than in the ordinary course of business) materially affecting or in any way pertaining to the assets or business of the Company or its Subsidiaries; (ii) sell, transfer, dispose of, encumber or abandon any material assets or enter into any agreement to do any of the foregoing, provided that the Company or any of its Subsidiaries may sell Inventory in the ordinary course consistent with past practice; (iii) take any action of the nature described in Section 8.01(w); (iv) enter into any merger or consolidation with any Person, or engage in any new business or invest in, or make a loan, advance or capital contribution to, any Person; (v) settle any pending litigation or obtain any releases of threatened actions or proceedings other than the threatened litigation described on Schedule 8.01(j); (vi) delay or accelerate payment of any amounts payable under any Store Lease beyond or in advance of their due dates or the dates when such amounts would have been paid in the ordinary course of business consistent with past practice; (vii) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or any of its Subsidiaries; or (viii) issue, repurchase or redeem or commit to issue, repurchase or redeem, any shares of the Company's capital stock, any options or other rights to acquire such stock or any securities convertible into or exchangeable for such stock, except as may be required by Section 15.05 hereto. (c) The Company shall make all capital expenditures set forth in Schedule 15.01(c) in connection with the completion of the Stores set forth in such Schedule. (d) Without limiting the generality of the foregoing, the Company and its Subsidiaries shall in all other respects, operate their respective businesses in the usual and ordinary course, use commercially reasonable effects to preserve the goodwill of suppliers, customers, employees and others having relations with the Company and its Subsidiaries, and not to commit or otherwise agree to take any action prohibited hereby. (e) The Company and its Subsidiaries shall: (i) file all Tax returns, elections or information statements with respect to any liabilities for Taxes or other matters relating to Taxes, which pursuant to applicable Law must be filed prior to the Closing Date; (ii) promptly upon filing provide copies of any such Tax returns, elections or information statements to Buyer; (iii) make any such Tax elections or other discretionary positions with respect to Taxes taken by or affecting the Company or any Subsidiary only upon prior consultation with and consent of Buyer; and (iv) not amend any Tax return or file any carry back claims.

Access; Conduct of Business Prior to Closing. In addition to any other covenants of the Company or the Shareholders Seller in this Agreement, the Company Seller hereby covenants and agrees that from and after the date of this Agreement to the Closing: (ai) The Seller shall cause the Company and its Subsidiaries shall to make available (at reasonable times and upon reasonable notice (and accompanied by representatives of the Company)) for inspection by Buyer and its Representativesrepresentatives, during normal business hours, corporate records, books of accounts, Contracts and all other documents reasonably requested by Buyer, and shall permit Buyer and its Representatives representatives reasonable access to the properties of the Company and its Subsidiaries in order to permit Buyer and such Representatives its representatives to make reasonable inspection and examination of the business, operations and affairs and Business of the Company and its Subsidiaries and to facilitate the transactions contemplated by this Agreement and related transition matters; provided, however, that Buyer shall have executed an Access and Indemnity Agreement prepared by Seller prior to accessing any of Seller's properties. The Seller shall cause the Company and its Subsidiaries shall further cause their Representatives to be available upon reasonable notice to answer questions of Buyer and its Representatives representatives concerning the business, operations and affairs and Business of the Company and its SubsidiariesCompany, and to shall cause the Company to, make available all relevant books and records in connection with such inspection and examination. Without limiting the generality of the foregoing, the Company shall cause PWC to allow Buyer's accountants to observe the audit of the February 3, 2001 financial statements required by Section 10.01(o) hereof. (bii) Except as otherwise provided in this Agreement, the Company will not, and will not permit any of its Subsidiaries to, without the prior written consent of Buyer (which with such consent shall not to be unreasonably withheld delayed, withheld, or delayedconditioned): (iA) enter into or amend any lease of Real Propertyreal property; or enter into or amend any other agreement (other than in the ordinary course Ordinary Course of businessBusiness) materially affecting or in any way pertaining