Common use of Reasonable Best Efforts; Notification Clause in Contracts

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties hereto shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner reasonably practicable, the Merger and the transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, including under applicable Liquor Laws and SOB Laws, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) making all necessary filings, and thereafter making any other required submissions, with respect to this Agreement and the Merger required under the HSR Act and any related governmental request thereunder and under any other applicable Law, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, the Merger or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (v) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement. The Company (acting through or in cooperation with the Special Committee), Parent, Purchaser and each Executive shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith. The Company (acting through or in cooperation with the Special Committee), Parent, Purchaser and the Executives shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement and the Schedule 13E-3) in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 Agreement shall be deemed to require Parent or Buyer any party to pay or commit agree to pay any money or other consideration substantial limitation on its operations or to incur dispose of any liability significant asset or other obligation (exceptcollection of assets. (b) Seller The Company (acting through or in cooperation with the Special Committee) shall give prompt notice to Parent and BuyerPurchaser, and Parent and Buyer Purchaser shall give prompt notice to Sellerthe Company, (i) if of the discovery of any representation fact or warranty made by it circumstance that, or them contained in this Agreement that is qualified as the occurrence or non-occurrence of any event the occurrence or non-occurrence of which, would reasonably likely to Seller Material Adverse Effect, Parent Material Adverse Effect cause or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect result in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy conditions set forth in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this AgreementArticle VII not being satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent)authorizations; (ii) use all reasonable best efforts (other than the payment of money) to obtain, obtain in writing, writing any consents required from third parties to effectuate the consents listed in Section 5.3(a)(1) Merger and avoid defaults or acceleration of the rights of third parties under contracts with Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) or Seller Subsidiaries as a result of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) consummation of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (Merger, such Lender Consents, Ground Lessor Consents and Franchise Consents referred consents to herein collectively as the "Required Consents") be in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement. In furtherance thereof, subject Seller agrees to vote in favor of the case of Seller to the exercise transactions contemplated by the Partnership Merger Agreement in its capacity as a limited partner of the Seller Board Partnership, and to cause the Seller General Partner to so vote in its capacity as a general partner of the Seller Partnership. If at any time after the Effective Time any further action is necessary or Special Committee prior desirable to carry out the Outside Date purpose of its duties under applicable law; provided howeverthis Agreement, that nothing in this Section 5.3 Parent and the Surviving Company shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (excepttake all such necessary action. (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, materiality becomes untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner conditions set forth in Section 5.3(c) this Agreement (and without limiting the rights of the Company and the consents listed in Company Board under Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"5.02), and each of the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things reasonably necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the other Transactions, including using reasonable best efforts to: (i) cause the conditions to the Merger set forth in Article VII to be satisfied or fulfilled, (ii) obtain all necessary actions or nonactions, waivers, consents and approvals from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an Action by, any Governmental Authority, (iii) obtain all necessary consents, approvals or waivers from third parties, (iv) defend any Action challenging this Agreement or any Ancillary Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and (v) execute and deliver any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement or the Ancillary Agreements; provided, that, in connection with any of the foregoing clauses (i) through (iv), Parent and the Company (x) shall not be obligated to and (y) shall not agree to (A) make any payment of a consent fee, “profit sharing” payment or other consideration (including increased or accelerated payment) or concede anything of monetary or economic value or (B) amend, supplement or modify any contract in any manner that would be adverse to the interest of the Company or, after the Merger, Parent and its Subsidiaries, in each case in subpart (y), without the prior written consent of Parent. (b) Without limiting the generality of anything contained in this Section 6.03, from the date hereof until the Effective Time or the termination or this Agreement in accordance with its terms, each of the Company and Parent (on its and Merger Sub’s behalf) shall use its reasonable best efforts to (i) cooperate in all respects and consult with each other in connection with any filing or submission in connection with any investigation or other inquiry, including allowing the other party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) give the other party prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding brought by a Governmental Authority or brought by a third party before any Governmental Authority, in each case, with respect to the transactions contemplated by this Agreement, subject in (iii) keep the case of Seller other party promptly informed as to the exercise by status of any such request, inquiry, investigation, action or legal proceeding, (iv) promptly inform the Seller Board other party of any communication to or Special Committee prior from the FTC, DOJ or any other Governmental Authority in connection with any such request, inquiry, investigation, action or legal proceeding, (v) promptly furnish to the Outside Date other party, subject to an appropriate confidentiality agreement to limit disclosure to outside counsel and consultants retained by such counsel, with copies of its duties under applicable law; documents provided howeverto or received from any Governmental Authority in connection with any such request, that nothing in this Section 5.3 shall require Parent inquiry, investigation, action or Buyer legal proceeding, (vi) subject to pay or commit to pay any money an appropriate confidentiality agreement or other consideration legal obligation to limit disclosure to counsel and outside consultants retained by such counsel, consult in advance and cooperate with the other party and consider in good faith the views of the other party in connection with any substantive communication, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to incur be made or submitted in connection with any liability such request, inquiry, investigation, action or other obligation (except (b) Seller shall give prompt notice to Parent and Buyerlegal proceeding, and Parent and Buyer shall give prompt notice to Seller(vii) except as may be prohibited by any Governmental Authority or by applicable Law, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or connection with any such representation request, inquiry, investigation, action or warranty that is not so qualified becomes untrue or incorrect legal proceeding in any material respect or (ii) of the failure transactions contemplated by it or them to comply with or satisfy in any material respect any covenantthis Agreement, condition or agreement each party shall provide advance notice of and permit authorized Representatives of the other party to be complied present at each meeting or conference, including any virtual or telephonic meetings, relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in advance in connection with any argument, opinion or satisfied by it under this Agreementproposal to be made or submitted to any Governmental Authority in connection with such request, inquiry, investigation, action or legal proceeding; provided, however, that no such notification shall affect materials required to be provided pursuant to this Section 6.03(b) may be redacted (A) to remove references concerning the representationsvaluation of Parent, warrantiesMerger Sub, covenants the Company, or agreements any of the parties their respective Subsidiaries or the conditions assets, (B) as necessary to the obligations of the parties under this Agreement. comply with contractual arrangements, and (cC) With respect as necessary to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all address reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Scheduleprivilege concerns. Each party shall update the supply as promptly as practicable such information, documentation, other on its progress material or testimony that may be requested by any Governmental Authority, including by complying at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller earliest reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the practicable date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overagereasonable request for additional information, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with documents or other materials received by any party or any of their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive Subsidiaries from any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) Governmental Authority in connection with obtaining consent of such applications or filings for the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution this Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) parties agrees to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as practicable, the transactions Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to avoid an action or proceeding by any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including, without limitation, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and its board of directors (or any committee thereof) shall, if any state takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement or the other Transactions, use their best efforts to ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement, subject in Agreement and otherwise to minimize the case effect of Seller to such statute or regulation on the exercise Merger and the other Transactions. Nothing herein shall limit or affect the Company’s taking actions specifically permitted by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except6.04. (b) Seller In furtherance of and without limiting the above provisions, each of the Company and Parent shall, as promptly as practicable following the execution and delivery of this Agreement (but in no event more than the tenth Business Day thereafter), file with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form required for the Transactions pursuant to the HSR Act. Any such notification and report form shall give prompt notice be in substantial compliance with the requirements of the HSR Act. Each of the Company and Parent shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission which is necessary under the HSR Act. The Company and Parent and Buyershall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, the FTC or the DOJ, and shall comply promptly with any such inquiry or request. Parent shall take any and Buyer shall give prompt notice all steps necessary to Selleravoid or eliminate each and every impediment under any antitrust, (i) if competition or trade regulation law that may be asserted by any representation or warranty made by it or them contained in this Agreement that is qualified Governmental Entity with respect to the Merger so as to Seller Material Adverse Effectenable the closing to occur as soon as reasonably possible, including, without limitation, proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent Material Adverse Effect or Buyer Material Adverse Effectany of its Subsidiaries as may be required in order to avoid the entry of, as or to effect the case may bedissolution of, becomes untrue any injunction, temporary restraining order or incorrect other order in any respect suit or any such representation proceeding, which would otherwise have the effect of preventing or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of delaying the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementclosing. (c) With respect Subject to securing the Lender Consentsterms and conditions of this Agreement, Buyer in furtherance and Seller not in limitation of the covenants of the parties contained in Sections 6.05(a) and 6.05(b), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any of the Transactions as violative of any applicable law, each of the parties shall cooperate in all respects with each other and shall use all its reasonable best efforts in order to secure each contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender ConsentsTransactions. (d) SellerIf any objections are asserted with respect to the Transactions under any applicable law or if any suit is instituted by any Governmental Entity or any private party challenging any of the Transactions as violative of any applicable law, Buyer each of the Company and Parent shall use all its reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid resolve any such objections or payable by Seller, Seller Partnership challenges such Governmental Entity or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent private party may have to such Transactions so as to permit consummation of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsTransactions. (e) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall be deemed to require Parent or any Subsidiary or affiliate thereof to agree to any Action of Divestiture. The Company shall not, without the prior written consent of Parent, take or agree to take any Action of Divestiture. For purposes of this Agreement, an “Action of Divestiture” shall mean (i) any license, sale or other disposition or holding separate (through establishment of a trust or otherwise) of any shares of capital stock or of any business, assets or properties of Parent, its subsidiaries or affiliates, or of the last two sentences of Section 5.3(d), no Franchise Fees Company that are paid material to Parent or payable by the Company, (ii) the imposition of any material limitation on the ability of Parent, Buyer its Subsidiaries or Lessee shall be included affiliates, or the Company to conduct their respective businesses or own any capital stock or assets or to acquire, hold or exercise full rights of ownership of their respective businesses and, in determining the dollar thresholds in such sentences unless Seller shall have been consulted by case of Parent, Buyer the businesses of the Company or Lessee(iii) the imposition of any material impediment on Parent, as applicableits Subsidiaries or affiliates, prior to or the incurrence of such Franchise FeesCompany under any statute, rule, regulation, executive order, decree, order or other legal restraint governing competition, monopolies or restrictive trade practices.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) parties agrees to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Offer and the Merger, and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from any Governmental Authority and the making of all necessary registrations and filings (including filings with any Governmental Authority, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any Lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of any of the transactions contemplated by this Agreement, subject in including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and (iv) the case execution and delivery of Seller any additional instruments necessary to consummate the exercise by transactions contemplated by, and to fully carry out the Seller Board or Special Committee prior to the Outside Date of its duties under applicable lawpurposes of, this Agreement; provided provided, however, that nothing no loan agreement or contract for borrowed money entered into by the Company or any of its Subsidiaries shall be repaid except as currently required by its terms, in whole or in part, and no contract shall be amended to increase the amount payable thereunder or otherwise to be more burdensome to the Company or any of its Subsidiaries in order to obtain any such consent, approval or authorization without first obtaining the written approval of Parent (which approval shall not be unreasonably withheld). Nothing contained in this Section 5.3 8.4 shall require Parent prohibit the Company and its Subsidiaries from taking any action permitted by Section 8.5 or Buyer from terminating this Agreement pursuant to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptSection 10.1. (b) Seller The Company shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, of (i) if any representation or warranty made by it or them the Company contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes becoming untrue or incorrect incorrect, subject to the standard established in Section 5.2 where applicable in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect would cause the condition to the Offer set forth in any material respect paragraph (c)(2) of Annex I hereto to fail to be satisfied; or (ii) of the failure by it or them the Company to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties Company or the conditions to the obligations of the parties under this Agreement. (c) With respect Parent shall give prompt notice to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each Company of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some any representation or all of the Lender Consents are not obtainedwarranty made by Parent or Purchaser contained in this Agreement becoming untrue or incorrect, subject to the extent the Original Loan Amounts (as defined standard established in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date5.2 where applicable, in whole any respect or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid failure by Parent or required Purchaser to comply with or satisfy in any material respect any covenant, condition or agreement to be paid complied with or satisfied by Sellerit under this Agreement; provided that no such notification shall affect the representations, Seller Partnership warranties, covenants or any other Seller Subsidiary in cash agreements of Parent or other consideration (including by making commitments Purchaser or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable conditions to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half obligations of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors parties under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsthis Agreement. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another set forth in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, Sub and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required Company agrees to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective effective, in the most expeditious manner practicable, the Offer, the Merger and the other transactions contemplated by the Transaction Documents, including (i) the taking of all commercially reasonable acts necessary to cause the conditions set forth in Annex A or Article VI to be satisfied, (ii) obtaining all necessary, proper or advisable actions or non-actions, waivers, consents, qualifications and approvals from Governmental Entities and making all necessary, proper or advisable registrations, filings and notices and taking all reasonable steps as may be necessary to obtain an approval, waiver or exemption from any Governmental Entity (including, without limitation, under the HSR Act, and including any Request for Additional Information and Documentary Material thereunder (a “Second Request”)); (iii) obtaining all necessary, proper or advisable consents, qualifications, approvals, waivers or exemptions from the non-governmental Third Parties; (iv) executing and delivering any additional documents or instruments necessary, proper or advisable to consummate the transactions contemplated by, and to fully carry out the purposes of, the Transaction Documents; and (iv) exercising the Additional Share Option. (b) Without limiting the foregoing, (i) each of the Company, Parent and Merger Sub shall use its commercially reasonable efforts to make promptly any required submissions under the HSR Act (including any required submissions under a Second Request) and any other Antitrust Laws which the Company or Parent determines should be made, in each case with respect to the Offer and the Merger and the transactions contemplated hereby and (ii) Parent, Merger Sub and the Company shall cooperate with one another (A) in promptly determining whether any filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any other federal, state or foreign Law or regulation or whether any consents, approvals or waivers are required to be or should be obtained from other parties to loan agreements or other contracts or instruments material to the Company’s business in connection with the consummation of the transactions contemplated by this Agreement and (B) in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain timely any such consents, permits, authorizations, approvals or waivers. Each of the Company and Parent shall (1) give the other party prompt notice of the commencement or threat of commencement of any suit, claim, action, investigation or proceeding by or before any Governmental Entity with respect to the Offer or the Merger or any of the other transactions contemplated by this Agreement, subject in (2) keep the case of Seller other party informed as to the exercise by status of any such suit, claim, action, investigation, proceeding or threat, (3) promptly inform the Seller Board other party of any material communication concerning the HSR Act or Special Committee prior other Antitrust Laws to or from any Governmental Entity regarding the Offer or the Merger and (4) furnish to the Outside Date of its duties under applicable law; provided however, that nothing other party such information and assistance as the other may reasonably request in this Section 5.3 shall require Parent or Buyer to pay or commit to pay connection with any money filing or other consideration act undertaken in compliance with the HSR Act and any other Antitrust Laws. Except as may be prohibited by any Governmental Entity, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any suit, claim, action, investigation or proceeding under or relating to incur the HSR Act or any liability other Antitrust Law. Each of the Company and Parent will permit authorized Representatives of the other party to be present at each meeting or other obligation (exceptconference relating to any such legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with any such legal proceeding. (bc) Seller shall give prompt notice to Parent and BuyerEach of the Company, on the one hand, and Parent and Buyer Merger Sub, on the other, shall give prompt notice to Sellerpromptly (and in any event within five (5) Business Days) notify the other party in writing if it believes that such party has breached any representation, (i) if any representation warranty, covenant or warranty made by it or them agreement contained in this Agreement that is qualified could, individually or in the aggregate, result in a failure of a condition set forth in Annex A hereto. (d) If any Antitakeover Laws are or may become applicable to the Merger or any of the other transactions contemplated by this Agreement, the Company and the Company Board of Directors shall promptly grant such approvals and use commercially reasonable efforts to take such other lawful actions as to Seller Material Adverse Effectare necessary so that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement, Parent Material Adverse Effect the Offer or Buyer Material Adverse Effectthe Merger, as the case may be, becomes untrue and otherwise take such other commercially reasonable and lawful actions to eliminate or incorrect in any respect or any minimize the effects of such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenantstatute, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overageregulations promulgated thereunder, the Lender Consent with respect to on such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingstransactions. (e) For purposes Prior to the Acceptance Date, the Company (acting through its Board of Directors or its Compensation Committee) shall take all steps necessary to cause any employment compensation, severance or employee benefit arrangements that have been entered into by the Company, Parent or any of their respective Affiliates with current or future directors, officers or employees of the last two sentences of Section 5.3(d), no Franchise Fees Company and its Affiliates to be exempt under amended Rule 14d-10(c) promulgated under the Exchange Act and to insure that are paid or payable by Parent, Buyer or Lessee shall be included in determining any such arrangements fall within the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence safe harbor provisions of such Franchise Feesrule.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein providedset forth in this Agreement, Sellereach of the parties shall use its reasonable best efforts (subject to, Parent and Buyer shall: in accordance with, applicable Law), to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger, the Subsequent Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid a Proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions; provided, however, that in no event shall Parent, Merger Sub, Merger LLC or the Company or any of their respective subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the Transactions under any contract or agreement. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) to the extent required, (A) promptly, but in no event later than ten Business Days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act and (B) as promptly as reasonably practicable after the date hereof, make their respective filings (which filings shall be in substantial compliance with the requirements of the HSR Act and any other applicable Law) and thereafter make any other required submissions under other applicable Regulatory Laws, (ii) use all reasonable best efforts to cooperate with one another each other in (A) determining which whether any filings are required to be made prior to the Effective Time with, and which or consents, approvalspermits, permits authorizations, waivers or authorizations approvals are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement, Agreement and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, Transactions and (B) timely making all such filings (which filings shall be in substantial compliance with the requirements of the HSR Act and any other applicable Law) and timely seeking all such consents, approvalspermits, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); approvals and (iii) use all reasonable best efforts to take, or cause to be taken, all other action actions and do, or cause to be done, all other things necessary, proper or appropriate advisable to consummate and make effective the transactions contemplated by this AgreementTransactions, subject in including taking all such further action as may be necessary to resolve such objections, if any, as the case United States Federal Trade Commission, the Antitrust Division of Seller the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other Governmental Entity may assert under Regulatory Law with respect to the exercise Transactions. In furtherance of the foregoing, the parties shall take all actions necessary to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger or the Subsequent Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Outside Date), including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or the Parent Subsidiaries or Affiliates or of the Company or the Company Subsidiaries and (B) otherwise taking or committing to take actions that after the Closing Date would limit Parent’s or any of the Parent Subsidiaries’ (including the Surviving Company’s) or its Affiliates’ freedom of action with respect to, or its or their ability to retain, one or more of its or the Parent Subsidiaries’ (including the Surviving Company’s) businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Proceeding which would otherwise have the effect of preventing or materially delaying the Closing, provided that any such agreement or action by the Seller Board or Special Committee prior Company shall be conditioned on the written consent of Parent and the consummation of the Merger and the Subsequent Merger. Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the Outside Date completion of its duties under applicable law; provided howeverthe Transactions, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money including promptly furnishing the other with copies of notices or other consideration communications received by the Company or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse EffectParent, as the case may be, becomes untrue or incorrect any of their respective subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of the Company and Parent agrees, to the extent reasonably feasible, not to participate in any respect meeting or discussion (other than relating to non-substantive matters such as the scheduling of any meetings or of any discussions or details of compliance with any request for information from any Governmental Entity), either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such representation Governmental Entity, gives the other party the opportunity to attend and participate. The Company and Parent shall furnish the other with such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or warranty that is not so qualified becomes untrue submissions of information to any Governmental Entity. Either Parent or incorrect in the Company may designate any material respect or (ii) competitively sensitive information provided to the other under this Agreement as “outside counsel only”. Such materials and the information contained therein shall be given only to outside legal counsel of the failure other and will not be disclosed by it such outside counsel to employees, officers or them to comply with directors of their client unless express written permission is obtained in advance from the disclosing party or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementits legal counsel. (c) With respect In furtherance and not in limitation of the covenants of the parties contained in this Section 6.03, if any Proceeding, including any Proceeding by a private party, is instituted (or threatened to securing be instituted) challenging any Transaction as violative of any Regulatory Law, each of the Lender Consents, Buyer Company and Seller Parent shall cooperate in all respects with each other and shall use all their respective reasonable best efforts to secure each contest and resist any such Proceeding and to have vacated, lifted, reversed or overturned any Judgment that is in effect and that prohibits, prevents or restricts consummation of the Lender Consents, including taking Transactions. Notwithstanding the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership foregoing or any other Seller Subsidiary or Lessee provision of this Agreement, nothing in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect this Section 6.03 shall limit a party’s right to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted terminate this Agreement pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share 8.01(b)(i) or unit, 8.01(b)(ii) so long as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicableparty has, prior to the incurrence of such Franchise Feestermination, complied with its obligations under this Agreement, including this Section 6.03.