Common use of Conditions to Obligations of Buyer and Parent Clause in Contracts

Conditions to Obligations of Buyer and Parent. The obligation of Buyer and Parent to effect the Closing and consummate the transactions contemplated by this Agreement is subject to satisfaction on or prior to the Closing Date of the following conditions: (a) (i) the representations and warranties of Seller and Principals set forth in this Agreement (disregarding qualifications as to materiality and Material Adverse Effect) will be true and correct as of the Closing Date (other than those expressly made as of an earlier date, in which case as of such date) and (ii) Seller and Principals will have performed or complied with, in all respects, the covenants and agreements hereunder that are required to be performed or complied with on or prior to the Closing Date; (b) Seller and USF shall have duly executed and delivered to Buyer the Amended License; (c) Seller and each Principal will have delivered to Buyer a certificate executed as of the Closing Date, with respect to Seller, by the manager of Seller, and with respect to a Principal, by such Principal to the effect that each of the conditions specified in Section 7.1(a) is satisfied; (d) Seller will have obtained and delivered to Buyer evidence that Seller has obtained all Necessary Consents, which Necessary Consents shall be in form and substance reasonably acceptable to Buyer and will not have been revoked or cancelled as of the Closing; (e) there will not be any Order in effect preventing consummation of the transactions contemplated by this Agreement or any Action that seeks to enjoin, restrain, or prohibit the consummation of the transactions contemplated by this Agreement pending before any court or any other Governmental Authority; (f) Seller will have delivered or caused to be delivered to Buyer: (i) the Assignment and Assumption Agreement with respect to the assignment of the Amended License by and among USF, Seller and Buyer in substantially the form of Exhibit C attached hereto Agreement (“License Assignment”), duly executed by Seller and USF and acknowledged by Xxxxxxx; (ii) the Xxxx of Sale by and between Seller in favor of Buyer in substantially the form of Exhibit D attached hereto (the “Xxxx of Sale”), duly executed by Seller, and any other instruments of transfer reasonably required by Buyer to evidence the transfer of the Purchased Assets to Buyer, in each case duly executed by Seller; (iii) the Non-Competition and Non-Solicitation Agreement by Seller and Principals in favor of Buyer and Parent, in substantially the forms of Exhibits E attached hereto (collectively, the “Non-Competition Agreement”), duly executed by Seller, and Principals; (iv) the Confidentiality Agreement by USF, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxxx Xxxx in favor of Buyer and Parent, in substantially the form of Exhibit F attached hereto (the “Confidentiality Agreement”), duly executed by USF, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxxx Xxxx; (v) copies of (A) the articles of organization of Seller certified as of a date no later than twenty (20) days prior to the Closing Date by the Secretary of State of Ohio, (B) a good standing certificate for Seller certified as of a date no later than twenty (20) days prior to the Closing Date from the Secretary of State of Ohio, and (C) a good standing certificate for Seller certified as of a date no later than twenty (20) days prior to the Closing Date from the Secretary of State of each jurisdiction in which Seller is qualified to do business as a foreign limited liability company; (vi) a certificate from Seller’s manager certifying to (A) Seller’s articles of organization and operating agreement in effect as of the Closing, (B) the resolutions of Seller’s manager and members authorizing the execution, delivery and performance of this Agreement and each of the other Ancillary Documents to which it is a party or by which it is bound, and the consummation of each of the transactions contemplated hereby and thereby, and (C) the incumbency of the manager authorized to execute this Agreement or any other Ancillary Document to which Seller is or is required to be a party or by which Seller is or is required to be bound; (vii) evidence of the release of all Liens upon the Purchased Assets in form and substance reasonably acceptable to Buyer; (viii) Such other documents and instruments as may be required by any other provision of this Agreement or as may reasonably be required to consummate the transactions contemplated by this Agreement and the Ancillary Documents; Buyer and Parent may waive any condition specified in this section if it executes a written waiver to that effect at or prior to the Closing.

