Common use of Access to Records and Properties Prior to the Closing Date Clause in Contracts

Access to Records and Properties Prior to the Closing Date. Between the date of this Agreement and the Closing Date, Seller shall give Purchaser, its directors, officers, employees, accountants, counsel and other representatives and agents ("Representatives") reasonable access to the premises, properties, employee records, books, financial statements, Contracts, and records of Seller relating to the Restaurants, the Purchased Assets, Real Properties, the Easements and Assumed Contracts, and shall furnish Purchaser with such financial and operating data and other information with respect to the business and properties of Seller as Purchaser shall from time to time reasonably request for such purposes as Purchaser shall require and pertaining to its acquisition of the Restaurants. Any such investigation or examination shall be conducted at reasonable times and upon reasonable notice to Seller. Purchaser shall: (i) be solely responsible for all costs associated with the conduct of its investigations and examinations; (ii) upon completion of its investigations and examinations immediately repair and restore the Real Property to its condition existing immediately prior to the conduct of its investigations and examinations; and (iii) indemnify, defend and hold Seller harmless from and against all liabilities, claims, damages, actions, or losses (threatened or incurred) to the Real Property or anyone on the Property or around the Property as a result of the negligence of the Purchaser, or any of Purchaser’s agents, in performing the investigations and examinations. Notwithstanding inspections, audits or other studies undertaken by or on behalf of Purchaser hereunder or any other due diligence investigation undertaken by or on behalf of Purchaser, Seller shall not be relieved in any way of responsibility for their warranties, representations and covenants set forth in this Agreement.

Access to Records and Properties Prior to the Closing Date. Between the date of this Agreement and the Closing Date, Seller shall give Purchaser, its directors, officers, employees, accountants, counsel and other representatives and agents ("Representatives") reasonable access to the premises, properties, employee records, books, financial statements, Contracts, and records of Seller relating to the Restaurants, the Purchased Assets, Real Properties, the Easements and Assumed Contracts, and shall furnish Purchaser with such financial and operating data and other information with respect to the business and properties of Seller as Purchaser shall from time to time reasonably request for such purposes as Purchaser shall require and pertaining to its acquisition of the Restaurants. Any such investigation or examination shall be conducted at reasonable times and upon reasonable notice to Seller. Purchaser shall: (i) be solely responsible for all costs associated with the conduct of its investigations and examinations; (ii) upon completion of its investigations and examinations immediately repair and restore the Real Property to its condition existing immediately prior to the conduct of its investigations and examinations; and (iii) indemnify, defend and hold Seller harmless from and against all liabilities, claims, damages, actions, or losses (threatened or incurred) to the Real Property or anyone on the Property or around the Property as a result of the negligence of the Purchaser, or any of Purchaser’s agents, in performing the investigations and examinations. Notwithstanding inspections, audits or other studies undertaken by or on behalf of Purchaser hereunder or any other due diligence investigation undertaken by or on behalf of Purchaser, Seller shall not be relieved in any way of responsibility for their warranties, representations and covenants set forth in this Agreement.. SECTION 4.2 Operation of the Business of Seller. (a) Between the date of this Agreement and the Closing Date, Seller shall conduct the operation of the Restaurants in the ordinary and usual course of business, consistent with past practices and will use its best efforts to preserve intact the present business organization with respect to the Restaurants, to keep available the services of its officers and employees, and to maintain satisfactory relationships with landlords, franchisors, dealers, licensors, licensees, suppliers, contractors, distributors, customers and others having business relations with it and the Restaurants and will maintain the Restaurants, Real Properties, and Purchased Assets in a condition conducive to the operation of the business currently carried on therein. (b) Without limiting the generality of the foregoing, and except as otherwise expressly provided in this Agreement or with the prior written consent of Purchaser, Seller will not: (i) keep and maintain its books of account and records other than in accordance with generally accepted accounting principles consistent with past practices; (ii) amend or restate the leases for the Real Properties, the Franchise Agreements or any Assumed Contract or other material Contract; (iii) (A) Increase in any manner the compensation of any of the employees at any of the Restaurants other than in the ordinary course of business, consistent with past practices; (B) pay or agree to pay any pension, retirement allowance or other employee benefit not required or permitted by any Plan, whether past or present; or (C) commit itself in relation to the Restaurants, the employees at the Restaurants or the Real Properties, to any new or renewed Plan with or for the benefit of any Person, or to amend any of such Plans or any of such agreements in existence on the date hereof; (iv) Permit any of its insurance policies to be canceled or terminated or any of the coverage thereunder to lapse, unless simultaneously with such termination, cancellation or lapse, replacement policies are in full force and effect providing coverage, in form, substance and amount equal to or greater than the coverage under those canceled, terminated or lapsed for substantially similar premiums; (v) Enter into any other Contracts whether written or oral which, individually or in the aggregate, would be material to the Restaurants, Purchased Assets, Real Properties, the Easements or the Assumed Contracts, except Contracts for the purchase, sale or lease of goods or services in the ordinary course of business consistent with past practice and not in excess of current requirements, or otherwise make any material change in the conduct of the businesses or operations of Seller; (vi) Take any action which would result in any of the representations or warranties contained in this Agreement or the other Transaction Documents not being true at and as of the time immediately after such action at and as of the Closing Date, or impair Seller’s ability to perform any of the covenants contained in this Agreement or other Transaction Documents or which would have a materially adverse impact on the transactions contemplated by this Agreement or the Transaction Documents; (vii) Operate the Restaurants or otherwise engage in any practices which would materially adversely affect sales at the Restaurants; or (viii) Agree (in writing or otherwise) to do any of the foregoing. (c) From and after the date hereof, Seller or any of its Affiliates will not remove any management personnel (manager and assistant managers) from the Restaurants or relocate such management personnel to any other restaurants owned or operated by Seller or its Affiliates. (d) From the date hereof and up to and including the Closing Date, Seller shall use its best efforts to maintain and retain at a minimum one (1) Restaurant Manager position and two (2) Assistant Restaurant Manager positions per Restaurant. (e) From the date hereof and up to and including the Closing Date, Seller shall: (i) maintain all agreements and accounts with suppliers, licensers, licensees, advertisers, distributors, vendors and others having business dealings with or providing services to the Restaurants including, but not limited to trash and garbage removal, snow and ice removal, landscaping and lawn care, utilities, telephone service, internet service, repairs and maintenance, grease removal, and billboard and highway sign agreements and Seller shall not terminate any such agreements or accounts without the Purchaser’s prior written consent not to be unreasonably withheld; (ii) assist with and provide reasonable cooperation in the orderly transition of all such agreements, business dealings and services to Purchaser; (iii) provide reasonable cooperation in obtaining the assignment of any of the Assumed Contracts provided that the same are capable of assignment with or without consent; and (iv) provide reasonable cooperation in developing transitional plans and arrangements, as may be required, to effect the transition of the Restaurants and related POS, inventory and supporting information systems. SECTION 4.3