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities Each of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties Parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, including (i) if determining whether any representation filings are required to be made with, or warranty made by it authorizations, consents, or them contained in this Agreement that is qualified as approvals are required or advisable to Seller Material Adverse Effectbe obtained from, Parent Material Adverse Effect or Buyer Material Adverse Effectany Governmental Entities under any Law, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) the giving of all other notices to, the failure by it making of all other filings with, and the obtaining of all other authorizations, consents and approvals from, other Governmental Entities and (iii) the execution and delivery of any additional documents that may be necessary or them desirable to comply with or satisfy in any material respect any covenantconsummate the transactions contemplated by, condition or agreement and to be complied with or satisfied by it under this Agreement; providedfully carry out the purposes of, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (cb) With respect to securing Without limiting the Lender Consentsgenerality of Section 5.2(a), Buyer and Seller the Parties shall cooperate with each other and use all reasonable best efforts to secure each obtain any third party consents, waivers, approvals and licenses necessary under any Contract to consummate the transactions contemplated by this Agreement or required to perform the Parties’ respective obligations under the Transitional Services Agreement; provided that the Sellers shall not be obligated to assign or transfer any Contract relating to Intellectual Property Rights used in the business of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure ScheduleSellers. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15consent, 1999waiver, Seller reasonably believes that (A) some approval or all of the Lender Consents will license cannot be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon on commercially reasonable terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overageconditions, the -40- 49 Lender Consent with respect to such Underlying Loan Parties shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause cooperate and assist the affected entities in obtaining alternative arrangements and (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize reduce the Prepayment Amounts; (iii) In amount and/or effect of disruption caused by any such failure to obtain a consent, waiver, approval or license. Notwithstanding the event thatforegoing, following the operation of clauses (i) and (ii) aboveno Party shall be obligated to make any payments or otherwise pay any consideration to any third party to obtain any such consent, all of the Lender Consents have not been obtained waiver, approval or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consentslicense. (dc) SellerDuring the period from the date hereof to the Closing, Westway Group will cause its wholly-owned Subsidiary Westway Terminals Company LLC, a Delaware limited liability company (“Westway Terminals”), to assign to Westway Feed all tanks and associated infrastructure situated at the terminal located at East Complex, Stockton, California (also referred to as “Stockton South”) that are owned by Westway Terminals, including the specific assets listed on Schedule B. Each of the Parties shall use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, such assignment. As soon as reasonably practicable after the closing of the Merger Agreement, Buyer and Parent shall use all reasonable best efforts Westway Terminals will, and Westway Group will cause Westway Terminals to, negotiate in good faith and agree appropriate amendments to minimize the Strategic Storage Alliance Agreement dated May 28th, 2009 (ithe “Alliance Agreement”) the amounts of so-called Property Improvement Plan costs between Westway Terminals and termination fees paid or payable by SellerBuyer, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively Sections 3.3, 3.4 and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half 3.5 of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsAlliance Agreement. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) parties agrees to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things actions that are necessary, proper or appropriate advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement and the Stockholders Agreement, including using its reasonable best efforts to accomplish the following: (i) the taking of all acts necessary to cause the conditions precedent set forth in Article VII to be satisfied; (ii) the obtaining of all necessary actions, nonactions and Consents from Governmental Entities and the making of all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any); (iii) the taking of all steps as may be necessary to avoid any suit, claim, action, investigation or proceeding by any Governmental Entity; (iv) the obtaining of all Consents from third parties; and (v) the defending of any suit, claim, action, investigation or proceeding, whether judicial or administrative, challenging or seeking to restrain or prohibit the consummation of the transactions contemplated by this Agreement, subject including the Merger. In connection with and without limiting the foregoing, the Company and its Board of Directors shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Stockholders Agreement, the Merger or any of the other transactions contemplated hereby or thereby, use their reasonable best efforts to ensure that the Merger and the other transactions contemplated hereby or thereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Stockholders Agreement, the Merger and the other transactions contemplated hereby or thereby. The Company and Parent will provide such assistance, information and cooperation to each other as is reasonably required to obtain any actions, nonactions and Consents referred to above and, in connection therewith, will notify the case other party promptly following the receipt of Seller to any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and will supply the exercise by the Seller Board other party with copies of all correspondence between such person or Special Committee prior to the Outside Date any of its duties under applicable law; provided howeverrepresentatives, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay on the one hand, and any money or Governmental Entity, on the other consideration or to incur any liability or other obligation (excepthand. (b) Seller Notwithstanding Section 6.03(a) or any other provision of this Agreement to the contrary, in no event shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, any party hereto be obligated to: (i) if agree to, or proffer to, divest or hold separate, or enter into any representation licensing or warranty made by it similar arrangement with respect to, any assets (whether tangible or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect intangible) or any such representation portion of any business of Parent, the Company or warranty that is not so qualified becomes untrue or incorrect in any material respect of their respective Subsidiaries; or (ii) litigate any suit, claim, action, investigation or proceeding, whether judicial or administrative, (A) seeking to prohibit or limit the ownership or operation by the Company, Parent or any of their respective Affiliates of a material portion of the failure by it business or them assets of the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, or to comply with require any such person to dispose of or satisfy in hold separate any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements portion of the parties business or the conditions to the obligations assets of the parties under this AgreementCompany and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, as a result of the Merger, or (B) seeking to prohibit Parent or any of its Affiliates from effectively controlling a material portion of the business or operations of the Company or its Subsidiaries. (c) With respect to securing Without limiting the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each generality of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage")foregoing, the Financing Overage Company shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and give Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes the defense of any litigation against the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior Company and/or its directors relating to the incurrence of such Franchise Feestransactions contemplated by this Agreement.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner conditions set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) this Agreement each of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its respective reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Merger, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all reasonable steps as may be necessary to obtain any necessary approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity (including under the HSR Act), (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed), (iv) subject to Section 7.04(b), engaging in divestitures, licenses, hold separate arrangements or similar matters (including covenants affecting business operating practices) and (v) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. (b) Notwithstanding anything to the contrary in this Agreement, neither Parent nor any of its Subsidiaries shall be required to agree (with respect to (i) Parent or its Subsidiaries or (ii) the Company or its Subsidiaries) to any divestitures, licenses, hold separate arrangements or similar matters, including covenants affecting business operating practices, if such divestitures, licenses, arrangements or similar matters, individually or in the aggregate, would reasonably be expected to have an adverse effect in excess of $10 million on either Parent and its Subsidiaries or the Company and its Subsidiaries. (c) The Company and Parent each shall keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement, subject in including promptly furnishing the case other with copies of Seller to the exercise notice or other communications received by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effectthe Company, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in of its Subsidiaries, from any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent Governmental Entity with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender ConsentsMerger. (d) SellerPrior to the Closing, Buyer the Company shall provide, and Parent shall cause its Subsidiaries to, and shall use all its reasonable best efforts to minimize cause the respective officers, employees, representatives and advisors, including legal and accounting, of the Company and its Subsidiaries to, provide all cooperation that may be reasonably requested by Parent in connection with the Financing, the planning and preparation for the transition and integration of the Company’s and the Parent’s businesses following the Closing, and the other transactions contemplated by this Agreement, including (i) participation in meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) assisting with the amounts preparation of so-called Property Improvement Plan costs materials for rating agency presentations, offering documents, private placement memoranda, prospectuses and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) similar documents required in connection with obtaining consent the Financing and (iii) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (provided that the execution and delivery of, and any obligations of the franchisors (including Company or its Subsidiaries under, any such documents must be fully conditional upon, or otherwise wholly subject to, the Franchise Consents) under each consummation of the Seller Franchise Agreements Closing), including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and customarily included in private placements under Rule 144A of the Securities Act to consummate the offering of senior or senior subordinated notes and including a certificate of the chief financial officer of the Company or any of its Subsidiaries with respect to solvency matters, comfort letters of accountants, consents of accountants for use of their reports in any Seller Property (collectively materials relating to the Financing, legal opinions, surveys and title insurance; provided, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its subsidiaries or otherwise result in any significant interference with the aggregateprompt and timely discharge by such employees of their normal duties. Parent shall, "Franchise Fees") and (ii) promptly upon request by the amounts paid or required to be paid Company, reimburse the Company for all reasonable out-of-pocket costs incurred by Seller, Seller Partnership the Company or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) Company Subsidiaries in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingscooperation. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner conditions set forth in Section 5.3(cthis Agreement (including, without limitation, those contained in Sections 6.03(b) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"c)), and each of the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions most expeditious manner practicable, the Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary Consents or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have vacated or reversed any decree, order or judgment entered by any court or other Governmental Entity that would restrain, prevent or delay the Closing and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall (i) use their reasonable best efforts to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, use their reasonable best efforts to ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and the other Transactions. Parent will take all action necessary to cause Sub to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement. Subject to applicable Law relating to the exchange of information, subject the Company and Parent and their respective counsel shall (i) have the right to review in advance, and to the extent practicable each shall consult the other on, any filing made with, or written materials to be submitted to, any Governmental Entity in connection with the Merger and the other Transactions, (ii) promptly inform each other of any communication (or other correspondence or memoranda) received from, or given to, the U.S. Department of Justice, the U.S. Federal Trade Commission, or any other Governmental Antitrust Entity and (iii) furnish each other with copies of all correspondence, filings and written communications between them or their subsidiaries or affiliates, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to this Agreement and the Merger. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any discussion, telephone call or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the Merger or the other Transactions and to participate in the case of Seller preparation for such discussion, telephone call or meeting. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the exercise by other under this Section 6.03 as "Antitrust Counsel Only Material" (as defined in the Seller Board or Special Committee prior Confidentiality Agreement). Notwithstanding anything to the Outside Date of its duties under applicable law; provided however, that nothing contrary in this Section 5.3 6.03, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company and its Subsidiaries. (i) Without limiting the generality of the undertakings pursuant to this Section 6.03, the parties hereto shall require provide or cause to be provided as promptly as practicable to Governmental Entities with regulatory jurisdiction over enforcement of any applicable federal, state, local or foreign antitrust, competition, premerger notification or trade regulation law, regulation or order ("Antitrust Laws" and each such Governmental Entity, a "Governmental Antitrust Entity") information and documents requested by any Governmental Antitrust Entity or necessary, proper or advisable to permit consummation of the Transactions, including preparing and filing any notification and report form and related material required under the HSR Act and any additional Consents and filings under any Antitrust Laws as promptly as practicable following the date of this Agreement (but in no event more than five business days from the date hereof) and thereafter to respond as promptly as practicable to any request for additional information or documentary material that may be made under the HSR Act and any additional Consents and filings under any Antitrust Laws; (ii) the parties shall use their best efforts to take such actions as are necessary or advisable to obtain prompt approval of consummation of the Transactions by any Governmental Antitrust Entity; and (iii) the parties shall use their best efforts to resolve any objections and challenges, including by contest through litigation on the merits, negotiation or other action, that may be asserted by any Governmental Antitrust Entity with respect to the transaction contemplated by this Agreement under the HSR Act and any Antitrust Laws. (c) Notwithstanding anything in this Agreement to the contrary, in no event will Parent or Buyer Sub be obligated to pay propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture, to accept any operational restriction, or take any other action that, in the reasonable judgment of Parent, could be expected to limit the right of Parent or the Surviving Corporation to own or operate all or any portion of their respective businesses or assets. With regard to any Governmental Antitrust Entity, neither the Company nor any Company Subsidiary (or any of their respective affiliates) shall, without Parent's prior written consent in Parent's sole discretion, discuss or commit to pay any money divestiture transaction, or other consideration discuss or commit to incur alter their businesses or commercial practices in any liability way, or other obligation (exceptotherwise take or commit to take any action that limits the Parent's freedom of action with respect to, or the Parent's ability to retain any of the businesses, product lines or assets of, the Surviving Corporation or otherwise receive the full benefits of this Agreement. (bd) Seller The Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer or Sub shall give prompt notice to Sellerthe Company, of (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (ce) With respect to securing As soon as reasonably practicable following the Lender Consentsexecution of this Agreement, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing DateParent, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein its capacity as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation sole stockholder of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may beSub, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsadopt this Agreement. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject Except to the extent that the parties' obligations are specifically set forth elsewhere in this ARTICLE V, upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner conditions set forth in this Agreement (including Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"4.2), and each of the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective the transactions contemplated by this Agreementeffective, subject in the case of Seller to most expeditious manner practicable, the exercise by Merger and the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptTransactions. (b) Seller The Company shall use commercially reasonable efforts in connection with the Debt Financing to (provided that none of the following shall unreasonably interfere with the operation of the Company): (i) provide to Parent all cooperation reasonably requested by Parent that is reasonably necessary and customary; (ii) participate in customary meetings, presentations, road shows, due diligence sessions and drafting sessions and sessions with rating agencies; (iii) assist Parent with the preparation of materials for rating agency presentations and offering documents (including private placement memoranda, bank information memoranda, prospectuses and similar documents) necessary and customary in connection with the Debt Financing; (iv) assist Parent with the preparation of an offering memorandum, including the "Business" section, the "Risk Factors" section and the "Management's Discussion and Analysis of Financial Conditions and Results of Operations" section, in accordance with customary practices for an offering under Rule 144A under the Securities Act; (v) furnish Parent with financial and other pertinent information regarding the Company as may be reasonably requested by Parent to consummate the Debt Financing, including all financial statements and financial data of the type and form customarily included in private placements under Rule 144A under the Securities Act and the financial data required by Item 3-01 of Regulation S-X under the Securities Act; (vi) assist Parent in procuring accountants' comfort letters and consents, payoff letters, lien releases, legal opinions, surveys and title insurance as reasonably requested by Parent; (vii) provide and execute customary officer's certificates and other similar documents as may be reasonably requested by Parent so long as no such document is effective until the occurrence of the Effective Date; (viii) cooperate with the marketing efforts of Parent and its financing sources for any Debt Financing to be raised by Parent to complete the transactions contemplated hereby, and (ix) take all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent in connection with the consummation of the Debt Financing. (c) All non-public or otherwise confidential information regarding the Company obtained by Parent pursuant to this paragraph shall be kept confidential in accordance with the Confidentiality Agreement. (d) Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket costs and third-party expenses incurred by the Company and its Subsidiaries and their respective representatives in connection with the cooperation set forth in this Section 5.13. Nothing contained in Section 5.13(b) shall require the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other liability in connection with the Debt Financing prior to the Effective Time. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective officers, directors and other representatives for and against any and all losses or damages suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith except with respect to information supplied by the Company specifically for inclusion or incorporation by reference therein. (e) The Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer or Merger Sub shall give prompt notice to Sellerthe Company, upon becoming aware (i) if that any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes has become untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect respect, (ii) of any condition, event or circumstance that will result in any of the conditions in Section 6.2(a) or 6.3(a) not being met, or (iiiii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (cf) With respect to securing the Lender Consents, Buyer Parent and Seller its Affiliates shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: not (i) In the event some amend or all otherwise change any of the Lender Consents are not obtainedits or Merger Sub's organization documents, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In enter into any transaction or take any action, that in the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all case of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree could reasonably be expected to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consentsa Parent Material Adverse Effect. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) parties agrees to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things actions that are necessary, proper or appropriate and advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement and the Company Voting Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of including using its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each accomplish the following as promptly as reasonably practicable following the date of this Agreement: (a) the Lender Consents, including taking of all acts necessary to cause the actions conditions precedent set forth in Section 5.3(dArticle VI to be satisfied, (b) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Seller's Disclosure Schedule. Each party shall update making of all necessary registrations, declarations and filings and the other on its progress at taking of all steps as may be necessary to obtain an approval (including the request of Company Required Consents and the other: (iParent Required Consents) In the event some or all of the Lender Consents are not obtainedwaiver from, or, to the extent any approval or waiver cannot be obtained, to avoid the Original Loan Amounts need to obtain an approval (including the Company Required Consents and the Parent Required Consents) or waiver from, or to avoid an action or proceeding by, any Governmental Entity and (c) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Company Voting Agreement, the Merger or any of the other transactions contemplated hereby or thereby, use its reasonable best efforts to allow the Merger and the other transactions contemplated by this Agreement and the Company Voting Agreement to be consummated as defined in the Financing Commitment), promptly as such Original Loan Amount may be increased pursuant to practicable on the terms contemplated by this Agreement and the Company Voting Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Financing CommitmentCompany Voting Agreement, exceed $454,600,000 less the amountMerger and the other transactions contemplated hereby and thereby. The Company, if anyGuarantor and Parent shall provide such assistance, by which information and cooperation to each other as is reasonably requested in connection with the proceeds under foregoing and, in connection therewith, shall notify the Financing Commitment are reduced as a result other person promptly following the receipt of any defect comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or loss referred to additional information in clause (i)(A) respect of Section 7.1(j) (whether any registration, declaration or not a Lender Property Determination (as defined below) filing with such Governmental Entity and shall have occurred) (a "Financing Overage")supply the other person with copies of all correspondence between such person or any of its representatives, on the one hand, and any Governmental Entity, on the other hand. In addition, the Financing Overage Company, Guarantor and Parent shall be used cooperate to promptly develop a mutually acceptable plan to obtain the Company Required Consents and the Parent Required Consents as a source of funds to prepay expeditiously as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received reasonably practicable and any prepayment penalty with respect theretowithout undue expense. To the extent an Underlying Loan and that either party or any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overageits subsidiaries is required to make any registration, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some declaration or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together filing with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) PUC in connection with obtaining the Ground Lessor Company Required Consents or the Parent Required Consents, such party shall use its reasonable best efforts to (i) provide the "Ground Lessor Amounts")other party an opportunity to review and comment on such registration, declaration or filing reasonably in each case advance of making any such registration, declaration or filing, (ii) give reasonable consideration to all comments proposed by the other party and (iii) if applicable, coordinate the submission of such registration, declaration or filing with the other party. Neither the Company nor any of its subsidiaries shall enter into or agree to any terms or conditions in connection with transactions contemplated hereby and by obtaining the Contribution Agreement. If Company Required Consents without the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders prior written consent of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger Parent (which consent shall not be adjusted pursuant to this Section 5.3(dunreasonably withheld or delayed). If None of Guarantor, Parent, Sub or any of their respective subsidiaries shall enter into or agree to any terms or conditions in connection with obtaining the Franchise Fees exceed $12,500,000 but are less than $25,000,000 Parent Required Consents without the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half prior written consent of the amount by Company (which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share consent shall not be unreasonably withheld or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsdelayed). (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller Coors and Parent); (ii) Molson agrees to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all other things necessary, proper or appropriate advisable under applicable Laws to consummate and make effective effective, in the most expeditious manner practicable, the Arrangement and the other transactions contemplated by this Agreement and the other Transaction Documents. (b) Each of Coors and Molson shall and shall cause its Subsidiaries to perform all obligations required or desirable to be performed by it or any of its Subsidiaries under this Agreement and the other Transaction Documents, cooperate with the other party in connection therewith, and do all such other acts and things as may be necessary or desirable in order to consummate and make effective, as soon as reasonably practicable, the transactions contemplated in this Agreement and, without limiting the generality of the foregoing, each party shall and where appropriate shall cause its Subsidiaries to: (i) use its reasonable best efforts to obtain the requisite approvals of this Agreement from its stockholders or shareholders, as the case may be, except to the extent that the board of directors of such party has effected a Change in Recommendation in compliance with the terms hereof (including Sections 2.5 and 6.2); (ii) apply for and use its reasonable best efforts to promptly obtain all Regulatory Approvals to be obtained by it and its Subsidiaries, including all filings required under the HSR Act with the Federal Trade Commission or the United States Department of Justice and any applicable antitrust, competition or similar Laws of another jurisdiction and, in doing so, keep the other party reasonably informed, subject to ensuring that confidential competitively sensitive information is exchanged among outside counsel only, as to the status of the proceedings related to obtaining the Regulatory Approvals, including, but not limited to, (A) providing such other party with copies of all material related applications and notifications prepared for submission to any other Person or Governmental Entity, in draft form, in order for such other party to provide its reasonable comments and providing such other party with copies of all related material correspondence, (B) consulting with the other party to the extent practicable in advance of any meeting or conference with Governmental Entities or, in connection with any proceeding by a private party, with any other Person and, to the extent permitted by such Governmental Entities, to permit the other party to attend such meetings and conferences, in each case to the extent relating to the transactions contemplated by this Agreement and (C) receiving the prior written consent of the other party before agreeing to extend any waiting period under the HSR Act or any other foreign antitrust merger control Laws or enter into any agreement with the Federal Trade Commission or the United States Department of Justice or any other Governmental Entity regarding antitrust, competition or similar Laws; (iii) use its reasonable best efforts to obtain all necessary Approvals required to be obtained by it or its Subsidiaries from third parties in connection with the transactions contemplated by this Agreement, subject in including the case Arrangement; (iv) carry out the terms of Seller the Interim Order and the Final Order applicable to it and use its reasonable best efforts to comply promptly with all requirements which applicable Laws may impose on it or its Subsidiaries with respect to the exercise transactions contemplated by this Agreement; and (v) promptly advise the Seller Board or Special Committee prior other party orally and, if then requested, in writing of any event occurring subsequent to the Outside Date date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effectthat, Parent Material Adverse Effect or Buyer Material Adverse Effectif uncured at the Effective Time, as the case may be, becomes untrue or incorrect in would render it incapable of satisfying any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions pursuant to the obligations of the parties under this AgreementArticle VII. (c) With respect to securing the Lender Consents, Buyer and Seller Molson shall cooperate provide Coors with each other and use all reasonable best efforts to secure each a copy of any purported exercise of the Lender ConsentsDissent Rights and written communications with such Molson Shareholder purportedly exercising the Dissent Rights; and not settle or compromise any Action brought by any present, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some former or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result purported holder of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) securities in connection with obtaining consent of the franchisors (transactions contemplated by this Agreement, including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution AgreementArrangement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.6.5