to the Company's assets or business of the Company or its SubsidiariesBusiness; (iiB) sell, transfer, dispose of, encumber or abandon any material assets or enter into any agreement to do any of the foregoing, provided that the Company or any of its Subsidiaries may sell Inventory inventory in the ordinary course consistent with past practice; (iiiC) take any action of the nature described in Section 8.01(w3.1(j); (ivD) enter into any merger or consolidation with any Personperson, or engage in any new business or invest in, or make a loan, advance or capital contribution to, any Personperson; (vE) settle any pending litigation or obtain any releases of threatened actions or proceedings other than proceedings, except in the threatened litigation described on Schedule 8.01(j)Ordinary Course of Business; (viF) knowingly accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates when the same would reasonably be expected to have been collected in the Ordinary Course of Business consistent with past practice if the amount of any such note or account receivable, or series of related notes or accounts receivable, exceeds $25,000 individually or $50,000 in the aggregate; (G) except as set forth on Schedule 4.1(d)(ii)(G), delay or knowingly accelerate payment of any amounts accounts payable under any Store Lease or other liabilities beyond or in advance of their due dates or the dates when such amounts liabilities would reasonably be expected to have been paid in the ordinary course Ordinary Course of business Business consistent with past practicepractice if the amount of any such account payable or other liability, or series of related accounts payable or other liabilities, exceeds $25,000 individually or $50,000 in the aggregate; (viiH) declare, set aside, make or pay any dividend or other distribution in respect of the Company's capital stock of the Company or any of its Subsidiariesstock; or (viiiI) issue, repurchase or redeem or commit to issue, repurchase or redeem, any shares of the Companycompany's capital stock, any options or other rights to acquire such stock or any securities convertible into or exchangeable for such stock, except as may be required by Section 15.05 hereto. (c) The Company shall make all capital expenditures set forth in Schedule 15.01(c) in connection with the completion of the Stores set forth in such Schedule. (d) Without limiting the generality of the foregoing, the Company and its Subsidiaries shall in all other respects, operate their respective businesses in the usual and ordinary course, use commercially reasonable effects to preserve the goodwill of suppliers, customers, employees and others having relations with the Company and its Subsidiaries, and not to commit or otherwise agree to take any action prohibited hereby. (e) The Company and its Subsidiaries shall: (i) file all Tax returns, elections or information statements with respect to any liabilities for Taxes or other matters relating to Taxes, which pursuant to applicable Law must be filed prior to the Closing Date; (ii) promptly upon filing provide copies of any such Tax returns, elections or information statements to Buyer; (iii) make any such Tax elections or other discretionary positions with respect to Taxes taken by or affecting the Company or any Subsidiary only upon prior consultation with and consent of Buyer; and (iv) not amend any Tax return or file any carry back claims.

Access; Conduct of Business Prior to Closing. In addition to any other covenants of the Inso Subs and the Company or the Shareholders in this Agreement, the Inso Subs and the Company covenants each covenant and agrees agree that from and after the date of this Agreement to the Closing: (a) The Inso Subs shall, and the Company and its Subsidiaries shall cause the Inso Subs to, make available (at reasonable times and upon reasonable notice (and accompanied by representatives of the Company)) for inspection by Buyer and its Representatives, during normal business hours and solely through mutually agreed upon Representatives of the Inso Subs and the Company, corporate records, books of accounts, Contracts and all other documents reasonably requested by Buyer, and shall permit Buyer and its Representatives reasonable access to the properties of the Company and its Subsidiaries Inso Subs in order to permit Buyer and such Representatives to make reasonable inspection and examination of the business, operations and affairs of the Company and its Subsidiaries Inso Subs and to facilitate the transactions contemplated by this Agreement and related transition matters. The Inso Subs shall, and the Company and its Subsidiaries shall further cause the Inso Subs to, cause their Representatives to be available upon reasonable notice to answer questions of Buyer and its Representatives concerning the business, operations and affairs of the Company and its SubsidiariesInso Subs, and to shall, and the Company shall cause the Inso Subs to, make available all relevant