Conditions to Obligations of Buyer and Parent. The obligation obligations of the Buyer and Parent Parties to effect the Closing and consummate the transactions contemplated by this Agreement is shall be subject to satisfaction on the fulfillment or Buyer’s written waiver, at or prior to the Closing Date Closing, of each of the following conditions: (a) (i) Other than the representations and warranties of Seller contained in Section 4.2, Section 4.5 and Principals set forth Section 4.22, the representations and warranties of Seller contained in this Agreement Agreement, the Ancillary Documents and any certificate or other writing delivered pursuant hereto shall be true and correct in all respects (disregarding qualifications as to in the case of any representation or warranty qualified by materiality and or Material Adverse Effect) will be true or in all material respects (in the case of any representation or warranty not qualified by materiality or Material Adverse Effect) on and correct as of the Closing Date (other than except those expressly made representations and warranties that address matters only as of an earlier a specified date, in the accuracy of which case shall be determined as of such date) and (ii) Seller and Principals will have performed or complied with, that specified date in all respects). The representations and warranties of Seller contained in Section 4.2, Section 4.5 and Section 4.22 shall be true and correct in all respects on and as of the Closing Date (except those representations and warranties that address matters only as of a specified date, the covenants accuracy of which shall be determined as of that specified date in all respects). (b) No Action shall have been commenced against Buyer or Seller, which would prevent the Closing. No injunction or restraining order shall have been issued by any Governmental Authority, and agreements hereunder be in effect, which restrains or prohibits any transaction contemplated hereby. (c) All approvals, consents and waivers that are required listed on Section 4.3 of the Disclosure Schedules shall have been received, and executed counterparts thereof shall have been delivered to be performed or complied with on the Buyer Parties at or prior to the Closing Date;Closing. (bd) Seller and USF shall have duly executed and delivered to Buyer the Amended License; (c) Seller and each Principal will have delivered to the Buyer a certificate Parties duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth in Section 3.2(a). (e) Buyer shall have received all Permits that are necessary for it to conduct the Business as conducted by Sellers as of the Closing Date, with respect to Seller, by the manager of Seller, and with respect to a Principal, by such Principal to the effect that each of the conditions specified in Section 7.1(a) is satisfied; (d) Seller will have obtained and delivered to Buyer evidence that Seller has obtained all Necessary Consents, which Necessary Consents shall be in form and substance reasonably acceptable to Buyer and will not have been revoked or cancelled as of the Closing; (e) there will not be any Order in effect preventing consummation of the transactions contemplated by this Agreement or any Action that seeks to enjoin, restrain, or prohibit the consummation of the transactions contemplated by this Agreement pending before any court or any other Governmental Authority;. (f) Seller will have delivered or caused All Encumbrances relating to be delivered to Buyer: (i) the Assignment and Assumption Agreement with respect to the assignment of the Amended License by and among USF, Seller and Buyer in substantially the form of Exhibit C attached hereto Agreement (“License Assignment”), duly executed by Seller and USF and acknowledged by Xxxxxxx; (ii) the Xxxx of Sale by and between Seller in favor of Buyer in substantially the form of Exhibit D attached hereto (the “Xxxx of Sale”), duly executed by Seller, and any other instruments of transfer reasonably required by Buyer to evidence the transfer of the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Seller shall have delivered to Buyerthe Buyer Parties written evidence, in each case duly executed by Seller;form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances. (iiig) The Buyer Parties shall have received a certificate of the Non-Competition Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached thereto are true and Non-Solicitation Agreement by Seller and Principals in favor of Buyer and Parent, in substantially the forms of Exhibits E attached hereto (collectively, the “Non-Competition Agreement”), duly executed by Seller, and Principals; (iv) the Confidentiality Agreement by USF, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxxx Xxxx in favor of Buyer and Parent, in substantially the form of Exhibit F attached hereto (the “Confidentiality Agreement”), duly executed by USF, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxxx Xxxx; (v) complete copies of (A) all resolutions adopted by the articles board of organization directors of Seller certified as