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate reasonably necessary to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby, including (i) the obtaining of all applicable actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all applicable registrations and filings and the taking of all reasonable steps to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all applicable consents, approvals or waivers from third parties and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by hereby and to fully carry out the purposes of this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, Agreement (it being understood that nothing in this Section 5.3 6.03 shall require Parent to (x) consent to any action or Buyer omission that would be inconsistent with Section 5.01 or (y) agree to pay amend or commit to pay waive any money or other consideration or to incur any liability or other obligation (exceptprovision of this Agreement). (b) Seller In connection with and without limiting the foregoing, (i) (A) the Company and Parent shall promptly submit a joint filing and any requested supplemental information (collectively, the “Joint Filing”) to the Committee on Foreign Investment in the United States (“CFIUS”) pursuant to 31 C.F.R. Part 800 with regard to the transactions contemplated hereby, (B) Parent shall take responsibility for preparation and submission of the Joint Filing and (C) the Company hereby agrees promptly to provide to Parent all necessary information and otherwise to assist Parent promptly in order for Parent to complete preparation and submission of the Joint Filing in accordance with this Section 6.03(b)(i), to respond to any inquiries from CFIUS or any other interested Governmental Entity and to take all reasonable steps to secure the approval of CFIUS of the transactions contemplated hereby, (ii) each party shall (A) promptly take all actions reasonably necessary to (1) file the notification and report form required for the transactions contemplated hereby and provide any supplemental information in connection therewith pursuant to the HSR Act and (2) make any filings required under any applicable competition, antitrust or similar Law of any jurisdiction outside the United States, and shall furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any filing with, or submission or response to, inquires from the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Entity in connection with obtaining approval under the HSR Act and any applicable competition, antitrust or similar Law of any jurisdiction outside the United States, (B) keep the other party apprised of the status of any inquiries or requests for additional information from, the FTC or the DOJ or any Governmental Entity in connection with obtaining approval under any applicable competition, antitrust or similar Law of any jurisdiction outside the United States and take all reasonable steps to comply promptly with any such inquiry or request and (C) participate in any interviews or meetings reasonably requested by the FTC or the DOJ or any Governmental Entity in connection with obtaining approval under any applicable competition, antitrust or similar Law of any jurisdiction outside the United States in connection with the consummation of the transactions contemplated hereby; and (iii) the Company and the Company Board shall (A) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any transactions contemplated hereby or this Agreement and (B) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, take all action necessary to ensure that the Merger and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and the other transactions contemplated hereby. (c) Each of the Company, on the one hand, and Parent and Sub, on the other hand, shall promptly inform the other of any material communication with the FTC, the DOJ, CFIUS or any other Governmental Entity (or any of their respective representatives) regarding the transactions contemplated hereby. (d) The Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer or Sub shall give prompt notice to Sellerthe Company, of (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller materiality, Company Material Adverse Effect, Effect or Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (ce) With respect Notwithstanding any provision herein to securing the Lender Consentscontrary, Buyer and Seller this Agreement shall cooperate with each not require Parent or any of its affiliates to agree to any prohibition, limitation or other and use all reasonable best efforts to secure each requirement of the Lender Consents, including taking the actions type set forth in Section 5.3(d) 7.02(c), and nothing in this Agreement shall authorize the Company or any Company Subsidiary to commit or agree to any of the Seller's Disclosure Scheduleforegoing. (f) The Surviving Corporation shall, simultaneously with the Effective Time, satisfy all outstanding obligations (including all loans and letter of credit reimbursement obligations) under the Company Credit Agreement. Each party shall update The parties acknowledge and agree that the other on its progress at Company Credit Agreement requires this Agreement to contain a contingency relating to the request approval of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts Required Lenders (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(Atherein) of and intend this Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii6.03(f) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consentssatisfy such requirement. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective the transactions contemplated by this Agreementeffective, subject in the case of Seller to most expeditious manner practicable, the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided howeverTransactions, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, orders, authorizations and approvals from Governmental Entities and the making of all necessary registrations, declarations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse EffectGovernmental Entity, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Agreement or the consummation of the failure Transactions, including seeking to have any stay or temporary restraining order entered by it any court or them other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to comply with or satisfy in any material respect any covenant, condition or agreement consummate the Transactions and to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect fully carry out the representations, warranties, covenants or agreements purposes of the parties or Transaction Agreements. In connection with and without limiting the conditions to foregoing, the obligations of Ashland Parties and the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller Marathon Parties shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some take all action necessary to ensure that no state takeover statute or all of the Lender Consents are not obtainedsimilar statute or regulation is or becomes applicable to any Transaction Agreement, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect Ancillary Agreement or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) Transaction and (ii) aboveif any state takeover statute or similar statute or regulation becomes applicable to any Transaction Agreement, any Ancillary Agreement or any Transaction, take all of action necessary to ensure that the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have Transactions may be consummated as promptly as practicable on the Common Merger Consideration reduced terms contemplated by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender ConsentsTransaction Agreements. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions most expeditious manner practicable, the Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, orders, authorizations and approvals from Governmental Entities and the making of all necessary registrations, declarations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of the Transaction Agreements. In connection with and without limiting the foregoing, the Ashland Parties and the Marathon Parties shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction Agreement, any Ancillary Agreement or any Transaction and (ii) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction Agreement, any Ancillary Agreement or any Transaction, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by the Transaction Agreements. Notwithstanding the foregoing, Ashland and its Representatives shall not be prohibited under this Section 9.03(a) from taking any action permitted by Section 8.02. Nothing in this Section 9.03(a) shall be deemed to require Marathon to waive any rights or agree to any limitation on the operations of Marathon or any of its subsidiaries or to dispose of any asset or collection of assets of any Marathon Party or any of their respective subsidiaries or affiliates, in each case that would have a material adverse effect on the business, condition (financial or other) or results of operations of (i) MAP, the Maleic Business and the VIOC Centers, taken as a whole, or (ii) Marathon and its subsidiaries, taken as a whole. (b) Upon the terms and subject to the conditions set forth in this Agreement, subject Ashland shall use its reasonable best efforts to cause the condition set forth in Section 10.02(c) (Specified Consents) to be satisfied. The parties, together with their financial advisors, shall consult periodically regarding the scope of “reasonable best efforts,” which will not require Ashland to incur commercially unreasonable costs to satisfy such condition. With respect to the Ashland Public Debt (as defined in this Section 9.03(b)), the parties acknowledge that Ashland may obtain consents through a tender offer or consent solicitation (or combination thereof), to be consummated on the Closing Date and to be commenced on a date mutually agreed by Ashland and Marathon but in any event no later than five business days after the satisfaction of the last to be satisfied of the conditions set forth in Sections 10.01(a) (Ashland Shareholder Approval), 10.01(c) (Antitrust) and 10.01(f) (Receipt of Private Letter Rulings; Tax Opinions) to expressly permit the Transactions and eliminate indenture covenants, certain events of default and other relevant provisions, all as reasonably deemed by Ashland necessary to consummate the Transactions (or, in the case of Seller to a combined tender offer and consent solicitation, otherwise desirable). “Ashland Public Debt” means securities outstanding as of the exercise by last day of the Seller Board or Special Committee prior to month immediately preceding the Outside Date month in which the tender offer and/or consent solicitation is commenced (the “Debt Consent Measurement Date”), issued under the Indenture dated as of its duties under applicable law; provided howeverAugust 15, that nothing in 1989, between Ashland and Citibank, N.A. and the Amendment and Restatement thereof dated as of August 15, 1990 (the “Indentures”), other than any such securities issued after the date of this Agreement. For purposes of this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b9.03(b) Seller shall give prompt notice to Parent and BuyerSection 10.02(c), and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained receipt of consents from the holders of not less than 66-2/3% in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) principal amount of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts Outstanding Securities (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant Indentures) of any series constitutes a consent with respect to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay entire principal amount as of the Closing Debt Consent Measurement Date, of such series. For the avoidance of doubt, receipt of consents from the holders of less than 66-2/3% in whole or in part, the outstanding amounts under all principal amount of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds Outstanding Securities of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan series shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining constitute a consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence portion of such Franchise Feesseries.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) parties agrees to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Merger, the Charter Amendment, the Share Issuance, the CVR Issuance and the other transactions contemplated by this Agreement, subject in including using its reasonable best efforts to accomplish the case following: (i) causing the conditions precedent set forth herein to be satisfied, (ii) obtaining all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and making of Seller all necessary registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities) and taking all steps that may be necessary to avoid any suit, claim, action, investigation or proceeding by any Governmental Entity, (iii) obtaining all necessary consents, approvals or waivers from, and providing all necessary notices to third parties, (iv) defending any suits, claims, actions, investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and, (v) executing and delivering any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement. Subject to the exercise by terms and conditions of this Agreement, the Seller Board or Special Committee prior Company, Parent and Merger Sub shall use all reasonable efforts to cause the Outside Date Effective Time to occur as soon as practicable after the Parent Stockholders’ Meeting. In case at any time after the Effective Time any further action is necessary to carry out the purposes of its duties under applicable law; provided howeverthis Agreement, that nothing in this Section 5.3 the proper officers and directors of each party shall require Parent or Buyer use their reasonable best efforts to pay or commit to pay any money or other consideration or to incur any liability or other obligation (excepttake all such necessary actions. (b) Seller shall Each of the Company and Parent will give prompt notice to the other of (i) any notice or other communication from any person alleging that the consent of such person is or may be required in connection with the Merger or any of the other transactions contemplated by this Agreement, (ii) any notice or other communication from any Governmental Entity in connection with the Merger or any of the other transactions contemplated by this Agreement, (iii) any litigation relating to, involving or otherwise affecting the Company, Parent and Buyer, and Parent and Buyer or their respective Subsidiaries that relates to the Merger or any of the other transactions contemplated by this Agreement. The Company shall give prompt written notice to SellerParent of any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, (i) if or any failure of the Company to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. Parent shall give prompt written notice to the Company of any representation or warranty made by it or them Merger Sub contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes becoming untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect respect, or (ii) any failure of the failure by it Parent or them Merger Sub to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions most expeditious manner practicable, the Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, subject to the limitations set forth in Section 6.04(c) and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement. Notwithstanding the foregoing, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties Company shall not be prohibited under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay 6.03(a) from taking any money or other consideration or to incur any liability or other obligation (exceptaction permitted by Section 5.02(b). (b) Seller The Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer or Sub shall give prompt notice to Sellerthe Company, of (in each case, to its Knowledge) (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller materiality or “Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes ” becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect Nothing in this Section 6.03 shall require any party to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some consent to any action or all of the Lender Consents are not obtainedomission by any other party that would be inconsistent with Section 5.01, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as absent such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect consent or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to amend or waive the condition that it receive any provision of the Lender Consentsthis Agreement. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as reasonably practicable, the Merger and the other Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers and consents from, the making of all necessary registrations, declarations and filings with and the taking of all reasonable steps as may be necessary to avoid a Proceeding by any Governmental Entity with respect to this Agreement or the Transactions, (ii) the defending or contesting of any Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall use reasonable best efforts to (A) take all action necessary to ensure that no Takeover Law or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if any Takeover Law or similar statute or regulation becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Transactions and this Agreement. (b) Parent and the Company shall, in consultation and cooperation with the other, (i) file with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the Notification and Report Form, if any, required under the HSR Act for the Merger or any of the other Transactions as promptly as practicable (but in no event later than twenty (20) business days after the date of this Agreement), (ii) make all necessary filings as required under the FATA as promptly as practicable, (iii) make all appropriate filings, notices, applications or similar documents required under any Foreign Antitrust Law as promptly as practicable; and (iv) if (A) a filing is formally or informally requested by CFIUS, (B) within 70 days of the date of this Agreement Parent or the Company determines a CFIUS filing is advisable related to the transactions contemplated by this AgreementAgreement or (C) a CFIUS Investigation is commenced for any other reason, subject then, in each case, the case parties hereto shall as soon as practicable submit to CFIUS a draft of Seller to a joint voluntary notice of the exercise transaction contemplated by this Agreement (the Seller Board or Special Committee prior to the Outside Date “CFIUS Notice”). Each of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer the Company shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as furnish to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, the other party such necessary information and reasonable assistance as the case other party may berequest in connection with its preparation of any filing or submission which is necessary under the HSR Act, becomes untrue or incorrect in any respect the FATA, the Exon-Xxxxxx Amendment, the NISPOM, the ITAR or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or Foreign Antitrust Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any substantive communication with, and any inquiries or requests for additional information from, the FTC, the DOJ, DDTC, CFIUS, DSS, and any other Governmental Entity regarding the Merger or any of the failure by it other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, substantive communications, substantive inquiries or them requests, provided that such materials may be redacted (x) to remove references concerning the valuation of the Company or other competitively sensitive information; (y) as necessary to comply with contractual arrangements or satisfy applicable Law; and (z) as necessary to address reasonable confidentiality concerns, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting or engage in any material substantive conversation with any Governmental Entity in respect of the Merger or any covenantof the other Transactions without the other party, condition (B) give the other party reasonable prior notice of any such meeting or agreement to be complied conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or satisfied by it under other written communications explaining or defending this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants Merger or agreements any of the parties other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the conditions other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the obligations Merger and the other Transactions, provided that that materials may be redacted (x) to remove references concerning the valuation of the parties Company; (y) as necessary to comply with contractual arrangements or applicable Law; and (z) as necessary to address reasonable confidentiality concerns, and (iv) comply with any inquiry or request from the FTC, CFIUS, DSS, DDTC, the DOJ or any other Governmental Entity as promptly as reasonably practicable. Parent agrees not to extend, directly or indirectly, any waiting period under this Agreementthe Antitrust Laws or enter into any agreement with a Governmental Entity to delay or not consummate the Merger or any of the other Transactions, except with the prior written consent of the Company, which consent may not be unreasonably withheld (provided such extension does not go beyond the Outside Date). (c) With respect In furtherance and not in limitation of the foregoing, Parent and Merger Sub agree to securing take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under any Antitrust Laws or the Lender ConsentsFATA that may be required by any Governmental Entity, Buyer CFIUS Approval and Seller DSS Approval, so as to enable the parties to close the Transactions as promptly as practicable (and in any event no later than the Outside Date), including committing to and effecting, by consent decree, hold separate orders, trust or otherwise, (i) the sale, license, holding separate, divestiture or other disposition of assets or businesses of Parent or the Company or any of their respective subsidiaries, (ii) terminating, relinquishing, modifying or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Parent or Company or their respective subsidiaries, (iii) creating any relationships, ventures, contractual rights, obligations or other arrangements of Parent or the Company or their respective subsidiaries, and (iv) accepting all such requirements, mitigation measures, or conditions as may be requested or required by CFIUS, DSS or any other Governmental Entity as necessary or advisable in connection with, or as a condition of, the receipt of CFIUS Approval or DSS Approval (each a “Remedial Action”); provided that the Company shall not be obligated to agree to, commit or effect, any Remedial Action unless such Remedial Action is conditioned upon, or will occur subsequent to, consummation of the Transactions. In furtherance and not in limitation of the foregoing, in the event that any litigation or other administrative or judicial action or proceeding is commenced, threatened or is foreseeable challenging any of the Transactions and such litigation, action or proceeding seeks, or would reasonably be expected to seek, to prevent, materially impede or materially delay the consummation of the Transactions, Parent shall take any and all action, including a Remedial Action, to avoid or resolve any such litigation, action or proceeding and each of the Company, Parent and Merger Sub shall cooperate with each other and use all its respective reasonable best efforts to secure each contest and resist any such litigation, action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Lender ConsentsTransactions as promptly as practicable (and in any event no later than the Outside Date). Notwithstanding anything in this Agreement to the contrary, including taking the actions set forth in prior two sentences of this Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment5.02(c), as such Original Loan Amount may be increased pursuant nothing in this Section 5.02(c) or otherwise shall require or obligate Parent and Merger Sub or any of their affiliates to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of take any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent Remedial Action with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In Parent, Merger Sub, or the event that at Company or any time after July 15of their respective subsidiaries or affiliates, 1999, Seller reasonably believes that (A) some or all including any of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment Remedial Actions described in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and through (iiiv) above, all of the Lender Consents have not been obtained first sentence in this Section 5.02(c), if any such Remedial Action individually or deemed waived, Seller may, at its sole option, agree in the aggregate has had or would reasonably be expected to have a material adverse effect on the Common Merger Consideration reduced by financial condition, assets, liabilities, businesses or results of operations of Parent, the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in fullCompany, and Buyer shall agree to waive the condition that it receive any of the Lender Consentstheir respective subsidiaries, taken as a whole. (d) SellerNeither Parent nor Merger Sub shall, Buyer and Parent nor shall use all reasonable best efforts they permit their respective subsidiaries or affiliates to, acquire or agree to minimize acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected to materially increase the risk of not obtaining (i) any applicable clearance, consent, approval or waiver under any U.S. Antitrust Law, the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership FATA or any other Seller Subsidiary Foreign Antitrust Law or Lessee in cash (ii) CFIUS Approval or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements DSS Approval with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsTransactions. (e) For purposes As soon as practicable after the date of this Agreement, Parent and the Company will submit to DSS and, to the extent applicable, any other Governmental Entity, notification of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior Transactions pursuant to the incurrence NISPOM and any other applicable national security or industrial security regulations, and submit and request approval of measures to mitigate foreign ownership, control or influence (“FOCI”) arising as a result of the Merger and the other transactions. Each of Parent and the Company shall use their respective reasonable best efforts to finally and successfully obtain CFIUS Approval and DSS Approval as promptly as practicable. (f) As soon as possible after the execution of this Agreement, but in no event later than twenty (20) business days thereafter, Parent shall prepare and file with DDTC a notice of the Transactions as required under the XXXX, 00 XXX 122.4(b). Each of Parent and the Company shall use reasonable best efforts to respond promptly to any inquiries received from DDTC for additional information or documentation, and to respond promptly to all inquiries and requests from DDTC in connection with such Franchise Feesnotice. (g) Each of Parent and the Company shall provide CFIUS, DSS or DDTC with any additional or supplemental information requested by CFIUS, DSS or DDTC during their respective review process as promptly as practicable, and in all cases within the amount of time allowed by CFIUS, DSS or DDTC.