books and records in connection with such inspection and examination. Without limiting the generality of the foregoing, the Company shall cause PWC to allow Buyer's accountants to observe the audit of the February 3, 2001 financial statements required by Section 10.01(o) hereof. (b) The Inso Subs will maintain their corporate existence in good standing. (c) Except as otherwise provided in in, or contemplated by, this Agreement, the Company Inso Subs will not, and the Company will cause the Inso Subs not permit any of its Subsidiaries to, without the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed):Buyer: (i) enter into or amend any lease of Real Propertyreal property; or enter into or amend any other agreement (other than in the ordinary course of business) materially affecting or in any way pertaining to the Inso Subs' assets or business of the Company or its Subsidiariesbusiness; (ii) sell, transfer, dispose of, encumber or abandon any material assets or enter into any agreement to do any of the foregoing, provided that the Company or any of its Subsidiaries may sell Inventory except in the ordinary course consistent with past practice; (iii) take any action of the nature described in Section 8.01(w); (iv) enter into any merger or consolidation with any Person, or engage in any new business or invest in, or make a loan, advance or capital contribution to, any Person; (v) settle any pending litigation or obtain any releases of threatened actions or proceedings other than the threatened litigation described on Schedule 8.01(j); (vi) delay or accelerate payment of any amounts payable under any Store Lease beyond or in advance of their due dates or the dates when such amounts would have been paid in the ordinary course of business consistent with past practice; (vii) declare, set aside, make or pay any dividend or other distribution in respect of the capital stock of the Company or any of its Subsidiaries; or (viii) issue, repurchase or redeem or commit to issue, repurchase or redeem, any shares of the Company's capital stock, any options or other rights to acquire such stock or any securities convertible into or exchangeable for such stock, except as may be required by Section 15.05 hereto. (c) The Company shall make all capital expenditures set forth in Schedule 15.01(c) in connection with the completion of the Stores set forth in such Schedule. (d) Without limiting the generality of the foregoing, the Company and its Subsidiaries shall in all other respects, operate their respective businesses in the usual and ordinary course, use commercially reasonable effects to preserve the goodwill of suppliers, customers, employees and others having relations with the Company and its Subsidiaries, and not to commit or otherwise agree to take any action prohibited hereby. (e) The Company and its Subsidiaries shall: (i) file all Tax returns, elections or information statements with respect to any liabilities for Taxes or other matters relating to Taxes, which pursuant to applicable Law must be filed prior to the Closing Date; (ii) promptly upon filing provide copies of any such Tax returns, elections or information statements to Buyer; (iii) make any such Tax elections or other discretionary positions with respect to Taxes taken by or affecting the Company or any Subsidiary only upon prior consultation with and consent of Buyer; and (iv) not amend any Tax return or file any carry back claims.

Access; Conduct of Business Prior to Closing. In addition to any -------------------------------------------- other covenants of the Inso Subs and the Company or the Shareholders in this Agreement, the Inso Subs and the Company covenants each covenant and agrees agree that from and after the date of this Agreement to the Closing: (a) The Inso Subs shall, and the Company and its Subsidiaries shall cause the Inso Subs to, make available (at reasonable times and upon reasonable notice (and accompanied by representatives of the Company)) for inspection by Buyer and its Representatives, during normal business hours and solely through mutually agreed upon Representatives of the Inso Subs and the Company, corporate records, books of accounts, Contracts and all other documents reasonably requested by Buyer, and shall permit Buyer and its Representatives reasonable access to the properties of the Company and its Subsidiaries Inso Subs in order to permit Buyer and such Representatives to make reasonable inspection and examination of the business, operations and affairs of the Company and its Subsidiaries Inso Subs and to facilitate the transactions contemplated by this Agreement and related transition matters. The Inso Subs shall, and the Company and its Subsidiaries shall further cause the Inso Subs to, cause their Representatives to be available upon reasonable notice to answer questions of Buyer and its Representatives concerning the business, operations and affairs of the Company and its SubsidiariesInso Subs, and to shall, and the Company