of a date no later than twenty (20) days prior to the Closing Date by the Secretary of State of Ohio, (B) a good standing certificate for Seller certified as of a date no later than twenty (20) days prior to the Closing Date from the Secretary of State of Ohio, and (C) a good standing certificate for Seller certified as of a date no later than twenty (20) days prior to the Closing Date from the Secretary of State of each jurisdiction in which Seller is qualified to do business as a foreign limited liability company; (vi) a certificate from Seller’s manager certifying to (A) Seller’s articles of organization and operating agreement in effect as of the Closing, (B) the resolutions of Seller’s manager and members authorizing the execution, delivery and performance of this Agreement and each of the other Ancillary Documents to which it is a party or by which it is bound, and the consummation of each of the transactions contemplated hereby and thereby, and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated hereby and thereby. (Ch) the incumbency The Buyer Parties shall have received a certificate of the manager Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and signatures of the officers of Seller authorized to execute sign this Agreement or any Agreement, the Ancillary Documents and the other Ancillary Document documents to which be delivered hereunder and thereunder. (i) The Buyer Parties shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that Seller is either not a foreign person within the meaning of Section 1445 of the Code or other certification that Section 1445 of the Code is required to be a party or not applicable duly executed by which Seller is or is required to be bound;Seller. (viij) evidence of Seller shall have delivered to the release of all Liens upon the Purchased Assets in form and substance reasonably acceptable to Buyer; (viii) Such Buyer Parties such other documents and or instruments as may be required by any other provision of this Agreement or as may the Buyer Parties reasonably be required request and are reasonably necessary to consummate the transactions contemplated by this Agreement and the Ancillary Documents; Buyer and Parent may waive any condition specified in this section if it executes a written waiver to that effect at or prior to the ClosingAgreement.

Conditions to Obligations of Buyer and Parent. The obligation obligations of Buyer and Parent to effect the Closing and consummate the transactions contemplated by this Agreement is shall be subject to satisfaction on the fulfillment or Buyer’s and Parent’s waiver, at or prior to the Closing Date Closing, of each of the following conditions: (a) (i) the The representations and warranties of Seller and Principals set forth contained in this Agreement (disregarding qualifications as to materiality and Material Adverse Effect) will Article VI shall be true and correct in all material respects at and as of the Closing Date (other than those expressly made as of an earlier dateunless qualified by materiality or Material Adverse Effect, in which case such representations and warranties shall be true and correct in all respects) as if made at and as of such time (other than those made at and as of a specified date) , which shall be true and correct in all material respects at and as of such specified date (ii) Seller unless qualified by materiality or Material Adverse Effect, in which case such representations and Principals will have performed or complied with, warranties shall be true and correct in all respects)). (b) Seller shall have duly performed and complied in all material respects with all agreements, the covenants and agreements hereunder that are conditions required by this Agreement to be performed or complied with by Seller prior to or on or the Closing Date. (c) Seller shall have delivered the Required Financials in accordance with Section 8.9. (d) Seller shall have delivered to Buyer and Parent: (i) a certificate, dated as of the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions set forth in Section 9.2(a) and 9.2(b) have been satisfied. (ii) a certificate from the Secretary of Seller certifying on the Closing Date that the following are true, correct and complete and attaching a copy thereof: (a) Seller’s articles of incorporation and bylaws as in effect immediately prior to the Closing, (b) resolutions unanimously and duly and validly adopted by Seller’s board of directors authorizing this Agreement and the transactions contemplated hereby, (c) an incumbency certificate, and (d) a certificate of good standing of Seller issued by the Secretary of State of Florida as of a date not more than ten days prior to the Closing Date; (b) Seller and USF shall have duly executed and delivered to Buyer the Amended License; (c) Seller and each Principal will have delivered to Buyer a certificate executed as of the Closing Date, with respect to Seller, by the manager of Seller, and with respect to a Principal, by such Principal to the effect that each of the conditions specified in Section 7.1(a) is satisfied; (d) Seller