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and subject to the conditions herein providedset forth in this Agreement, Seller, Parent and Buyer shall: (i) each party shall use all its reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action appropriate actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable under applicable Law to consummate and make effective the transactions Transactions, and (B) to take any and all steps necessary, to eliminate each and every impediment under any Antitrust Law to close the Transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee hereby prior to the Outside Date (as it may be extended in accordance with Section 8.01(b)(i)), including (i) the satisfaction of its duties under applicable law; provided howeverthe conditions set forth in Article VII, that nothing in this Section 5.3 shall require Parent (ii) obtaining all necessary or Buyer advisable Authorizations and Consents from, making all necessary or advisable registrations, declarations and filings with and taking all reasonable steps as may be necessary or advisable to pay obtain any Authorizations or commit to pay Consents from, or avoid a Proceeding with, any money Governmental Entity or other consideration third party with respect to this Agreement or the Transactions, including the expiration or termination of any applicable waiting period in respect of HSR and other Antitrust Laws, (iii) furnishing all information required to incur be furnished in connection with obtaining any liability Authorizations or Consents from or making any filings with any Governmental Entity or other obligation third party, and promptly cooperating with and furnishing information in connection with any such requirements imposed upon any party or any of their respective Subsidiaries in connection with this Agreement or the consummation of the Transactions, (exceptiv) defending or contesting any Proceedings by any Governmental Entity or third party challenging this Agreement or the consummation of the Transactions and (v) executing and delivering any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. (b) Seller shall give prompt notice Without limiting the generality of Section 6.03(a), (A) each party agrees to make an appropriate filing, if necessary, pursuant to the HSR Act as promptly as reasonably practicable, but in any event no later than 20 Business Days following the date of this Agreement (unless a different period is otherwise agreed by the parties) and (B) each party agrees to make all necessary or advisable filings pursuant to any other Antitrust Law as promptly as reasonably practicable following the date of this Agreement, and in all cases, to supply as promptly as reasonably practicable to the applicable Governmental Entity any additional information and documentary material that may be requested pursuant to the HSR Act or such other Antitrust Law. (c) Without limiting the generality of Section 6.03(a), each of Parent and Buyerthe Company shall, and Parent and Buyer shall give prompt notice cause their respective affiliates, to Seller, (i) if furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any representation filing or warranty submission under the HSR Act or any other Antitrust Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any substantive communication with, and any inquiries or requests for additional information from, the United States Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”) and any other Governmental Entity regarding the Merger or any of the other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation (or it is not reasonably practicable for one party to do so), keep such party apprised with respect thereto, (D) cooperate with one another in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, substantive correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any Governmental Entity or them contained members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Merger and the other Transactions, (iv) respond to any inquiry or request for additional information or documentation from the FTC, the DOJ or any other Governmental Entity as promptly as reasonably practicable and (v) consult with one another, in good faith, in connection with any inquiry, hearing, investigation, Proceeding or litigation by, or negotiations with, any Governmental Entity relating to this Agreement that is qualified as to Seller Material Adverse EffectAgreement, Parent Material Adverse Effect the Merger or Buyer Material Adverse Effectany of the other Transactions, including the scheduling of, and strategic planning and preparation for, any meetings with any Governmental Entity relating thereto. Any such additional information furnished in connection with the preparation of any filing or submission shall be in substantial compliance with the requirements of the HSR Act and any other Antitrust Law, as the case may be. Notwithstanding anything in this Agreement to the contrary, becomes untrue Parent shall, on behalf of the parties, control and lead all communications and strategy for making filings under and obtaining any Authorizations or incorrect Consents with respect to any Antitrust Laws, including the expiration or termination of any applicable waiting period, and for dealing with the FTC, the DOJ and any other Governmental Entity with respect to the HSR Act and any other Antitrust Law, and Parent shall, on behalf of the parties, control and lead the defense strategy for dealing with any Proceedings challenging this Agreement or the consummation of the Transactions. The Company and Parent shall not, and shall cause their respective affiliates not to, (A) commit to or agree with any Governmental Entity to stay, toll or extend any applicable waiting period under the HSR Act or enter into a timing agreement with respect to any other Antitrust Law or (B) pull and refile any filing made under the HSR Act, in the case of each of clauses (A) or (B) without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. Parent shall bear all of the costs and expenses (including the Company’s costs and expenses) related to the joint engagement of any third-party consultants or economists (excluding, for the avoidance of doubt, legal advisors) in connection with any Authorizations or Consents with respect to any Antitrust Laws pursuant to a joint defense agreement, common interest agreement or other similar agreement entered into between the parties. Parent shall pay all filing fees required under the HSR Act or such other Antitrust Law by the Company and Parent. The parties may, as they deem advisable, designate any competitively sensitive materials provided to the other under this Section 6.03(d) or any other section of this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such representation outside counsel to employees, officers, or warranty directors of the recipient without the advance written consent of the party providing such materials. (d) Notwithstanding anything to the contrary set forth in this Agreement, nothing contained herein shall require Parent or any of its affiliates to propose, negotiate, effect, agree to or commit to, or execute any settlements, undertakings (affirmative or otherwise), consent decrees, stipulations or other agreements with any Governmental Entity or any other Person obligating Parent or any of its affiliates to: (i) sell, divest, license or otherwise convey or hold separate any asset (whether tangible or intangible) or business of Parent or its affiliates or terminate any existing relationship, contractual right or obligation of Parent or its affiliates, (ii) sell, divest, license or otherwise convey or hold separate any asset (whether tangible or intangible) or business of the Company or its affiliates or terminate any existing relationship, contractual right or obligation of Company or its affiliates, (iii) create any relationship, contractual right or obligation of Parent, the Company or any of their respective affiliates, or (iv) implement any limitations, prohibitions or restrictions affecting the business, operations or assets of Parent, the Company or any of their respective affiliates or on the ability of Parent or its affiliates to acquire, hold or exercise full rights of ownership of any Equity Interests in the Surviving Corporation or any of its Subsidiaries (including the right to vote such Equity Interests) or to control the business, operations or assets of Parent, the Company or any of their respective affiliates (each of the actions in the preceding clauses (i), (ii), (iii) and (iv), a “Remedial Action”), other than a Permitted Remedial Action (which Parent shall effect if necessary to obtain any Required Regulatory Approval expressly set forth on Section 7.01(b) of the Company Disclosure Letter); provided, that is not so qualified becomes untrue or incorrect Parent, Merger Sub and their respective affiliates shall only be required to agree to any Permitted Remedial Action if and to the extent ultimately necessary to obtain any Required Regulatory Approval expressly set forth on Section 7.01(b) of the Company Disclosure Letter. A “Permitted Remedial Action” shall mean (a) a Remedial Action of the type described in any material respect or clause (ii) of the failure by it definition thereof that, individually and in the aggregate with all other such Remedial Actions, involves assets or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements businesses of the parties Company and its Subsidiaries that, in the aggregate, generated no more than 10% of the consolidated revenues of the Company and its Subsidiaries for the fiscal year ended December 31, 2020 and (b) proposals, agreements, commitments or the conditions undertakings from Parent to supply and provide Parent’s products and services on commercially reasonable terms to the obligations of the parties under this Agreement. (c) With respect to securing the Lender ConsentsCompany’s competitors, Buyer and Seller shall cooperate consistent with each other and use all reasonable best efforts to secure each of the Lender Consentspast practice, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some provided that such proposals, agreements, commitments or all of the Lender Consents are not obtainedundertakings, to the extent the Original Loan Amounts (as defined individually or in the Financing Commitmentaggregate, would not have, and would not reasonably be expected to have, a substantial impact on the benefits that Parent reasonably expects it and its Subsidiaries to derive from the Transactions. The Company shall not, and shall cause its affiliates not to propose, negotiate, effect, agree to or commit to, or execute any settlements, undertakings (affirmative or otherwise), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitmentconsent decrees, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of stipulations or other agreements with any defect Governmental Entity or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage")any other Person obligating Parent, the Financing Overage Company or any of their respective affiliates to take or commit to take any Remedial Action without the prior written consent of Parent. Nothing in this Section 6.03 shall be used as a source of funds require any party to prepay as of the Closing Date, in whole take or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (agree to take any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent action with respect to its business or operations pursuant to this Section 6.03 unless the effectiveness of such Underlying Loan agreement or action is conditioned upon the Closing. Parent and its Subsidiaries shall be deemed obligated to have been obtained; (ii) In defend, litigate or participate in the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds litigation of any such financing, together with Proceeding brought by or against any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) Governmental Entity in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid Authorization or required to be paid by Seller, Seller Partnership or Consent from any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) Governmental Entity in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsTransactions. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as reasonably practicable, the transactions Offer, the Merger and the other Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers and consents from, the making of all necessary registrations, declarations and filings with and the taking of all reasonable steps as may be necessary to avoid a Proceeding by any Governmental Entity with respect to this Agreement or the Transactions and (ii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall (A) take all action necessary to ensure that no Takeover Law or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if any Takeover Law or similar statute or regulation becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Transactions and this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except. (b) Seller shall give prompt notice to Parent and Buyerthe Company shall, in consultation and Parent cooperation with the other, file with the United States Federal Trade Commission (the “FTC”) and Buyer the United States Department of Justice (the “DOJ”) the notification and report form, if any, required under the HSR Act for the Offer, the Merger or any of the other Transactions as promptly as reasonably practicable (but in no event later than ten business days after the date of this Agreement). Any such filings shall give prompt notice to Seller, (i) if any representation be in substantial compliance with the requirements of the HSR Act or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effectthe applicable Foreign Antitrust Laws, as the case may be. Each of Parent and the Company shall (i) subject to applicable Law, becomes untrue furnish to the other party as promptly as reasonably practicable such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or incorrect in any respect submission which is necessary under the HSR Act or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or Foreign Antitrust Law, (ii) give the other party reasonable prior notice of any such filings or submissions and promptly notify the other party of any material communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other Governmental Entity regarding the Offer, the Merger or any of the failure by it or them other Transactions, and, subject to comply with or satisfy in any material respect any covenantapplicable Law, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update permit the other on party (and its progress at counsel) to review and discuss in advance, and consider in good faith the request of views of, and secure the other: participation of, the other party in connection with, any such proposed filings, submissions, communications, inquiries or requests, (iiii) In unless prohibited by applicable Law or by the event some or all of the Lender Consents are not obtainedapplicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Original Loan Amounts Offer, the Merger or any of the other Transactions without the other party, (as defined B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the Financing Commitment), as such Original Loan Amount may be increased pursuant to event one party is prohibited by applicable Law or by the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect applicable Governmental Entity from participating in or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (attending any such loanmeeting or engaging in any such conversation, an "Underlying Loan") which have not been received and any prepayment penalty keep such party apprised with respect thereto. To , (D) cooperate in the extent an Underlying Loan filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Offer, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) subject to applicable Law, furnish the other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any related prepayment penalty will be paid as Governmental Entity or members of any Governmental Entity’s staff, on the Closing Date with the proceeds of a Financing Overageother hand, the Lender Consent with respect to such Underlying Loan shall be deemed this Agreement, the Offer, the Merger and the other Transactions and (iv) respond to have been obtained; (ii) In any inquiry or request from the event that at FTC, the DOJ or any time after July 15, 1999, Seller other Governmental Entity as promptly as reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereofpracticable. The proceeds of such financings shall be used solely parties agree not to prepay as of extend, directly or indirectly, any waiting period under the Closing Date in whole HSR Act or in part one any Foreign Antitrust Law or more of enter into any agreement with a Governmental Entity to delay or not to consummate the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing OverageOffer, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid Merger or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Sellerother Transactions, Buyer and Parent shall use all reasonable best efforts to minimize (i) except with the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining prior written consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required other party not to be paid by Sellerunreasonably withheld, Seller Partnership delayed or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsconditioned. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, Sub and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required Company agrees to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate necessary to fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective effective, in the transactions contemplated most expeditious manner practicable, the Merger and the other Transactions, including (i) obtaining all necessary actions or non-actions, waivers, Consents, qualifications and approvals from Governmental Entities and making all necessary registrations, filings and notifications and taking all reasonable steps as may be necessary to obtain an approval, clearance, non-action letter, waiver or exemption from any Governmental Entity (including under the HSR Act); (ii) obtaining all necessary consents, qualifications, approvals, waivers or exemptions from non-governmental third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iv) executing and delivering any additional documents or instruments necessary to consummate the Transactions and to carry out this Agreement. (b) Without limiting the foregoing, subject each of the Company, Parent and Merger Sub shall use its reasonable best efforts to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as practicable (but in any event no later than January 4, 2013) and any other required submissions under any antitrust law that the Company or Parent determines should be made, in each case with respect to the Transactions, to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act or any other applicable antitrust law, and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. (c) The Company, Parent and Merger Sub shall cooperate with each other in connection with the making of all such filings, including furnishing to the others such information and assistance as a party may reasonably request in connection with its preparation of any filing or submission that is necessary or allowable under applicable competition or other Law or requested by any competition authorities. The Company, Parent and Merger Sub shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Law (including all information required to be included in the case Company’s disclosure documents) in connection with the Transactions. To the extent permitted by applicable Law or any relevant Governmental Entity, and subject to all applicable privileges, including the attorney-client privilege, each party hereto shall (i) give the other parties hereto prompt notice upon obtaining knowledge of Seller the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to the exercise Merger or any of the other Transactions, (ii) keep the other parties hereto informed as to the status of any such request, inquiry, investigation, action or legal proceeding and (iii) promptly inform the other parties hereto of any material communication to or from the U.S. Federal Trade Commission, the U.S. Department of Justice, any foreign competition authority or any other Governmental Entity regarding the Merger or any of the other Transactions. The parties hereto will consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto, including reasonable access to any materials submitted in connection with any proceedings under or relating to the HSR Act or any other applicable Federal, state or foreign competition, merger control, antitrust or similar Law, including any proceeding under 16 C.F.R. § 803.20. (d) Any party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.03 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient, unless express written permission is obtained in advance from the source of such materials. In addition, except as may be prohibited by any Governmental Entity or by any Law, each party hereto will permit authorized Representatives of the other parties to be present at each meeting or telephone conference of which such party shall have advance notice (other than telephone conversations to the extent they relate solely to administrative matters) with representatives of any Governmental Entity relating to any request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with any such request, inquiry, investigation, action or proceeding. (e) Without limiting any other obligations of Parent hereunder, Parent shall respond to and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Entity with respect to the Transactions, and shall defend any action, suit, dispute, litigation, proceeding, hearing, arbitration or claim by or before any Governmental Authority, whether judicial or administrative, whether brought by private parties or Governmental Entities or officials, challenging this Agreement or the consummation of the Transactions. Parent shall use reasonable best efforts to take any and all action necessary to ensure that no Governmental Entity enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any Law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger or the Transactions, or to ensure that no Governmental Entity with the authority to clear, authorize or otherwise approve the consummation of the Merger, fails to do so by the Seller Board Outside Date. In the event that any action is threatened or Special Committee instituted challenging the Merger as violative of any Law, Parent shall use reasonable best efforts to take all action necessary to avoid or resolve such action. In the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the Transactions in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the Transactions, Parent shall use reasonable best efforts to take promptly any and all steps necessary to vacate, modify or suspend such injunction or order so as to permit such consummation prior to the Outside Date. Subject to Section 6.03(f), the required actions by Parent hereunder shall include, without limitation, the proposal, negotiation and acceptance by Parent prior to the Outside Date of (i) any and all divestitures of the businesses or assets of it or its duties under subsidiaries or its controlled affiliates or of the Company or any of the Company Subsidiaries, (ii) any agreement to hold any assets of Parent or its subsidiaries or its controlled affiliates or of the Company or any of the Company Subsidiaries separate, (iii) any agreement to license any portion of the business of Parent or its subsidiaries or its controlled affiliates or of the Company or any of the Company Subsidiaries, (iv) any limitation to or modification of any of the businesses, services or operations of Parent or its subsidiaries or its controlled affiliates or, following the Closing, of the Company or any of the Company Subsidiaries, and (v) any other action (including any action that limits the freedom of action, ownership or control with respect to, or ability to retain or hold, any of the businesses, assets, product lines, properties or services of Parent or its subsidiaries or its controlled affiliates or of the Company or any of the Company Subsidiaries), in each case as may be required by any applicable law; provided however, Governmental Entity in order to obtain approval for the Transactions. The parties hereto acknowledge and agree that nothing the obligations of the Company hereunder shall not include any requirement of the Company to defend any proceeding challenging this Agreement or the consummation of the Transactions beyond the Outside Date. (f) Notwithstanding anything to the contrary in this Section 5.3 Agreement, Parent’s obligations under this Agreement shall not include taking any action that, and Parent shall not be required to accept (and the Company and the Company Subsidiaries shall not accept without Parent’s prior written consent) any undertaking or condition, to enter into any consent decree, to make any divestiture, to accept any operational restriction, or take any other action (each of the foregoing, a “Regulatory Requirement”) that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or results of operations of (i) Parent and its subsidiaries, taken as a whole (excluding the Company and the Company Subsidiaries) or (ii) the Company and the Company Subsidiaries, taken as a whole. For purposes of the immediately preceding sentence, one or more Regulatory Requirements shall be deemed to constitute a “material adverse effect” if one or more of such Regulatory Requirements (X) would reasonably be expected to, individually or in the aggregate, have a Gross Economic Value, assuming the consummation of such Regulatory Requirement, equal to or greater than $131.0 million or (Y) would require Parent or Buyer its subsidiaries to pay license or commit otherwise make available television or online measurement data to pay any money third party who intends to offer a service to customers incorporating such television or other consideration online measurement data to customers who do not also subscribe to the services provided by Parent or its subsidiaries related to incur any liability such data. For purposes of this Agreement, “Gross Economic Value” of each Regulatory Requirement shall be the Reduced EBITDA of either (A) Parent or other obligation the Company or (except (bB) Seller shall give prompt notice to both Parent and Buyerthe Company if any businesses, and services or assets of both Parent and Buyer shall give prompt notice the Company (or their respective subsidiaries) are subject to Sellersuch Regulatory Requirement, (iX) if any representation in the case of clause (A), multiplied by the Parent Multiple or warranty made the Company Multiple (as the case may be) and (Y) in the case of clause (B), multiplied by it the Parent Multiple or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effectthe Company Multiple, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein providedhereof, Sellerthe Company, Parent and Buyer Merger Sub shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, Parent and the consummation of the transactions contemplated herebyCompany shall cause their respective Subsidiaries to, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all their reasonable best efforts to take, or cause to be taken, all other action actions, and do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreementhereby as promptly as practicable, subject in the case of Seller including: (a) obtaining from any Governmental Entity or, to the exercise extent reasonably requested by Parent, any other third party consents, licenses, permits, waivers, approvals, authorizations or orders, making any filings and sending any notices, in each case, which are material and required to be obtained, made or sent by the Seller Board Company or Special Committee prior to Parent or any of their Subsidiaries in connection with the Outside Date authorization, execution and delivery of its duties under applicable lawthis Agreement and the consummation of the Merger; provided provided, however, that nothing in this Section 5.3 shall require Parent connection therewith none of the Company or Buyer its Subsidiaries will be required to pay make or commit agree to pay make any money payment or other consideration accept any material conditions or obligations, including amendments to incur any liability or other obligation (exceptexisting conditions and obligations; and (b) Seller shall give prompt notice subject to Parent the limitation set forth in the proviso to the penultimate sentence of Section 6.13(b), executing or delivering any additional instruments necessary to consummate the Merger and Buyer, to fully carry out the purposes of this Agreement. The Company and Parent shall cooperate with each other in connection with the making of all such filings, submissions, applications and Buyer requests. The Company and Parent shall give prompt notice each use their reasonable best efforts to Sellerfurnish to each other (on an outside counsel basis if appropriate) all information required for any filing, (i) if submission, application or request to be made pursuant to applicable Law in connection with the Merger. The Company shall notify Parent promptly after becoming aware of any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect being or Buyer Material Adverse Effect, as the case may be, becomes becoming untrue or incorrect in any respect inaccurate, or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) failure of the failure by it Company or them any of its Subsidiaries to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, such that the conditions set forth in Section 7.2(a) or Section 7.2(b) would not be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties Company or the conditions to the obligations of the parties Parent and Merger Sub under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject Except to the extent that the parties’ obligations are specifically set forth elsewhere in this ARTICLE V, upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner conditions set forth in this Agreement (including Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"4.2), and each of the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective the transactions contemplated by this Agreementeffective, subject in the case of Seller to most expeditious manner practicable, the exercise by Merger and the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptTransactions. (b) Seller The Company shall use commercially reasonable efforts in connection with the Debt Financing to (provided that none of the following shall unreasonably interfere with the operation of the Company): (i) provide to Parent all cooperation reasonably requested by Parent that is reasonably necessary and customary; (ii) participate in customary meetings, presentations, road shows, due diligence sessions and drafting sessions and sessions with rating agencies; (iii) assist Parent with the preparation of materials for rating agency presentations and offering documents (including private placement memoranda, bank information memoranda, prospectuses and similar documents) necessary and customary in connection with the Debt Financing; (iv) assist Parent with the preparation of an offering memorandum, including the “Business” section, the “Risk Factors” section and the “Management’s Discussion and Analysis of Financial Conditions and Results of Operations” section, in accordance with customary practices for an offering under Rule 144A under the Securities Act; (v) furnish Parent with financial and other pertinent information regarding the Company as may be reasonably requested by Parent to consummate the Debt Financing, including all financial statements and financial data of the type and form customarily included in private placements under Rule 144A under the Securities Act and the financial data required by Item 3-01 of Regulation S-X under the Securities Act; (vi) assist Parent in procuring accountants’ comfort letters and consents, payoff letters, lien releases, legal opinions, surveys and title insurance as reasonably requested by Parent; (vii) provide and execute customary officer’s certificates and other similar documents as may be reasonably requested by Parent so long as no such document is effective until the occurrence of the Effective Date; (viii) cooperate with the marketing efforts of Parent and its financing sources for any Debt Financing to be raised by Parent to complete the transactions contemplated hereby, and (ix) take all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent in connection with the consummation of the Debt Financing. (c) All non-public or otherwise confidential information regarding the Company obtained by Parent pursuant to this paragraph shall be kept confidential in accordance with the Confidentiality Agreement. (d) Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket costs and third-party expenses incurred by the Company and its Subsidiaries and their respective representatives in connection with the cooperation set forth in this Section 5.13; provided, nothing contained in Section 5.13(b) shall require the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other liability in connection with the Debt Financing prior to the Effective Time. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective officers, directors and other representatives for and against any and all losses or damages suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith except with respect to information supplied by the Company specifically for inclusion or incorporation by reference therein. (e) The Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer or Merger Sub shall give prompt notice to Sellerthe Company, upon becoming aware (i) if that any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes has become untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect (ii) of any condition, event or circumstance that will result in any of the conditions in Section 6.2(a) or 6.3(a) not being met, or (iiiii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (cf) With respect to securing the Lender Consents, Buyer Parent and Seller its Affiliates shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: not (i) In the event some amend or all otherwise change any of the Lender Consents are not obtainedits or Merger Sub’s organization documents, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In enter into any transaction or take any action, that in the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all case of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree could reasonably be expected to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consentsa Parent Material Adverse Effect. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and unless, to the consummation of extent permitted by Section 5.2(b), the transactions contemplated herebyCompany Board approves or recommends a Superior Proposal, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including (i) using reasonable best efforts to take all actions necessary to cause the conditions to Closing set forth in Article VII of this Agreement to be satisfied as promptly as practicable after the date of this Agreement, (ii) the taking of all reasonable steps as may be necessary to obtain a Consent or waiver from any Governmental Entity that is required to be obtained to satisfy the condition set forth in Section 7.1(b) and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) that are required to be made to satisfy the condition set forth in Section 7.1(b) and (iii) the taking of all commercially reasonable steps as may be necessary to obtain all necessary consents, approvals or waivers from any third parties reasonably requested by Parent to be obtained in connection with the Merger under the Material Contracts, provided, however, that in no event shall Parent, Merger Sub or the Company be required to pay any fee, penalty or other consideration to any landlord or other person to obtain any such consent, approval or waiver, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and Parent shall duly file with the U.S. Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “Antitrust Division”) the notification and report form (the “HSR Filing”) required under the HSR Act with respect to the transactions contemplated by this Agreement and as promptly as practicable. The HSR Filing shall be in compliance with the requirements of the HSR Act. Each of Parent and the Company shall cooperate with the other to the extent necessary to assist the other in the preparation of its HSR Filing and to request early termination of the waiting period required by the HSR Act. (b) Each of Parent and the Company shall (i) respond as promptly as practicable under the circumstances to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from either Governmental Entity, (ii) not extend any waiting period under the HSR Act without the prior written consent of the other parties thereto (such consent not to be unreasonably withheld or delayed) and (iii) not enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement without the prior written consent of the other. Parent and the Company shall, from the date hereof until the Outside Date, use their respective reasonable best efforts to avoid the entry of, or to have lifted, vacated or terminated, any injunction, decree, order or judgment that would restrain, prevent or delay the Closing (a “Legal Impediment”). (c) For purposes of this Section 6.3, “reasonable best efforts” shall, to the extent necessary to obtain the waiver or Consent from any Governmental Entity required to satisfy the condition set forth in Section 7.1(b) or to avoid the entry of or have lifted, vacated or terminated any Legal Impediment, in each case prior to the Outside Date, require Parent or, subject to clause (d) below, the Company to (i) propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order or otherwise, and in connection with the consummation of the Merger, the sale, divestiture or disposition of assets or businesses of the Company and the Company Subsidiaries that are not part of the Company’s business and/or assets or businesses of Parent or any of its affiliates (or equity interests held by Parent or any of its affiliates in entities with assets or businesses) that relate to the Company’s business or (ii) otherwise offer to take or offer to commit to take any action which it is capable of taking and, if the offer is accepted, take or commit to take such action, that limits its freedom of action with respect to, or its ability to retain, any of the assets or businesses of the Company and the Company Subsidiaries that are not part of the Company’s business and/or any assets or businesses of Parent or any of its affiliates (or equity interests held by Parent or any of its affiliates in entities with assets or businesses) that relate to the Company’s business; provided, however, that Parent shall in no event be obligated to take any action pursuant to the foregoing if the taking of such action is reasonably likely to be materially burdensome to Parent and its Subsidiaries taken as a whole or to impact in a materially adverse manner (x) the operations of Parent or (y) the economic or business benefits to Parent of the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) SellerFor purposes of this Section 6.3, Buyer and Parent shall use all “reasonable best efforts efforts” shall not require the Company or any Company Subsidiary to minimize amend or to agree to amend any Contract as a condition to obtaining any waiver or Consent, except to the extent that any such amendment or agreement is requested by the Parent and is expressly conditioned upon the consummation of the Merger and the other transactions contemplated hereby. In addition, the Company shall agree if, but solely if, requested by Parent to divest, hold separate or otherwise take or commit to take any action that limits Parent’s freedom of action with respect to, or its ability to retain, any of the businesses or assets of the Company or any of the Company Subsidiaries, provided that any such action shall be expressly conditioned upon the consummation of the Merger and the other transactions contemplated hereby. (e) In addition, each of Parent and the Company shall, subject to applicable Law and the limitations set forth in Section 6.2 and except as prohibited by any applicable representative of any applicable Governmental Entity, (i) promptly notify the amounts other party of so-called Property Improvement Plan costs any written communication to that party from any Governmental Entity and termination fees paid or payable by Seller, Seller Partnership or permit such other party to review in advance any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring proposed written communication to any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregateforegoing, "Franchise Fees") and (ii) not agree to participate in any substantive meeting or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning this Agreement or the amounts paid or required to be paid by SellerMerger unless it consults with the other party in advance and, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in extent permitted by such Governmental Entity, gives the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given other party the opportunity to attend and participate thereat and (iii) furnish the other party with copies of all correspondence, filings and written communications (and memoranda setting forth the substance thereof) between them and its affiliates and their respective Representatives on the one hand, and any Governmental Entity or members or their respective staffs on the other hand, in all such meetingseach case with respect to this Agreement and the transactions contemplated by this Agreement. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither SellerHoldco, Sub and the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other considerationCompany, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excessshall, and to the Merger Consideration and Partnership Merger Consideration per share or unitextent applicable shall cause their respective controlled affiliates to use, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all their reasonable best efforts to take, or cause to be taken, all other action reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Transactions, including (i) the obtaining of a written notification issued by the Committee on Foreign Investment in the United States (“CFIUS”) that it has concluded a review of the notification voluntarily provided pursuant to the Defense Production Act of 1950, as amended, and determined not to conduct a full investigation or, if a full investigation is deemed to be required, notification that the U.S. government will not take action to prevent the transactions contemplated hereby from being consummated. (such notification, “CFIUS Approval”); (provided, that for purposes of obtaining CFIUS Approval, the reasonable best efforts shall include, without limitation, promptly making any pre notification and notification filings required in connection with the CFIUS Approval and providing any reasonable information requested by CFIUS or any other agency or branch of the U.S. government in connection with the CFIUS review or investigation of the transactions contemplated hereby; provided further, that such reasonable best efforts with respect to Parent shall include agreeing to any reasonable action, restriction or condition proposed by CFIUS or any other agency or branch of the U.S. government as a condition to obtaining the CFIUS Approval, provided that such action, restriction or condition would not have a material adverse effect on Parent’s ability to own and operate the Company), (ii) the obtaining of all other necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all other reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except. (b) Seller shall give prompt notice to Parent Between the date hereof and Buyerthe Closing, each of the Company and Parent and Buyer shall give prompt notice to Seller, promptly notify the other of (i) any notice or other communication from any person alleging that the consent of such person is or may be required in connection with the Transactions, including the Merger, (ii) any notice or communication from any Governmental Entity in connection with the Transactions, including the Merger, and (iii) any action or proceeding commenced or, to the knowledge of the Company or the Parent, threatened against the Company or Parent or any of their respective subsidiaries which, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 3.12 or which relates to the consummation of the Transactions, including the Merger. The Company shall, promptly upon knowledge thereof, give notice to Parent, and Parent, Holdco or Sub shall, promptly upon knowledge thereof, give notice to the Company, of (a) the occurrence, or non-occurrence, of any event the occurrence, or non-occurrence, of which has caused or would be reasonably likely to cause (i) the breach or failure to be true and correct of any representation or warranty made by it or them contained in this Agreement, which breach or failure to be true and correct would give rise to the failure of a condition in Section 6.02(a) or Section 6.03(a), as applicable or (ii) the failure by it to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it under this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect(b) any failure of the Company or Parent, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreementhereunder; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result delivery of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted notice pursuant to this Section 5.3(d). If 5.03(b) shall not (a) affect the Franchise Fees exceed $12,500,000 but are less than $25,000,000 determination of (i) whether the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half satisfaction of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares Closing conditions set forth in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall Article VI have been consulted by Parentsatisfied or waived, Buyer (ii) whether a right of termination exists under Article VII, (iii) whether there is any right to indemnification under Section 5.08 or Lessee, as applicable, prior Article VIII or (b) otherwise limit or affect the rights and remedies available hereunder to the incurrence of party receiving such Franchise Feesnotice.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer each of the parties shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Prime/Horizon Merger Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Prime/Horizon Merger Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, hereby including without limitation any required filings and consents confirmation of the transactions under the HSR Act, Contribution Agreement and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent)authorizations; (ii) use all reasonable best efforts (other than the payment of money) to obtainobtain in writing any consents required from third parties to effectuate the Mergers, in writing, the such consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") be in form reasonably satisfactory to Seller and Buyer, provided however, that, without each of the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly)parties; and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement. If at any time after the Prime/Horizon Merger Effective Time any further action is necessary or desirable to carry out the purpose of this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 each party shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (excepttake all such necessary action. (b) Seller Horizon and Horizon Partnership shall use all reasonable best efforts to obtain from Ernst & Young LLP access to all work papers relating to audits of Horizon and Horizon Partnership performed by Ernst & Young LLP, and the continued cooperation of Ernst & Young LLP with regard to the preparation of consolidated financial statements for the Surviving Company. (c) Horizon and Horizon Partnership shall give prompt notice to Parent Prime and BuyerPrime Partnership, and Parent Prime and Buyer Prime Partnership shall give prompt notice to SellerHorizon and Horizon Partnership, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, materiality becomes untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as practicable, the transactions Offer, the Merger and the other Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers and Consents from, the making of all necessary registrations, declarations and filings with and the taking of all reasonable steps as may be necessary to avoid a Proceeding by any Governmental Entity with respect to this Agreement or the Transactions, (ii) the defending or contesting of any Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall, and the Company shall cause the Company Subsidiaries to, (A) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if any state takeover statute or similar statute or regulation becomes or purports to be applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to eliminate or minimize the effect of such statute or regulation on the Transactions and this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except. (b) Seller shall give prompt notice to Without limiting the generality of the parties’ obligations under Section 6.03(a) and Section 6.03(c), and in furtherance thereof, Parent and Buyerthe Company shall, in consultation and Parent and Buyer shall give prompt notice to Sellercooperation with the other, (i) file, as promptly as practicable (but in no event later than ten business days after the date of this Agreement), with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required under the HSR Act for the Offer, the Merger or any representation of the other Transactions, (ii) file, as promptly as practicable (but in no event later than ten business days after the date of this Agreement), all filings, notices, applications or warranty similar notifications required under any competition, merger control, antitrust or similar Law of any jurisdiction (other than the HSR Act, collectively, the “Foreign Merger Control Laws”) for the Offer, the Merger or any of the other Transactions, (iii) unless the parties agree otherwise in writing, (A) submit, as promptly as practicable, to the Committee on Foreign Investment in the United States (“CFIUS”) a draft joint voluntary notice under the Exon-Xxxxxx Amendment with respect to the Transactions, (B) file, as promptly as practicable, with CFIUS a joint voluntary notice and (C) supply, as promptly as practicable, any additional information and documentary material that may be requested in connection with the CFIUS review process, and (iv) (A) file, as promptly as practicable, all appropriate filings, notices, applications or similar notifications or documents required or advisable in order to obtain such approvals of the U.S. Defense Security Service, U.S. Department of Energy or any other Governmental Entity as may be required for the Company and the Company Subsidiaries to maintain their respective facility security clearances and continue to be in compliance with and perform under the Contracts of the Company and the Company Subsidiaries, in each case after the Effective Time, or under any U.S. national industrial security requirements or Laws or similar foreign investment Laws, requirements or regulations of the United States (other than the filings described in clause (iii), collectively, the “FOCI Requirements”), and (B) supply, as promptly as practicable, any additional information and documentary material that may be required or requested in connection with any review under the FOCI Requirements. Any such filings shall be in substantial compliance with the requirements of the HSR Act, the applicable Foreign Merger Control Law, the Exon-Xxxxxx Amendment or the applicable FOCI Requirements, as applicable. Each of Parent and the Company shall (w) furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or submission which is necessary under the HSR Act, the Xxxxxxx Act, as amended (the “Xxxxxxx Act”), the Federal Trade Commission Act, as amended (the “FTC Act”) or any Foreign Merger Control Law, the Exon-Xxxxxx Amendment or any FOCI Requirements, (x) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other Governmental Entity regarding the Offer, the Merger or any of the other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (y) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Offer, the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Offer, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any Governmental Entity or them contained in members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement that is qualified as to Seller Material Adverse EffectAgreement, the Offer, the Merger and the other Transactions, including promptly furnishing the other with copies of notices or other communications received or provided by Parent Material Adverse Effect or Buyer Material Adverse Effectthe Company, as the case may be, becomes untrue or incorrect in any respect or any such representation of their respective affiliates, from or warranty that is not so qualified becomes untrue or incorrect in to any material respect or third party and/or Governmental Entity, and (iiz) of the failure by it or them to comply with any inquiry or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect request from the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage")FTC, the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership DOJ or any other Seller Subsidiary or Lessee Governmental Entity as promptly as reasonably practicable. Any such additional information shall be in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection substantial compliance with obtaining consent the requirements of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000HSR Act, the aggregate cash consideration payable to applicable Foreign Merger Control Law, the holders of Seller Common Shares in Exon-Xxxxxx Amendment or the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unitapplicable FOCI Requirements, as the case may be. Notwithstanding the foregoing, Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.03(b) as “Antitrust Counsel Only Material, “ which such material and the information contained therein shall be reduced accordingly. If given only to the Franchise Fees exceed $25,000,000outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, at officers or directors of the option recipient unless express permission is obtained in advance from the source of Seller, Seller may the materials (Parent or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unitCompany, as the case may be, shall be reduced accordingly. The Special Committee () or its representatives) shall legal counsel. Notwithstanding anything to the contrary contained in this Section 6.03, materials provided pursuant to this Section 6.03 may be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each redacted to remove references concerning the valuation of the Seller Franchise Agreements Company and be given the opportunity Merger or other confidential information, as necessary to attend comply with contractual arrangements and participate as necessary to address reasonable privilege concerns, and to remove personal and confidential information provided in all such meetingsconnection with CFIUS and/or FOCI Requirement review. (ec) For purposes Without limiting the generality of the last two sentences of Section 5.3(dparties’ obligations under Sections 6.03(a) and 6.03(b), no Franchise Fees that are paid Parent shall, solely to the extent necessary to permit satisfaction of the conditions set forth in Section 7.01(a) (to the extent any such Judgment is in respect of, or payable by Parentany such Law is, Buyer the HSR Act, the Xxxxxxx Act, the FTC Act or Lessee shall be included any Foreign Merger Control Law, the Exon-Xxxxxx Amendment or a FOCI Requirement) and clauses (b) and (i) of Exhibit A (to the extent any such Judgment is in determining respect of, or any such Law is, the dollar thresholds in such sentences unless Seller shall have been consulted by ParentHSR Act, Buyer the Xxxxxxx Act, the FTC Act or Lesseeany Foreign Merger Control Law, the Exon-Xxxxxx Amendment or a FOCI Requirement) so as applicable, to permit the Acceptance Time to occur prior to the incurrence Outside Date, propose, negotiate, commit and agree to the sale, divestiture, license, holding separate (including by proxy agreement), or other disposition of or restriction on the products, assets or businesses of the Company or the Company Subsidiaries, or other mitigation in respect of the products, assets or businesses of the Company or the Company Subsidiaries required by, CFIUS in connection with the Exon-Xxxxxx Amendment, by the U.S. Defense Security Service or U.S. Department of Energy or any other Governmental Entity in connection with the FOCI Requirements or by any Governmental Entity in connection with the HSR Act, the Xxxxxxx Act, the FTC Act or any Foreign Merger Control Law; provided, that any such sales, divestitures, licenses, holdings separate, dispositions or restrictions or other mitigation become effective only from and after the Acceptance Time. Notwithstanding anything to the contrary, nothing in this Agreement shall require Parent (or permit the Company, without Parent’s prior written consent) to take or agree or commit to take any such action, or agree to any condition or restriction or other mitigation, involving the Company or Parent or their respective subsidiaries, that would be, or would reasonably be expected to be, individually or in the aggregate, material in relation to the businesses of the Company and the Company Subsidiaries, taken as a whole, regardless of whether any such action, condition, restriction or mitigation is in respect of Parent, the Company or their respective subsidiaries (any such action, condition, restriction or mitigation, a “Burdensome Condition”), it being agreed that any sale, divestiture, license, holding separate or other disposition of, or restriction on, or other mitigation action required by, CFIUS, or the U.S. Defense Security Service or U.S. Department of Energy or any other Governmental Entity in connection with the FOCI Requirements, with respect to all or any portion of the products, assets, contracts or businesses of, or capital stock of the subsidiary or subsidiaries of the Company conducting, the Sapient Government Services unit of the Company shall be deemed not to constitute, collectively, in and of themselves, a Burdensome Condition. Nothing in this Section 6.03 shall require the Company or the Company Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such Franchise Feesagreement or action is conditioned upon the Acceptance Time, or permit the Company or any of the Company Subsidiaries to take or agree to any action or other matter pursuant to this Section 6.03 referred to in this Section 6.03(c) above without Parent’s prior written consent.