shall cause the Inso Subs to, make available all relevant books and records in connection with such inspection and examination. Without limiting the generality of the foregoing, the Company shall cause PWC to allow Buyer's accountants to observe the audit of the February 3, 2001 financial statements required by Section 10.01(o) hereof. (b) The Inso Subs will maintain their corporate existence in good standing. (c) Except as otherwise provided in in, or contemplated by, this Agreement, the Company Inso Subs will not, and the Company will cause the Inso Subs not permit any of its Subsidiaries to, without the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed):Buyer: (i) enter into or amend any lease of Real Propertyreal property; or enter into or amend any other agreement (other than in the ordinary course of business) materially affecting or in any way pertaining to the Inso Subs' assets or business of the Company or its Subsidiariesbusiness; (ii) sell, transfer, dispose of, encumber or abandon any material assets or enter into any agreement to do any of the foregoing, provided that the Company or any of its Subsidiaries may sell Inventory except in the ordinary course consistent with past practice; (iii) except as provided in Schedule 14.01(c)(iii), enter into any agreement granting any Person, other than an employee of the Inso Subs, access to the source code of Proprietary Software Products; (iv) take any other action of the nature described in Section 8.01(w8.01(y); (ivv) enter into any merger or consolidation with any Person, or engage in any new business or invest in, or make a loan, advance or capital contribution to, any Person; (vvi) settle any pending litigation or obtain any releases of threatened actions or proceedings other than the threatened litigation described on Schedule 8.01(j)proceedings; (vivii) accelerate or delay collection of any notes or accounts receivable in advance of or beyond their regular due dates when the same would have been collected in the ordinary course of business consistent with past practice if the individual amount of any such note or account receivable, or series of related notes or accounts receivable, exceeds $10,000; or (viii) delay or accelerate payment of any amounts accounts payable under any Store Lease or other liabilities beyond or in advance of their due dates or the dates when such amounts liabilities would have been paid in the ordinary course of business consistent with past practice; (vii) declare, set aside, make or pay practice if the individual amount of any dividend such account payable or other distribution in respect liability, or series of the capital stock of the Company or any of its Subsidiaries; or (viii) issue, repurchase or redeem or commit to issue, repurchase or redeem, any shares of the Company's capital stock, any options related accounts payable or other rights to acquire such stock or any securities convertible into or exchangeable for such stockliabilities, except as may be required by Section 15.05 hereto. (c) The Company shall make all capital expenditures set forth in Schedule 15.01(c) in connection with the completion of the Stores set forth in such Scheduleexceeds $10,000. (d) The Inso Subs and the Company will maintain the tangible assets of the Inso Subs and the Real Property in good condition and repair. (e) The Inso Subs and the Company will use all reasonable efforts to preserve for Buyer the goodwill of suppliers, customers and others having relationships with the Inso Subs. The Inso Subs will maintain their books and records in a manner consistent with past practice. (f) The Inso Subs and the Company will use reasonable efforts to keep available the services of the Inso Subs' employees. (g) The Company will maintain insurance on the Inso Subs, their business and their assets in a manner consistent with past practices. (h) Without limiting the generality of the foregoing, the Inso Subs and the Company and its Subsidiaries shall will in all other respects, respects operate their respective businesses the IED business in the usual ordinary course and ordinary course, use commercially reasonable effects to preserve the goodwill of suppliers, customers, employees and others having relations with the Company and its Subsidiaries, and will not to commit or otherwise agree to take any action prohibited hereby. (e) The Company and its Subsidiaries shall: (i) file all Tax returns, elections or information statements with respect to any liabilities for Taxes or other matters relating to Taxes, which pursuant to applicable Law must be filed prior to the Closing Date; (ii) promptly upon filing provide copies of any such Tax returns, elections or information statements to Buyer; (iii) make any such Tax elections or other discretionary positions with respect to Taxes taken by or affecting the Company or any Subsidiary only upon prior consultation with and consent of Buyer; and (iv) not amend any Tax return or file any carry back claims.