will have obtained and delivered to Buyer evidence that Seller has obtained all Necessary Consents, which Necessary Consents shall be in form and substance reasonably acceptable to Buyer and will not have been revoked or cancelled as of the Closing; (e) there will not be any Order in effect preventing consummation of the transactions contemplated by this Agreement or any Action that seeks to enjoin, restrain, or prohibit the consummation of the transactions contemplated by this Agreement pending before any court or any other Governmental Authority; (f) Seller will have delivered or caused to be delivered to Buyer: (i) the Assignment and Assumption Agreement with respect to the assignment of the Amended License by and among USF, Seller and Buyer in substantially the form of Exhibit C attached hereto Agreement (“License Assignment”), duly executed by Seller and USF and acknowledged by Xxxxxxx; (iiiii) the Xxxx of Sale and Assignment and Assumption Agreement, duly executed by and between Seller in favor of Buyer Seller, in substantially the form of attached hereto as Exhibit D attached hereto (the “Xxxx of Sale”), ; (iv) duly executed by Seller, and any other instruments of transfer reasonably required by Buyer to evidence the transfer franchise agreements for each of the Purchased Assets Subject Restaurants (other than with respect to Buyerany Subject Restaurant located on a Non-Consented Property) for the terms set forth in Schedule 9.2(d)(iv) in the form attached hereto as Exhibit E (the “Franchise Agreements”), in each case duly executed by Seller; (iiiv) the Non-Competition and Non-Solicitation Agreement Required Consents (other than those contemplated by Seller and Principals in favor of Buyer and Parent, in substantially the forms of Exhibits E attached hereto (collectively, the “Non-Competition Agreement”Section 9.1(f), duly executed by Seller, and Principals; (iv) the Confidentiality Agreement by USF, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxxx Xxxx in favor of Buyer and Parent, in substantially the form of Exhibit F attached hereto (the “Confidentiality Agreement”), duly executed by USF, Xxxxx Xxxxx, Xxxxxxx Xxxxxxx and Xxxx Xxxx; (v) copies of (A) the articles of organization of Seller certified as of a date no later than twenty (20) days prior to the Closing Date by the Secretary of State of Ohio, (B) a good standing certificate for Seller certified as of a date no later than twenty (20) days prior to the Closing Date from the Secretary of State of Ohio, and (C) a good standing certificate for Seller certified as of a date no later than twenty (20) days prior to the Closing Date from the Secretary of State of each jurisdiction in which Seller is qualified to do business as a foreign limited liability company; (vi) a certificate from duly executed leases and subleases for the Subject Restaurant Real Property (other than with respect to any Non-Consented Property) in substantially the form attached hereto as Exhibit F (the “Seller Leases”), executed by Seller’s manager certifying to (A) Seller’s articles of organization and operating agreement in effect as of the Closing, (B) the resolutions of Seller’s manager and members authorizing the execution, delivery and performance of this Agreement and each of the other Ancillary Documents to which it is a party or by which it is bound, and the consummation of each of the transactions contemplated hereby and thereby, and (C) the incumbency of the manager authorized to execute this Agreement or any other Ancillary Document to which Seller is or is required to be a party or by which Seller is or is required to be bound; (vii) evidence an affidavit described in Section 1445(b)(2) of the release of all Liens upon the Purchased Assets Code from Seller in form and substance reasonably acceptable satisfactory to Buyer; (viii) Such a duly executed operating agreement in substantially the form attached hereto as Exhibit G (the “Operating Agreement”), executed by Seller; (ix) duly executed voting agreements in substantially the form attached hereto as Exhibit H (the “Voting Agreements”), executed by Seller; (x) a duly executed registration rights agreement in substantially the form attached hereto as Exhibit I (the “Registration Rights Agreement”), executed by Seller; and (xi) such other documents bills of sale, assignments and other instruments of transfer or conveyance as Buyer may be required by any other provision of this Agreement reasonably request or as may reasonably otherwise be required necessary to consummate evidence and effect the transactions contemplated by this Agreement sale, assignment, transfer, conveyance and delivery of the Ancillary Documents; Purchased Assets to Buyer and Parent may waive any condition specified in this section if it executes assumption of Assumed Liabilities by Buyer. (e) No event or circumstance shall have occurred or exist which constitutes a written waiver to that effect at or prior to Material Adverse Effect. (f) All Liens on the ClosingPurchased Assets shall have been released other than Permitted Liens.