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) parties agrees to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things actions that are necessary, proper or appropriate and advisable to consummate and make effective the Merger and the other transactions contemplated by this Agreement and the Company Voting Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of including using its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each accomplish the following as promptly as reasonably practicable following the date of this Agreement: (a) the Lender Consents, including taking of all acts necessary to cause the actions conditions precedent set forth in Section 5.3(dArticle VI to be satisfied, (b) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the Seller's Disclosure Schedule. Each party shall update making of all necessary registrations, declarations and filings and the other on its progress at taking of all steps as may be necessary to obtain an approval (including the request of Company Required Consents and the other: (iParent Required Consents) In the event some or all of the Lender Consents are not obtainedwaiver from, or, to the extent any approval or waiver cannot be obtained, to avoid the Original Loan Amounts need to obtain an approval (including the Company Required Consents and the Parent Required Consents) or waiver from, or to avoid an action or proceeding by, any Governmental Entity and (c) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company shall, if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Company Voting Agreement, the Merger or any of the other transactions contemplated hereby or thereby, use its reasonable best efforts to allow the Merger and the other transactions contemplated by this Agreement and the Company Voting Agreement to be consummated as defined in the Financing Commitment), promptly as such Original Loan Amount may be increased pursuant to practicable on the terms contemplated by this Agreement and the Company Voting Agreement and otherwise to minimize the effect of such statute or regulation on this Agreement, the Financing CommitmentCompany Voting Agreement, exceed $454,600,000 less the amountMerger and the other transactions contemplated hereby and thereby. The Company, if anyGuarantor and Parent shall provide such assistance, by which information and cooperation to each other as is reasonably requested in connection with the proceeds under foregoing and, in connection therewith, shall notify the Financing Commitment are reduced as a result other person promptly following the receipt of any defect comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or loss referred to additional information in clause (i)(A) respect of Section 7.1(j) (whether any registration, declaration or not a Lender Property Determination (as defined below) filing with such Governmental Entity and shall have occurred) (a "Financing Overage")supply the other person with copies of all correspondence between such person or any of its representatives, on the one hand, and any Governmental Entity, on the other hand. In addition, the Financing Overage Company, Guarantor and Parent shall be used cooperate to promptly develop a mutually acceptable plan to obtain the Company Required Consents and the Parent Required Consents as a source of funds to prepay expeditiously as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received reasonably practicable and any prepayment penalty with respect theretowithout undue expense. To the extent an Underlying Loan and that either party or any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overageits subsidiaries is required to make any registration, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some declaration or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together filing with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) PUC in connection with obtaining the Ground Lessor Company Required Consents or the Parent Required Consents, such party shall use its reasonable best efforts to (i) provide the "Ground Lessor Amounts")other party an opportunity to review and comment on such registration, declaration or filing reasonably in each case advance of making any such registration, declaration or filing, (ii) give reasonable consideration to all comments proposed by the other party and (iii) if applicable, coordinate the submission of such registration, declaration or filing with the other party. Neither the Company nor any of its subsidiaries shall enter into or agree to any terms or conditions in connection with transactions contemplated hereby and by obtaining the Contribution Agreement. If Company Required Consents without the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders prior written consent of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger Parent (which consent shall not be adjusted pursuant to this Section 5.3(dunreasonably withheld or delayed). If None of Guarantor, Parent, Sub or any of their respective subsidiaries shall enter into or agree to any terms or conditions in connection with obtaining the Franchise Fees exceed $12,500,000 but are less than $25,000,000 Parent Required Consents without the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half prior written consent of the amount by Company (which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share consent shall not be unreasonably withheld or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsdelayed). (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things reasonably necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this AgreementMerger, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, including (i) the identification and obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary Registrations (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any representation Governmental Entity, including the filing under the HSR Act referred to in Section 6.5(b) and any required filings, notices or warranty made by it consents with state banking departments or them contained similar agencies required in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as connection with a change of control of the case may be, becomes untrue or incorrect in any respect Company or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or Subsidiary of the Company holding licenses as a money transmitter (the “Money Transmitter Licenses”), (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) subject to Section 6.12, the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the failure Merger, including, when reasonable, seeking to have any stay or temporary restraining order entered by it any court or them other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to comply with or satisfy in any material respect any covenant, condition or agreement consummate the Merger and to be complied with or satisfied by it under fully carry out the purposes of this Agreement; provided, however, that no such notification the obligations set forth in this sentence shall affect not be deemed to have been breached as a result of actions by the representationsCompany expressly permitted under Section 6.3; provided further, warrantiesthat, covenants or agreements of the parties or the conditions with respect to the obligations to obtain a consent or an approval relating to a change of control of the Money Transmitter Licenses (or any pending registrations for Money Transmitter Licenses) in any jurisdiction, if such consent or approval in such jurisdiction is not obtained prior to June 19, 2013, Parent and the Company agree to use reasonable best efforts to identify possible alternatives reasonably satisfactory to Parent that eliminate the need to obtain such approvals or consents in such jurisdiction, including, without limitation, by (x) entering into arrangements reasonably satisfactory to Parent (or consenting to the entry by Subsidiaries of the Company into arrangements reasonably satisfactory to Parent) with third parties that possess the necessary licenses providing the ability to create agency relationships to enable the Company and its Subsidiaries and the Distributors and reloaders of Cards managed by the Company and its Subsidiaries to provide money transmission services for the Company and its Subsidiaries from and after the Effective Time to permit the continued servicing of business relationships of the Company and its Subsidiaries until receipt of such consents or approvals, (y) to the extent feasible, ceasing operations of the Company and its Subsidiaries, as of the Effective Time, in one or more jurisdictions to the extent the operations in such jurisdiction require the Company or any of its Subsidiaries to have a Money Transmitter License, so long as such cessation of operations is not reasonably expected to result in the loss of 1.9% or more of the aggregate revenues of the Company and its Subsidiaries for the twelve (12) month period ending on the first anniversary of the Closing Date, and/or (z) obtaining written assurances reasonably acceptable to Parent from the applicable state banking department or similar agency that such consent or approval is forthcoming and no adverse action will be taken against the Company or any of its Subsidiaries in connection with the continued conduct of the operations of the Company or any of its Subsidiaries (or the Surviving Corporation or any of its Subsidiaries, as applicable) in the applicable jurisdiction notwithstanding the pendency of any such approval or consent (clauses (x), (y) and (z) collectively, “Alternate Arrangements”). Without limiting the rights of Parent or Sub under Section 7.1 or this Section 6.5, each of the Company and Parent agrees to use reasonable best efforts to implement and cause any Alternate Arrangements reasonably satisfactory to it to become effective as promptly as reasonably practicable after July 19, 2013 in order to permit the Effective Time to occur as promptly as reasonably practicable thereafter (subject to the satisfaction or waiver of the conditions set forth in Article VII). (b) Without limitation of the foregoing, (x) each of Parent and the Company undertakes and agrees to use its reasonable best efforts to cooperate with each other and submit in good faith (based on the Company’s past practices with respect to such filings) as soon as practicable, and in any event within forty five (45) days after the date hereof, all required filings, notices or consents in connection with the Money Transmitter Licenses for the jurisdictions set forth on Schedule 6.5(b) with the applicable state banking departments or similar agencies, and (y) each of Parent and the Company undertakes and agrees to file as soon as practicable, and in any event prior to ten (10) business days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”). Each of Parent and the Company shall (i) respond as promptly as practicable to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust matters, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto. (c) With If any objections are asserted with respect to securing the Lender Consentstransactions contemplated hereby under any Regulatory Law or if any order, Buyer judgment, decree or injunction of any Governmental Entity is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Regulatory Law: (x) each of the parties hereto shall use its reasonable best efforts to: (i) oppose or defend against any such objection, order, judgment, decree or injunction to prevent or enjoin consummation of this Agreement (and Seller the transactions contemplated herein); and/or (ii) take such action as reasonably necessary to overturn any action by any Governmental Entity or private party to block consummation of this Agreement (and the transactions contemplated herein), including by defending any objection, order, judgment, decree or injunction brought by any Governmental Entity or private party in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any decree, judgment, injunction or other order (whether temporary, preliminary or permanent) that would restrain, prevent or delay the Closing or the other transactions contemplated herein, or, subject to Section 6.5(d), in order to resolve any such objections, proposing, negotiating, committing to and effecting, by consent decree, hold separate order, trust or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or its subsidiaries or of the Company or its Subsidiaries; provided, that each of the parties hereto shall cooperate with each other one another in connection with all proceedings related to the foregoing and use all reasonable best efforts Parent shall have final decision-making authority with respect thereto; and (y) Parent agrees to secure each of the Lender Consents, including taking take the actions set forth in on Section 5.3(d6.5(c) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable Schedules in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on terms set forth therein. Notwithstanding the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000foregoing, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger Company and Seller Partnership Units in the Partnership Merger its Subsidiaries shall not be adjusted pursuant obligated to this Section 5.3(d). If amend or waive the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders provisions of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000any Contract, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay any consent or Seller may consent to Lessee paying similar fees or committing to pay such excesspayments, and or divest any assets or enter into commitments regarding the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.conduct of

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, Sub and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) Company shall use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties to this Agreement in doing, all other things necessary, proper or appropriate and advisable to consummate and make effective effective, as promptly as practicable, the transactions Offer, the Merger and the other Transactions, including (i) obtaining all necessary actions or non-actions, waivers and Consents from, making all necessary registrations, declarations and filings with, and taking of all reasonable steps as may be necessary to avoid a Proceeding by, any Governmental Entity with respect to this Agreement and the Transactions; (ii) defending and contesting all Proceedings, whether judicial or administrative, challenging the enforceability of this Agreement or the consummation of any of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) executing and delivering all additional instruments necessary to consummate the Transactions and to fully effectuate the intent and purposes of this Agreement. In connection with and without limiting the generality of the foregoing, each of Parent, Merger Sub, the Company and the Company Board shall (A) take all action necessary to ensure that no Takeover Law is or becomes applicable to any Transaction or this Agreement and (B) if any Takeover Law becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable upon the terms contemplated by this Agreement and otherwise to minimize the effect of such Takeover Law on the Transactions and this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except. (b) Seller shall give prompt notice to [Reserved]. (c) Without limiting the generality of the parties’ obligations under Section 6.3(a), and in furtherance thereof, Parent and Buyerthe Company shall, in consultation and Parent cooperation with the other and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, promptly as practicable after the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) date of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, make all necessary filings and obtain all necessary consents, certifications or waivers with respect to the transfer and continuation of all permits, licenses and other regulatory matters required by state public utility commissions or applicable state Governmental Entities; provided, however, that no the failure to make any such notification filing or obtain any such consent or waiver shall affect the representations, warranties, covenants or agreements constitute neither a Company Material Adverse Effect nor a Legal Restraint for purposes of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties hereto shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions most expeditious manner practicable, the Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers, consents and approvals from Governmental Entities and the making of all necessary or advisable registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary or advisable consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Document or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of the Transaction Documents. In connection with and without limiting the foregoing, Domtar shall (i) take all action necessary to ensure that the take-over provisions of the Canadian Securities Legislation and the state takeover statutes or similar statutes or regulations are not and do not become applicable to any Transaction or this Agreement or any other Transaction Document and (ii) if the Canadian Securities Legislation or any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement or any other Transaction Document, take all action necessary to ensure that the Arrangement and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement, subject in the case Transaction Documents. Each of Seller to the exercise by parties hereto shall keep the Seller Board or Special Committee prior to the Outside Date other parties reasonably informed of its duties under applicable law; provided however, that nothing progress in this Section 5.3 shall require Parent obtaining any necessary or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptadvisable Consents and Governmental Approvals. (b) Seller Domtar shall give prompt notice to Parent Weyerhaeuser and BuyerNewco, and Parent Weyerhaeuser and Buyer Newco shall give prompt notice to Seller, Domtar of (i) if any representation or warranty made by it or them contained in this Agreement any Transaction Document that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreementany Transaction Document; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementthe Transaction Documents. (c) With respect to securing the Lender Consents, Buyer and Seller Nothing in Section 6.07(a) shall cooperate with each other and use all reasonable best efforts to secure each require any of the Lender Consents, including taking the actions set forth in Section 5.3(d) parties or any of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: their respective subsidiaries to (i) In the event some pay any consideration to any third party from whom any consents, approvals, or all waivers are requested, other than filing fees paid to Governmental Entities, or (ii) dispose of any of its assets or to limit its freedom of action with respect to any of its businesses, or to consent to any disposition of any assets or limits on its freedom of action with respect to any of its businesses, or to commit or agree to any of the Lender Consents are not obtainedforegoing in order to obtain any consents, approvals, permits or authorizations or to remove any impediments to the extent Transactions relating to the Original Loan Amounts Competition Act, the HSR Act, the Investment Canada Act or other antitrust, competition or pre-merger notification, trade regulation law, regulation or order (as defined “Review Laws”) or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding relating to Review Laws, other than dispositions, limitations, consents or commitments that individually or in the Financing Commitment)aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Newco Business and Domtar Business, taken as such Original Loan Amount a whole. (d) Each of Domtar, Weyerhaeuser and the Spinco Parties shall (i) file or cause to be filed as promptly as practicable with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) all notification and report forms that may be increased required for the Transactions and any supplemental information requested in connection therewith pursuant to the terms of the Financing CommitmentHSR Act, exceed $454,600,000 less the amount, if any, by which the proceeds and (ii) make such other filings as promptly as practicable as are necessary under the Financing Commitment are reduced as a result of Review Laws and shall promptly provide any defect supplemental information requested by applicable Governmental Entities relating thereto. No party shall include in any such filing, notification or loss report form referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained immediately preceding sentence a request for early termination or deemed waived, Seller may, at its sole option, agree to have acceleration of any applicable waiting periods without the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any prior written consent of the Lender Consents. (d) Sellerother parties. Any such filing, Buyer notification and Parent report form and supplemental information shall use all be in substantial compliance with the requirements of the HSR Act and other Review Laws. Each of Domtar, Weyerhaeuser and the Spinco Parties shall furnish to the other such necessary information and reasonable best efforts to minimize (i) assistance as the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) may reasonably request in connection with obtaining consent their preparation of any filing or submission that is necessary under the HSR Act and other Review Laws. Each of Domtar, Weyerhaeuser and the Spinco Parties shall keep each other apprised of the franchisors (including status of any communications with, and any inquiries or requests for additional information from, the Franchise Consents) under each of FTC, the Seller Franchise Agreements with respect to any Seller Property (collectively DOJ and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary applicable Governmental Entity and shall comply with any such inquiry or request as promptly as practicable. Domtar, Weyerhaeuser and the Spinco Parties shall not have any substantive contact with any Governmental Entity in cash respect of any filing or proceeding contemplated by this Section unless it consults with the other consideration (including by making commitments or incurring any liability or obligation) parties in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts")advance and, in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in extent permitted by such Governmental Entity, gives the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share other party or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given parties the opportunity to attend and participate in all such meetingsparticipate. (e) For purposes Without limiting the generality of the last two sentences first sentence of Section 5.3(d6.07(a), no Franchise Fees that are paid or payable each of Weyerhaeuser and Domtar shall use its reasonable best efforts to cooperate with Spinco and Newco in connection with the financing contemplated by Parentthe New Debt Commitment Letter, Buyer or Lessee shall including using (and causing its subsidiaries to use) reasonable best efforts to satisfy all conditions precedent to be included satisfied by the Spinco Parties in determining the dollar thresholds in such sentences unless Seller shall have been consulted by ParentNew Debt Commitment Letter, Buyer or Lessee, as applicable, prior providing information to and permitting the financing sources and their representatives access to the incurrence Newco Business and the Domtar Business, respectively, participating in meetings with prospective investors and participating (and permitting members of such Franchise Feesits senior management to participate) in bank meetings in connection with the financing, participating in meetings with rating agencies, participating in drafting sessions related to the offering materials for the debt financing contemplated by the New Debt Commitment Letter, causing the present and former independent accountants for Weyerhaeuser and Domtar, respectively, to participate in drafting sessions related to the offering materials for the debt financing contemplated by the New Debt Commitment Letter and making work papers available to the respective parties, the financing sources and their respective representatives.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger, including (i) the obtaining of all Consents and the making of all Registrations specified in Sections 3.3(c) and 4.3(b) and the taking of all reasonable steps as may be necessary to obtain such Consents and to make such Registrations, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger, including, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the obligations set forth in this sentence shall not be deemed to have been breached as a result of actions by the Company expressly permitted under Section 6.3. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to prepay or redeem debt (or notes), amend or waive the provisions of any Contract, or to pay any consent or similar fees or payments unless such action is conditioned upon the consummation of the Merger. Without limiting the foregoing, Parent and its Subsidiaries shall not take or agree to take any action with respect to any acquisition of businesses or assets which would reasonably be expected to delay or prevent consummation of the Merger. (b) Each of Parent and the Company undertakes and agrees to file as soon as practicable, and in any event prior to seven days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the "FTC") and the Antitrust Division of the United States Department of Justice (the "Antitrust Division"). Each of Parent and the Company shall (i) respond as promptly as practicable to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust matters, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto. Parent shall commit to take all steps which it is capable of taking to avoid or eliminate impediments under any antitrust, competition, or trade regulation law that may be asserted by the FTC, the Antitrust Division, any State Attorney General or any other Governmental Entity with respect to the Merger so as to enable the consummation thereof as promptly as reasonably practicable and shall defend through litigation on the merits any claim asserted in any court by any party, including appeals. Without limiting the foregoing, Parent shall propose, negotiate, commit to and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or, effective as of the Effective Time, the Surviving Corporation, or their respective Subsidiaries or otherwise commit to take any action which it is capable of taking, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of Parent, the Surviving Corporation or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the consummation of the Merger. At the request of Parent, the Company shall agree to divest, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services, or assets of the Company or any of its Subsidiaries, provided that any such action shall be conditioned upon the consummation of the Merger and the transactions contemplated hereby. Each party shall (i) promptly notify the other party of any written communication to that party from the FTC, the Antitrust Division, any State Attorney General or any other Governmental Entity and, subject to applicable law, permit the other party to review in advance any proposed written communication to any of the foregoing; (ii) not agree to participate in any substantive meeting or discussion with any governmental authority in respect of any filings, investigation or inquiry concerning this Agreement or the Merger unless it consults with the other party in advance and, to the extent permitted by such governmental authority, gives the other party the opportunity to attend and participate thereat; and (iii) furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between them and their Affiliates and their respective representatives on the one hand, and any government or regulatory authority or members or their respective staffs on the other hand, with respect to this Agreement and the Merger. (c) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or appropriate advisable that are within Parent's and Sub's control to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made maintain in effect the Financing Commitments and to satisfy on a timely basis all the conditions to obtaining the Financing set forth therein (including by it or them contained in this Agreement that is qualified as consummating the equity financing pursuant to Seller Material Adverse Effectthe terms and conditions of the Equity Commitment Letter), Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of enter into definitive financing agreements with respect to the failure Debt Financing as contemplated by it the Debt Commitment Letter (the "Financing Agreements"), so that the Financing Agreements are in effect at or them prior to comply with closing and (iii) consummate the Financing at or satisfy in prior to Closing. Parent and Sub shall not permit any material respect any covenant, condition amendment or agreement modification to be complied made to, or any waiver of any material provision or remedy under, the Financing Commitments without first consulting with the Company, and will obtain the Company's prior written consent (which consent shall not be unreasonably withheld or satisfied by it under this Agreement; provideddelayed) prior to agreeing to any such amendment, however, modification or waiver that no such notification shall affect would materially increase the representations, warranties, covenants or agreements of the parties or likelihood that the conditions to funding would not be satisfied. Parent and Sub will give the obligations Company prompt notice of any material breaches by any party of the parties under this Agreement. Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed of the status of the financing process relating thereto and shall provide from time to time, such information as the Company may reasonably request in respect thereof. The Company shall provide all reasonable cooperation as may be reasonably requested by Parent in connection with the Debt Financing or any substitute or replacement debt financing, including (ci) With respect to securing the Lender Consentsupon reasonable advance notice by Parent, Buyer participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, "road shows" and Seller shall cooperate sessions with each other and use all rating agencies, (ii) using reasonable best efforts to secure furnish to Parent business projections, audited financial statements, unaudited financial statements (which shall have been reviewed by Accountants as provided in SAS No. 100 (subject to exceptions customary for a Rule 144A offering), pro forma statements and other financial data and pertinent information about the Company and its Subsidiaries, in each case of the Lender Consentstype and form customarily included in offering memoranda, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtainedprivate placement memoranda, prospectuses and similar documents, including, to the extent the Original Loan Amounts (as defined in the Financing Commitment)available, as such Original Loan Amount may be increased pursuant unaudited financial information relating to sales, EBITDA and comparable store sales and, to the terms extent such information would be available at the time requested, unaudited consolidated balance sheets and related statements of income and cash flows of the Financing CommitmentCompany and its Subsidiaries for the 52 weeks and 13 weeks ended December 30, exceed $454,600,000 less 2006 (collectively, the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing OverageRequired Financial Information"), the Financing Overage which Required Financial Information shall be used as a source Compliant, (iii) reasonably facilitating the pledging of funds collateral, effective at the Effective Time, (iv) the execution and delivery of loan agreements and related documents, effective at the Effective Time, (v) using reasonable best efforts to prepay as obtain the written consent of the Closing Date, in whole or in part, independent accountants for the outstanding amounts under all Company ("Accountants") to permit the use of the loans Company's audited financial statements and the Accountant's audit report thereon and the Accountant's report on the Company's internal control over financial reporting in connection with the Financing, including any registration statement filed in connection therewith, and using reasonable best efforts to cause the Accountants to provide a customary comfort letter (including customary "negative assurances") in accordance with SAS 72 (subject to any requirements set forth in SAS 72) for which a Lender Consent is required (any such loanoffering, an "Underlying Loan"which comfort letter shall be reasonably satisfactory to Parent's lenders, (vi) which have not been received and executing any prepayment penalty reasonably necessary management representation letters to the Accountants to issue reports with respect to the financial statements to be included in any offering documents and in any updated filings or amendments thereto. To , (vii) using reasonable best efforts to cause the extent an Underlying Loan and any related prepayment penalty will be paid as of current outside legal counsel for the Company to deliver a legal opinion at the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan matters concerning the Company and its subsidiaries as are customary for such transactions, which legal opinion shall be deemed reasonably satisfactory to have been obtained; Parent's lenders and (iiviii) In allowing Parent and its lender's representatives such access as may be reasonably necessary for their due diligence, including without limitation by letting such lender's representatives inspect the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able Company's records and premises and to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date consult with the proceeds of any such financingCompany's officers, together employees, attorneys, and agents with any Financing Overage, the -40- 49 Lender Consent financial and operating data and other information with respect to the Company such Underlying Loan lenders reasonably request; provided that, the Company shall not be deemed required to have been obtainedprovide any such assistance which would interfere unreasonably with the ongoing business or operations of the Company and its Subsidiaries and provided, further that, without the Company's consent, which shall not unreasonably be withheld, in no event shall any property level due diligence involve environmental tests or assessments more intrusive to such properties than those tests and assessments necessary to prepare Phase I reports. With respect Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable out of pocket third party costs incurred by the Company or any of its Subsidiaries in connection with such cooperation. Parent and Sub shall, on a joint and several basis, indemnify and hold harmless, the Company, its Subsidiaries, and their directors, officers, employees and representatives for and against any losses, damages and claims which any of them may suffer resulting from or arising out of the arrangement of the Debt Financing and any information used in connection therewith (other than information provided by the Company or its Subsidiaries) and this sentence is intended to Underlying Loans that are not prepayable in accordance with be for the benefit of, and will be enforceable by, each such director, officer, employee and representative and their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) heirs. In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive connection with any of the Lender Consents. (d) Sellerforegoing, Buyer and Parent shall use all reasonable best efforts to minimize (i) none of the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership Company or any other Seller Subsidiary or Lessee in cash of its Subsidiaries shall be required to pay any commitment or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregatesimilar fee, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.reimburse

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither SellerU.S. Parent, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, Sub and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required Company agrees to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Transaction Documents, including (i) obtaining all necessary, proper or advisable actions or non-actions, waivers, consents, qualifications and approvals from Governmental Entities and making all necessary, proper or advisable registrations, filings and notifications and taking all reasonable steps as may be necessary to obtain an approval, clearance, non-action letter, waiver or exemption from any Governmental Entity (including under the HSR Act and Exon-Xxxxxx); (ii) obtaining all necessary, proper or advisable consents, qualifications, approvals, waivers or exemptions from non-governmental Third Parties; and (iii) executing and delivering any additional documents or instruments necessary, proper or advisable to consummate the transactions contemplated by, and to fully carry out the purposes of, the Transaction Documents. (b) Without limiting the foregoing, (i) each of the Company, Parent, U.S. Parent and Merger Sub shall use its reasonable best efforts to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable and any other required submissions under the HSR Act that the Company or Parent determines should be made, in each case with respect to the Merger and the transactions contemplated hereby, and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable; (ii) each of the Company, Parent, U.S. Parent and Merger Sub shall use its reasonable best efforts to (A) submit to the Committee on Foreign Investment in the United States (“CFIUS”) (x) a draft voluntary joint Exon-Xxxxxx notification as soon as practicable, but in any event no later than 10 Business Days following the date hereof and (y) a final Exon-Xxxxxx notification within 15 Business Days after submission of the draft notification pursuant to clause (x), (B) as soon as practicable, prepare and submit to the Defense Security Service of the United States Department of Defense (“DSS”) and, to the extent applicable, any other agency of the U.S. Government, notification of the transactions contemplated hereby pursuant to the National Industrial Security Program Operating Manual (“NISPOM”) and any other applicable national or industrial security regulations, and fully cooperate with U.S. Parent in requesting from DSS approval to operate the business of the Company and (C) make any other submissions under Exon-Xxxxxx that are requested by CFIUS to be made or which the Company and Parent mutually agree should be made as soon as practicable following the date hereof, in each case, in connection with this Agreement and the transactions contemplated hereby; and (iii) Parent, U.S. Parent, Merger Sub and the Company shall cooperate with one another (A) in promptly determining whether any other filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any other federal, state or foreign Law or regulation or whether any consents, approvals or waivers are required to be or should be obtained from other parties to loan agreements or other contracts or instruments material to the Company’s business in connection with the consummation of the transactions contemplated by this Agreement and (B) in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain timely any such consents, permits, authorizations, approvals or waivers. If, at the end of the initial 30 day review under Exon-Xxxxxx, CFIUS offers the parties an opportunity to withdraw and resubmit their final Exon-Xxxxxx notification in order to avoid an investigation, and either the Company or Parent opts to request withdrawal and resubmission in response to such offer by CFIUS, then the other party shall agree to join the request for withdrawal and resubmission at the end of the initial 30 day review and immediately resubmit their final Exon-Xxxxxx notification. (c) The Company, Parent, U.S. Parent, and Merger Sub shall cooperate with each other in connection with the making of all such filings, including furnishing to the others such necessary information and reasonable assistance as a party may request in connection with its preparation of any filing or submission that is necessary or allowable under applicable competition or other Law or requested by any competition authorities. The Company, Parent, U.S. Parent, and Merger Sub shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Law (including all information required to be included in the Company Disclosure Documents) in connection with the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 . Each party hereto shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if give the other parties hereto prompt notice upon obtaining Knowledge of the making or commencement of any representation request, inquiry, investigation, action or warranty legal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (ii) keep the other parties hereto informed as to the status of any such request, inquiry, investigation, action or legal proceeding, and (iii) promptly inform the other parties hereto of any material communication to or from the U.S. Federal Trade Commission, the U.S. Department of Justice, any foreign competition authority or any other Governmental Entity regarding the Merger or any of the other transactions contemplated by this Agreement. The parties hereto will consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto, including reasonable access to any materials submitted pursuant to any Second Request or in connection with any other proceedings under or relating to any Antitrust Law. Any party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this section as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or them contained directors of the recipient, unless express written permission is obtained in advance from the source of the materials. In addition, except as may be prohibited by any Governmental Entity or by any Law, each party hereto will permit authorized Representatives of the other parties to be present at each meeting or telephone conference with representatives of any Governmental Entity relating to any such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with any such request, inquiry, investigation, action or proceeding. (d) Without limiting any other obligations of Parent hereunder, Parent and U.S. Parent shall agree to the acceptance of any restrictions or conditions imposed by any Governmental Entity on (i) the conduct or structure of any business or operations of the Company or any of its Subsidiaries, (ii) access by Parent to technology, operations, products or other activities of the Company or any of its Subsidiaries or (iii) such other restrictions or conditions imposed on the operations of the Company or any of its Subsidiaries or limitations on Parent’s control of the Company or any of its Subsidiaries, in each case as a result or consequence of the CFIUS review or review under Antitrust Laws. Notwithstanding any other provision in this Agreement that is qualified as to Seller the contrary, (A) none of Parent, U.S. Parent or the Company shall be required to agree to any restrictions or conditions which would have (x) a Company Material Adverse Effect, or (y) an Effect that is materially adverse to the business of Parent and its Subsidiaries, taken as a whole, or the business of U.S. Parent and its Subsidiaries, taken as a whole, and (B) neither Parent nor U.S. Parent, nor any of their respective Affiliates, shall be required to litigate, pursue or defend any filed lawsuit or formal administrative proceeding by any Governmental Entity challenging the transactions contemplated by this Agreement as violative of any Antitrust Laws. As used in this Section 5.3, the term “Company Material Adverse Effect” shall be defined without regard to (x) the exceptions in clause (D) of the first proviso to the definition of such term in Section 8.3 and (y) the exception in clause (i) of the second proviso to the definition of such term in Section 8.3, and, for the avoidance of doubt, the matters described in such exceptions shall be taken into account in determining whether there has been a Company Material Adverse Effect for purposes of this Section 5.3(d). (e) To the extent reasonably requested by U.S. Parent, the Company shall use its best efforts to work together with U.S. Parent to obtain assurances that, in accordance with the NISPOM, the Surviving Corporation will be granted National Interest Determinations required for authorizing continued access to proscribed or Buyer Material Adverse Effectother classified or unclassified controlled information following the Effective Time to the extent necessary for the Surviving Corporation to continue to perform certain of the Company’s Government Contracts; provided, however, that the Company shall not be required to use or otherwise engage direct charge personnel in the furtherance hereof. For the avoidance of doubt, Parent, U.S. Parent and Merger Sub shall continue to be obligated to consummate the Merger on the terms contemplated by this Agreement and subject only to the satisfaction or waiver of the conditions set forth in ARTICLE VI, regardless of whether (x) Parent, U.S. Parent or Merger Sub receives DSS approval to operate under U.S. Parent’s SSA under the NISPOM or such other arrangement requested by DSS or (y) indications are received from any customer with respect to any Government Contract that such customer will not grant or support a favorable National Interest Determination to or for the benefit of the Company after the Merger in response to the request for such National Interest Determination (or similar determinations under any applicable national or industrial security regulations) in accordance with the NISPOM. (f) Each of the Company, on the one hand, and Parent, U.S. Parent and Merger Sub, on the other, shall, to the extent permitted by Applicable Law and subject to all privileges (including the attorney client privilege), promptly (and in any event within two Business Days) notify the other party in writing of: (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; (ii) any notice or other communication from any Governmental Entity in connection with the transactions contemplated by this Agreement; (iii) any actions, suits, claims, investigations or proceedings commenced or, to its Knowledge, threatened against, relating to or involving or otherwise affecting the Company or any of its Subsidiaries or Parent and any of its Subsidiaries, as the case may be, becomes untrue that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to any of the representations and warranties contained herein, or incorrect in that relate to the consummation of the transactions contemplated by this Agreement; (iv) any respect or inaccuracy of any such representation or warranty contained in this Agreement at any time during the term hereof that is would reasonably be expected to cause the conditions set forth in ARTICLE VI hereto not so qualified becomes untrue or incorrect in to be satisfied; and (v) any material respect or (ii) failure of the failure by it or them that party to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementhereunder. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (iig) In the event that the Company earnings announcement for either the third quarter or fourth quarter of 2008 would be lower than the Company’s then published earnings guidance, the Company shall provide notice of such event to Parent at any time after July 15, 1999, Seller reasonably believes that (A) some or all least two Business Days prior to the scheduled announcement of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds earnings for the prepayment in full Company’s third quarter or fourth quarter of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties)2008, Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereofas applicable. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted Any notice provided pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives5.3(g) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors deemed “Evaluation Material” under each the terms of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsConfidentiality Agreement. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (iSection 5.03(c) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as practicable, the transactions Merger and the other Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers and consents from, the making of all necessary registrations, declarations and filings with and the taking of all reasonable steps as may be necessary to avoid a Proceeding by any Governmental Entity with respect to this Agreement or the Transactions, (ii) the defending or contesting of any Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, and notwithstanding any Adverse Recommendation Change, the Company and the Company Board shall (A) take all action necessary to ensure that no Takeover Statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if any Takeover Statute or similar statute or regulation becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Transactions and this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except. (b) Seller shall give prompt notice to Parent and Buyerthe Company shall, in consultation and Parent and Buyer shall give prompt notice to Sellercooperation with the other, file (i) with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required under the HSR Act for the Merger or any representation of the other Transactions as promptly as practicable (but in no event later than ten business days after the date of this Agreement) and (ii) all appropriate filings, notices, applications or warranty made by it similar documents required under any Foreign Antitrust Law as promptly as practicable (but in no event later than ten business days after the date of this Agreement). Any such filings shall be in substantial compliance with the requirements of the HSR Act or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effectthe applicable Foreign Antitrust Laws, as the case may be, becomes untrue . Each of Parent and the Company shall (i) furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or incorrect in any respect submission which is necessary under the HSR Act or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or Foreign Antitrust Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other Governmental Entity regarding the Merger or any of the failure other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any Governmental Entity or them members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Merger and the other Transactions and (iv) comply with any inquiry or satisfy request from the FTC, the DOJ or any other Governmental Entity as promptly as reasonably practicable. Any such additional information shall be in substantial compliance with the requirements of the HSR Act or the applicable Foreign Antitrust Law, as the case may be. Parent agrees not to extend, directly or indirectly, any material respect waiting period under the HSR Act or any covenantForeign Antitrust Law or enter into any agreement with a Governmental Entity to delay or not to consummate the Merger or any of the other Transactions, condition except with the prior written consent of the Company, which consent may be withheld in its sole discretion. Notwithstanding anything to the contrary herein, Parent and the Company shall have joint control over all communications and strategy relating to obtaining all approvals, Consents, waivers, registrations, permits, Authorizations and other confirmations under the HSR Act and any Foreign Antitrust Law from any Governmental Entity or agreement other third party in connection with consummating the Merger and the other transactions contemplated by this Agreement or to be complied with any litigation arising therefrom under the HSR Act or satisfied by it under this Agreementany Foreign Antitrust Law; provided, however, that no Parent and the Company shall consult in advance with the other party and in good faith take the other party’s views into account regarding the overall strategic direction of any such notification shall affect approval process, as applicable, and consult with the representationsother party prior to taking any material substantive positions, warrantiesmaking dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such approvals, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementas applicable. (c) With respect Notwithstanding anything to securing the Lender contrary in this Agreement, each of Parent, Merger Sub and the Company agrees to take promptly any and all steps necessary to avoid, eliminate or resolve each and every impediment and obtain all clearances, Consents, Buyer approvals and Seller waivers under the HSR Act or any Foreign Antitrust Law that may be required by any Governmental Entity, so as to enable the parties to close the Transactions as promptly as practicable (and in any event no later than the Outside Date), including committing to and effecting, by consent decree, hold separate orders, trust, or otherwise, (i) the sale, license, holding separate or other disposition of assets or businesses of Parent or the Company or any of their respective subsidiaries, (ii) terminating, relinquishing, modifying, or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Parent or Company or their respective subsidiaries and (iii) creating any relationships, ventures, contractual rights, obligations or other arrangements of Parent or Company or their respective subsidiaries (each a “Remedial Action”); provided that (x) the Company shall not be obligated to agree to, commit or effect, any Remedial Action unless such Remedial Action is conditioned upon, or will occur subsequent to, consummation of the Transactions and (y) Parent and its subsidiaries shall not be required to, and the Company and the Company Subsidiaries shall not, without the prior written consent of Parent, take any Remedial Action, or commit to take any Remedial Action, or agree to any Remedial Action, that would, or would reasonably be expected to, have a material adverse effect on the business, results of operations, or financial condition of either (x) SA and its subsidiaries (but not including the Company and the Company Subsidiaries) or (y) the Company and the Company Subsidiaries, (in each case of (x) and (y), measured on a scale relative to the Company and the Company Subsidiaries, taken as a whole) (a “Burdensome Condition”). In the event that any litigation or other administrative or judicial action or Proceeding is commenced, threatened or is foreseeable challenging any of the Transactions and such litigation, action or Proceeding seeks, or would reasonably be expected to seek, to prevent, materially impede or materially delay the consummation of the Transactions, Parent shall use its reasonable best efforts to take any and all action, including a Remedial Action, to avoid or resolve any such litigation, action or Proceeding and each of the Company, Parent and Merger Sub shall cooperate with each other and use all its respective reasonable best efforts to secure each contest and resist any such litigation, action or Proceeding and to have vacated, lifted, reversed or overturned any decree, Judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: Transactions as promptly as practicable (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in any event no later than the aggregateOutside Date); provided, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger that Parent shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000required to, and the Merger Consideration and Partnership Merger Consideration per share Company shall not, without the prior written consent of Parent, take any action under this sentence that would, or unitwould reasonably be expected to, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares result in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum imposition of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsa Burdensome Condition. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject Each of the parties to the terms and Merger Agreement have agreed, subject to the satisfaction or waiver of the conditions herein providedto the Merger, Seller, Parent and Buyer shall: (i) to use all their respective reasonable best efforts to cooperate with one another in take all actions necessary, proper or advisable to consummate the Offer, the Merger and the other Transactions, including (Ai) determining which filings are required to be made prior to the Effective Time withobtaining all necessary consents and approvals from Governmental Entities, and which making all necessary registrations and filings with any Governmental Entity, including under the HSR Act, (ii) obtaining all necessary consents, approvalsapprovals or waivers from third parties, permits (iii) defending any lawsuit or authorizations are required to be obtained prior to other legal proceeding challenging the Effective Time from, governmental Merger Agreement or regulatory authorities any other Transaction Agreement or the consummation of the United StatesTransactions, the several states and foreign jurisdictions and any third parties in connection with (iv) the execution and delivery of this Agreementany additional instruments necessary to consummate the Transactions. In addition, the Company and the Company Board have agreed to take all commercially reasonable action necessary to ensure that no state takeover statute or regulation is or becomes applicable, and if any state takeover statute or regulation should become applicable, take all commercially reasonable action necessary to ensure that the Offer, the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by the Transaction Agreements. Without Parent's prior written consent, the Company shall not (and will not allow any Company Subsidiary to), commit to any divestitures, licenses, hold separate arrangements or similar matters affecting business operating practices. If such divestitures, licenses, hold separate arrangements or similar matters are contingent on consummation of the transactions contemplated herebyOffer, including without limitation any required filings and consents under the HSR ActCompany shall commit to, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all its reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter effect (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), shall cause its Subsidiaries to commit to and the parties shall use all their reasonable best efforts to cause Lessee effect), any such divestitures, licenses, hold separate arrangements or similar matters. However, neither Parent nor any of its Subsidiaries shall be required to obtain, in writingagree (with respect to Parent, the consents listed in Section 5.3(a)(2Company or any of their respective Subsidiaries) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (to any divestitures, licenses, hold separate arrangements or similar matters, including covenants affecting business operating practices, if such Lender Consents, Ground Lessor Consents and Franchise Consents referred actions would reasonably be expected to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, have a Parent Material Adverse Effect or Buyer a Company Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to In connection with this Agreement and the terms and conditions herein providedtransactions contemplated hereby, Seller, Parent and Buyer shall: the parties hereto shall (i) use all their reasonable best efforts to obtain as promptly as practicable any necessary consents, approvals, waivers and authorizations of, actions or nonactions by, and make, as promptly as reasonably practicable, all necessary filings and submissions with, any Governmental Entity or third party necessary to consummate and make effective the Transactions as promptly as practicable, (ii) cooperate with one another each other in (A) determining which filings are required to be made prior to the Effective Time with, and which material consents, approvals, permits permits, notices or authorizations are required to be obtained prior to the Effective Time from, governmental Governmental Entities or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, Agreement and the other agreements, documents and instruments being delivered pursuant to or specifically contemplated by this Agreement and consummation of the transactions contemplated hereby, including without limitation any required filings hereby and consents under the HSR Act, thereby and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations permits, notices or authorizations, (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (iiiii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee the conditions to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner Closing set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred Article VI to herein collectively be satisfied as the "Required Consents") in form promptly as reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excesspracticable, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iiiiv) use all reasonable best efforts to take, or cause to be taken, all other action actions and do, or cause to be done, and cooperate with each other in order to do, all other things necessary, proper reasonably necessary or appropriate to cause the Closing to occur and to consummate the transactions contemplated hereby as soon as practicable; provided, that, for the avoidance of doubt, none of the parties hereto shall be obligated or required by this Section 5.03 to waive a condition to Closing set forth in Article VI. Notwithstanding anything in this Section 5.03 to the contrary, other than, in the case of the following clause (y), the last sentence of this Section 5.03, nothing in this Agreement shall require, or be deemed to require, (x) Parent to, or cause any of its Affiliates or subsidiaries to, whether prior to, at, after, or conditioned upon, the Effective Time, (A) propose, negotiate, commit to, effect and agree to, by consent decree, hold separate order or otherwise, the sale, divestiture, license, holding separate, or other disposition of or restriction on the businesses, assets, properties, product lines, or equity interests of, or changes to the conduct of business of, Parent or any of its Affiliates or subsidiaries, (B) create, terminate, or divest relationships, ventures, contractual rights or obligations of Parent or any of its Affiliates or subsidiaries or (C) otherwise take or commit to take any action, including institute any Proceeding, that would limit in any way Parent’s or any of its Affiliates’ or subsidiaries’ freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of the Parent or any of its Affiliates or subsidiaries or (y) the Company to sell, or agree to sell, hold or agree to hold separate, or otherwise dispose or agree to dispose of its or any Company Subsidiary’s assets, or conduct or agree to conduct the businesses of the Company and the Company Subsidiaries in any particular manner, or take any other actions that has, or would be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect. Without limiting the foregoing, in no event shall the Company (and the Company shall cause the Company Subsidiaries not to) propose, negotiate, effect or agree to any such actions set forth in the foregoing clause (y) without the prior written consent of Parent. Notwithstanding anything to the contrary herein, the Company shall, and shall cause the Company Subsidiaries to, at the direction of Parent, sell, or agree to sell, hold or agree to hold separate, or otherwise dispose or agree to dispose of the Company’s or the Company Subsidiaries’ assets, or conduct or agree to conduct the businesses of the Company and the Company Subsidiaries in any particular manner, or take any other actions as determined by Parent; provided, that any such actions are conditioned upon and only become effective upon the Effective Time. (b) Without limiting the generality of Section 5.03(a), Parent, Merger Sub, the Company and the Company Subsidiaries shall, and shall cause their respective Subsidiaries to (i) as soon as practicable and in no event later than ten (10) days after the date of this Agreement, each prepare and file any pre-merger notification required under the HSR Act to be filed with the Federal Trade Commission and the U.S. Department of Justice and (ii) promptly provide any supplemental information requested or required by the Federal Trade Commission and the U.S. Department of Justice in connection with such notification in substantial compliance with the HSR Act and other applicable Laws. The parties shall jointly develop, and each of the parties shall consult and cooperate in all respects with one another, and consider in good faith the views of one another, in connection with the form and content of any analyses appearances, presentations, memoranda, briefs, arguments, opinions, and proposals made or submitted by or on behalf of any party, hereto in connection with proceedings under or relating to the HSR Act prior to their submission. In connection with the foregoing, with respect to this Agreement and the transactions contemplated hereby, (w) to the extent permitted by applicable Law, the parties agree to provide the other (or its outside counsel, where appropriate), with any information that may be necessary or advisable to make effective such applications, notices, and/or filings, including, upon reasonable request by the other, all information concerning itself, its Subsidiaries, directors, officers, and stockholders, and copies of any material correspondence, filing or communication (or oral summaries or memoranda setting forth the substance thereof) between such party or any of its Representatives, on the one hand, and any Governmental Entity or members of their respective staffs and/or any third party, on the other hand, (x) each party will keep the other apprised of the status of matters relating to completion of the transactions contemplated herein; (y) to the extent permitted by applicable Law, prior to submitting or making any such correspondence, filing or communication to any such Governmental Entity or members of their respective staffs, the parties shall first provide the other party with a copy of such correspondence, filing or communication in draft form, and consider in good faith all comments timely made by the other party with respect thereto; and (z) to the extent permitted by applicable Law, each of the parties shall not agree to participate in any meeting or discussion with any such Governmental Entity or third party in respect of any filing, investigation, or inquiry concerning this Agreement unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate therein. The parties hereto agree that they will consult with each other with respect to the obtaining of all permits, consents, approvals and authorizations of all third parties and Governmental Entities necessary or advisable to consummate the transactions contemplated by this Agreement, subject in . Notwithstanding the case of Seller foregoing and anything to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contrary contained in this Agreement that is qualified as to Seller Material Adverse EffectAgreement, Parent Material Adverse Effect or Buyer Material Adverse Effectshall, as on behalf of Parent and the case may beCompany and their respective Subsidiaries, becomes untrue or incorrect in any control and lead all communications and strategy with respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations obtaining of all Permits, including any approvals, authorizations permits and consents from third parties, necessary or advisable to consummate the parties under transactions contemplated by this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. Upon the terms and subject to the conditions set forth in this Agreement, each of the parties agrees to use its (a) Subject the taking of all acts necessary to cause the conditions precedent set forth in Article VI to be satisfied, (b) the obtaining of all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities and the making of all necessary registrations, declarations and filings and the taking of all steps as may be necessary to obtain an approval (including the Company Required Consents and the Parent Required Consents) or waiver from, or, to the terms extent any approval or waiver cannot be obtained, to avoid the need to obtain an approval (including the Company Required Consents and conditions herein providedthe Parent Required Consents) or waiver from, Selleror to avoid an action or proceeding by, Parent any Governmental Entity and Buyer (c) the obtaining of all necessary consents, approvals or waivers from third parties. In connection with and without limiting the foregoing, the Company shall: (i) , if any state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, the Company Voting Agreement, the Merger or any of the other transactions contemplated hereby or thereby, use all its reasonable best efforts to cooperate with one another in (A) determining which filings are required allow the Merger and the other transactions contemplated by this Agreement and the Company Voting Agreement to be made prior consummated as promptly as practicable on the terms contemplated by this Agreement and the Company Voting Agreement and otherwise to minimize the Effective Time with, and which consents, approvals, permits effect of such statute or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United Statesregulation on this Agreement, the several states Company Voting Agreement, the Merger and foreign jurisdictions the other transactions contemplated hereby and any third parties thereby. The Company, Guarantor and Parent shall provide such assistance, information and cooperation to each other as is reasonably requested in connection with the execution foregoing and, in connection therewith, shall notify the other person promptly following the receipt of any comments from any Governmental Entity and delivery of this Agreementany request by any Governmental Entity for amendments, supplements or additional information in respect of any registration, declaration or filing with such Governmental Entity and shall supply the other person with copies of all correspondence between such person or any of its representatives, on the one hand, and any Governmental Entity, on the consummation other hand. In addition, the Company, Guarantor and Parent shall cooperate to promptly develop a mutually acceptable plan to obtain the Company Required Consents and the Parent Required Consents as expeditiously as reasonably practicable and without undue expense. To the extent that either party or any of its subsidiaries is required to make any registration, declaration or filing with any PUC in connection with obtaining the transactions contemplated herebyCompany Required Consents or the Parent Required Consents, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements party shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all its reasonable best efforts to obtain(i) provide the other party an opportunity to review and comment on such registration, declaration or filing reasonably in writingadvance of making any such registration, declaration or filing, (ii) give reasonable consideration to all comments proposed by the consents listed other party and (iii) if applicable, coordinate the submission of such registration, declaration or filing with the other party. Neither the Company nor any of its subsidiaries shall enter into or agree to any terms or conditions in Section 5.3(a)(1) of connection with obtaining the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Company Required Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent (which consent shall not be unreasonably withheld or delayed). None of Guarantor, Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect Sub or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid subsidiaries shall enter into or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid terms or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) conditions in connection with obtaining the Ground Lessor Parent Required Consents without the prior written consent of the Company (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger which consent shall not be adjusted pursuant to this Section 5.3(dunreasonably withheld or delayed). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Acteach party shall use, and (B) timely making all such filings and timely seeking all such consentsshall cause its Affiliates to use, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things that are reasonably necessary, proper or appropriate advisable under applicable Law to consummate and make effective the transactions contemplated by Transactions, including, but subject to the terms and conditions of this Agreement, subject (i) the satisfaction of the conditions set forth in Article VII, (ii) obtaining all necessary or advisable Authorizations and Consents from, making all necessary or advisable registrations, declarations and filings with and taking all steps as may be reasonably necessary or advisable to obtain any Authorizations or Consents from, or avoid a Proceeding with, any Governmental Entity or other third-party with respect to this Agreement or the case Transactions, including the expiration or termination of Seller any applicable waiting period in respect of the HSR Act and other applicable Antitrust Laws or FDI Laws, (iii) furnishing all information required to be furnished in connection with obtaining any Authorizations or Consents from or making any filings with any Governmental Entity or other third-party, and promptly cooperating with and furnishing information in connection with any such requirements imposed upon any party or any of their respective Subsidiaries or Affiliates in connection with this Agreement or the exercise consummation of the Transactions, (iv) defending or contesting any Proceedings by any Governmental Entity or third-party challenging this Agreement or the Seller Board or Special Committee prior consummation of the Transactions and (v) executing and delivering any additional instruments necessary to consummate the Outside Date Transactions and to fully carry out the purposes of its duties under applicable law; provided however, that nothing this Agreement so long as such additional instruments are consistent with the terms of this Agreement. Nothing contained in this Section 5.3 6.04 shall require permit the Company or any Subsidiary thereof to take any action that otherwise requires the consent of approval of Parent pursuant to this Agreement without obtaining such consent or Buyer approval. In connection with obtaining any Authorization or Consent of any Governmental Entity or other Person with respect to pay or commit the Transactions pursuant to pay this Section 6.04, and subject to the other terms set forth herein, including the obligations on Parent set forth in Section 6.04(f), none of the Company and its Subsidiaries, on the one hand, nor Parent nor any money of its Affiliates, on the other hand, shall be required to make any material payment of any fees, expenses or other consideration (including increased or accelerated payments), other than customary filing fees, or agree to incur any liability material contractual or other obligation (exceptmaterial concessions. (b) Seller shall give prompt notice Without limiting the generality of Section 6.04(a), (A) each party agrees to make, or cause the applicable Affiliate thereof to make, an appropriate filing, if necessary, pursuant to the HSR Act as promptly as reasonably practicable, but in any event no later than five (5) Business Days following the date of this Agreement (unless a different period is otherwise agreed by the parties in writing) and (B) each party agrees to make, or cause the applicable Affiliate thereof to make, all necessary filings pursuant to any other applicable Antitrust Law or any FDI Law, including the filings set forth on Section 7.01(b) of the Company Disclosure Letter, as promptly as reasonably practicable following the date of this Agreement (and the identification of the requirements to make such filing), but (solely with respect to those filings identified on Section 7.01(b) of the Company Disclosure Letter) in any event no later than twenty (20) Business Days following the date of this Agreement (unless a different period is otherwise agreed by the parties in writing) and in all cases, to supply as promptly as reasonably practicable to the applicable Governmental Entity any additional information and documentary material that may be reasonably requested pursuant to the HSR Act or such other Antitrust Law or any FDI Law. (c) Without limiting the generality of Section 6.04(a), each of Parent and Buyerthe Company shall, and Parent and Buyer shall give prompt notice cause their respective Affiliates, to Seller, (i) if furnish to the other party such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of any representation filing or warranty submission under the HSR Act or any other Antitrust Law or any FDI Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any substantive communication with, and any inquiries or requests for additional information from, the United States Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”) and any other Governmental Entity regarding the Merger or any of the other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation (or it is not reasonably practicable for one party to do so), keep such party apprised with respect thereto, (D) cooperate with one another in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, substantive correspondence and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Entity or them contained members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Merger and the other Transactions, (iv) respond to any inquiry or request for additional information or documentation from the FTC, the DOJ or any other Governmental Entity of competent jurisdiction as promptly as reasonably practicable, and (v) consult with one another in connection with any inquiry, hearing, investigation, Proceeding or litigation by, or negotiations with, any Governmental Entity relating to this Agreement that is qualified as to Seller Material Adverse EffectAgreement, Parent Material Adverse Effect the Merger or Buyer Material Adverse Effectany of the other Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Entity relating thereto. Any such additional information furnished in connection with the preparation of any filing or submission shall be in substantial compliance with the requirements of the HSR Act and any other applicable Antitrust Law or any FDI Law, as the case may be. The Company and Parent shall not, becomes untrue and shall cause their respective Affiliates not to, (A) commit to or incorrect in agree with any respect Governmental Entity to stay, toll or extend any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds applicable waiting period under the Financing Commitment are reduced as HSR Act or enter into a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent timing agreement with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some other Antitrust Law or all of the Lender Consents will not be obtained or waived any FDI Law or (B) pull and refile any filing made under the Financing Overage will be an insufficient source HSR Act, in the case of funds for the prepayment in full each of all the Underlying Loans clauses (together with all prepayment penaltiesA) or (CB) Buyer will without the prior written consent of the other party, which consent shall not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties)unreasonably withheld, Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereofconditioned or delayed. The proceeds parties acknowledge and agree that, notwithstanding the foregoing, Parent shall ultimately control the determination over the strategy and course of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent action with respect to obtaining any Authorizations or Consents under any Antitrust Laws or FDI Laws, including the content of any filings under such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance Antitrust Laws or FDI Laws, and any substantive communications with their respective termsany Governmental Entity relating thereto; provided, all amounts paid or required to be paid pursuant to clause that, (i) above or this clause the Company shall have the right to participate in all aspects thereof and Parent shall consult with the Company and its advisors in connection therewith and consider in good faith their views and recommendations; (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and if the parties shall use all reasonable best efforts receive a request for additional documents and information, each party will endeavor to minimize the Prepayment Amounts; substantially comply with such request within one hundred twenty (120) days from receipt; and (iii) In in the event thatParent does not substantially comply with such request within one hundred twenty (120) days from receipt, following Parent and the operation Company shall jointly control the determination over the strategy and course of clauses (iaction with respect to obtaining any Authorizations or Consents under any Antitrust Laws or FDI Laws from such time until the conditions listed in Section 7.01(b) and (ii) above, all of the Lender Consents this Agreement have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consentssatisfied. (d) Seller, Buyer and Parent Each party shall use bear all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan its costs and termination fees paid or payable by Sellerexpenses related to the engagement of any third-party consultants, Seller Partnership or any other Seller Subsidiary or Lessee in cash economists, counsel or other consideration (including by making commitments or incurring any liability or obligation) third parties in connection with obtaining consent the pursuit of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements any Authorizations or Consents with respect to any Seller Property (collectively and in the aggregateAntitrust Laws or FDI Laws and, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), matters set forth in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,0006.04, at the option request of Sellerany party, Seller may the other parties shall, and shall cause their respective and applicable Affiliates to, enter into a joint defense agreement, common interest agreement or other similar agreement. Parent shall pay all filing fees and other charges for the filings required under the HSR Act or such other Antitrust Law or any Seller Subsidiary may pay FDI Law set forth on Section 7.01(b) of the Company Disclosure Letter or commit that are otherwise agreed in writing to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced applicable by the sum of (x) $6,250,000 as required by the preceding sentence Company and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsParent. (e) For purposes The parties may, as they deem advisable, designate any competitively sensitive materials provided to the other under Section 6.04(c) or any other section of this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the last two sentences recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. (f) Without limiting the generality of Parent’s undertakings pursuant to Section 5.3(d6.04(a), no Franchise Fees Parent acknowledges and agrees that are paid its obligation to use reasonable best efforts to take, or payable by Parentcause to be taken, Buyer all reasonable actions, and to do, or Lessee shall cause to be included done, and to assist and cooperate with the other parties in determining doing, all things reasonably necessary or advisable under applicable Law to consummate and make effective the dollar thresholds in such sentences unless Seller shall have been consulted by ParentTransactions, Buyer or Lesseeincludes but is not limited to, as applicable, prior promptly as possible but subject to the incurrence other terms set forth in this Section 6.04, including the terms set forth in the proviso immediately below and the second to last sentence of such Franchise Fees.this

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger and the other Transactions, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties (provided, that neither the Company nor any of the Company Subsidiaries will make or agree to make any payment of a consent fee, “profit sharing” payment or other consideration (including increased or accelerated payments) or concede anything of monetary or economic value, for the purposes of obtaining any such third party consents without the prior consent of Parent), (iii) the defending of any lawsuits or other Legal Proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Agreement or the consummation of the Merger and the other Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of the Transaction Agreements. In furtherance and not in limitation of the foregoing, if an HSR Filing is required by Law, each of Parent and the Company shall, as promptly as practicable after the date hereof (but in any event not later than ten (10) business days after the date hereof) file with the Antitrust Division of the U.S. Department of Justice (the “DOJ”) and the Federal Trade Commission (the “FTC”) a Notification and Report Form pursuant to the HSR Act (the “HSR Filing”), and at the same time as making such HSR Filing shall request that the DOJ and the FTC grant “early termination” of the waiting period related to such HSR Filing and this Agreement and the Transactions. Parent shall pay all filing fees required to be paid in conjunction with such HSR Filing or any other Antitrust Laws, and the Company shall not be required to pay any fees or other payments to any Governmental Entity in connection with any filings under, the HSR Act or such other filings as may be required under applicable Antitrust Laws in connection with the Merger or the other Transactions. Without limiting the generality of the foregoing, each of Parent and the Company (A) shall use its reasonable best efforts to promptly provide all information requested by any Governmental Entity in connection with the Merger and the other Transactions and (B) shall use its reasonable best efforts to promptly take all actions and steps necessary to obtain and secure the expiration or termination of any applicable waiting periods under the HSR Act or other applicable compliance with any mandatory pre-merger notification and approval requirements under any foreign (non-US) investment control, antitrust or competition laws (“Foreign Antitrust Laws”) and obtain any clearance or approval required to be obtained from the FTC, the DOJ, any state attorney general, any foreign competition authority or any other Governmental Entity in connection with the Merger and the other Transactions. For the avoidance of doubt, nothing in this paragraph or Agreement shall require Parent or Sub to withdraw and resubmit the CFIUS Filing, whether in response to a request by CFIUS or any CFIUS member agency or otherwise. (b) The parties shall cooperate to submit a draft joint voluntary notice to CFIUS with respect to the Transactions (the “Draft CFIUS Filing”) as soon as practicable after the date of this Agreement. After receipt of confirmation that CFIUS has no further comments or inquiries related to the Draft CFIUS Filing, the parties shall promptly submit a formal joint voluntary notice to CFIUS with respect to the Transactions (the “CFIUS Filing”). The parties shall use their reasonable best efforts to comply at the earliest practicable time required by CFIUS or any CFIUS member agency with any request for additional information, documents or other materials, and will use their reasonable best efforts to cooperate with each other in connection with both the Draft CFIUS Filing and the CFIUS Filing and in connection with resolving any investigation or other inquiry of CFIUS or any CFIUS member agency. The parties shall each use their best efforts to promptly inform the other party of any oral communication with, and provide copies of written communications with, CFIUS or any CFIUS member agency regarding any such filings; provided, that no party shall be required to share communications containing its confidential business information if such confidential information is unrelated to the Transactions. The parties shall undertake reasonable best efforts to promptly take, or cause to be taken, all action, and do, or cause to be done, all other things necessarynecessary or advisable to obtain CFIUS Approval as soon as practicable, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee any event prior to the Outside Date Date, including, but not limited to, using reasonable best efforts, if required, to execute a reasonable letter of its duties under applicable law; provided howeverassurance or entering into another reasonable form of mitigation agreement with CFIUS or CFIUS member agencies on terms, that nothing in this Section 5.3 shall require Parent conditions, or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyermeasures sought by CFIUS, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification party shall affect be required to take or agree to take any undertaking that is not conditioned on the representations, warranties, covenants or agreements consummation of the parties Transactions. Parent shall pay all filing fees required in connection with the CFIUS Filing and the Company shall not be required to pay any fees or the conditions other payments to the obligations of the parties any Governmental Entity in connection with any filings under this AgreementCFIUS. (c) With Without limiting the generality of anything contained in Section 6.03(a), subject to applicable Law, each party hereto shall: (i) give the other parties prompt written notice of the making or commencement of any request, inquiry, investigation, action or Legal Proceeding by or before any Governmental Entity with respect to securing the Lender ConsentsMerger and the other Transactions; (ii) keep the other parties informed as to the status of any such request, Buyer inquiry, investigation, action or legal Proceeding; and Seller shall cooperate with each (iii) promptly inform the other parties of any communication to or from the FTC, the DOJ or any other Governmental Entity regarding the Merger and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Scheduleother Transactions. Each party shall update hereto will consult and cooperate with the other on its progress at parties and will consider in good faith the request views of the other: (i) other parties in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any such request, inquiry, investigation, action or Legal Proceeding. In the event some addition, except as may be prohibited by any Governmental Entity or all by any Law, in connection with any such request, inquiry, investigation, action or Legal Proceeding, each party hereto will permit authorized representatives of the Lender Consents are not obtainedother parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or Legal Proceeding and to the extent the Original Loan Amounts (as defined have access to and be consulted in the Financing Commitment)connection with any document, as opinion or proposal made or submitted to any Governmental Entity in connection with such Original Loan Amount may be increased pursuant to the terms of the Financing Commitmentrequest, exceed $454,600,000 less the amountinquiry, if anyinvestigation, by which the proceeds under the Financing Commitment are reduced as a result of any defect action or loss referred to in clause (i)(A) of Section 7.1(j) (whether Legal Proceeding; provided that documents that contain confidential or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent sensitive information with respect to such Underlying Loan any Investor may be provided on an outside counsel-only basis. Notwithstanding anything to the contrary in this Section 6.03, Parent shall be deemed to have been obtained; (ii) In the event that at responsible for determining all aspects of strategy associated with obtaining any time after July 15approvals, 1999, Seller reasonably believes that (A) some consents or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount waivers necessary to pay at Closing all remaining amounts consummate the Merger as required under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender ConsentsAntitrust Law. (d) SellerNeither Parent nor Sub shall, Buyer and Parent nor shall use all reasonable best efforts they permit their respective Subsidiaries to, acquire or agree to minimize acquire any rights, assets, business, Person or division thereof (i) through acquisition, license, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected to materially increase the amounts risk of so-called Property Improvement Plan costs and termination fees paid not obtaining any applicable clearance, consent, approval or payable by Seller, Seller Partnership waiver under the HSR Act or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements Foreign Antitrust Laws with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsother Transactions. (e) For purposes Nothing in this Section 6.03 shall require any Investor or any Affiliate of Parent or Sub to dispose of any of its assets or to limit its freedom of action with respect to any of their businesses or to commit or agree to any of the last two sentences of Section 5.3(d)foregoing to obtain any consents, no Franchise Fees that are paid approvals, permits or payable by Parent, Buyer authorizations or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to remove any impediments to the incurrence of such Franchise FeesMerger relating to the HSR Act, Foreign Antitrust Laws or other antitrust, competition or premerger notification, or trade regulation law, regulation or order (“Antitrust Laws”) or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding relating to Antitrust Laws.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another set forth in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, Sub and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required Company agrees to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Transaction Documents, including (i) the taking of all commercially reasonable acts necessary to cause the conditions set forth in Article VI to be satisfied, (ii) obtaining all necessary, proper or advisable actions or non-actions, waivers, consents, qualifications and approvals from Governmental Entities and making all necessary, proper or advisable registrations, filings and notices and taking all reasonable steps as may be necessary to obtain an approval, waiver or exemption from any Governmental Entity (including, without limitation, under the HSR Act); (iii) obtaining all necessary, proper or advisable consents, qualifications, approvals, waivers or exemptions from the non-governmental Third Parties; and (iv) executing and delivering any additional documents or instruments necessary, proper or advisable to consummate the transactions contemplated by, and to fully carry out the purposes of, the Transaction Documents. (b) Without limiting the foregoing, (i) each of the Company, Parent and Merger Sub shall use its commercially reasonable efforts to make promptly any required submissions under the HSR Act and any other Antitrust Laws which the Company or Parent determines should be made, in each case with respect to the Merger and the transactions contemplated hereby and (ii) Parent, Merger Sub and the Company shall cooperate with one another (A) in promptly determining whether any filings are required to be or should be made or consents, approvals, permits or authorizations are required to be or should be obtained under any other federal, state or foreign Law or regulation or whether any consents, approvals or waivers are required to be or should be obtained from other parties to loan agreements or other contracts or instruments material to the Company’s business in connection with the consummation of the transactions contemplated by this Agreement and (B) in promptly making any such filings, furnishing information required in connection therewith and seeking to obtain timely any such consents, permits, authorizations, approvals or waivers. Each of the Company and Parent shall (1) give the other party prompt notice of the commencement or threat of commencement of any suit, claim, action, investigation or proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, subject in (2) keep the case of Seller other party informed as to the exercise by status of any such suit, claim, action, investigation, proceeding or threat, (3) promptly inform the Seller Board other party of any material communication concerning the HSR Act or Special Committee prior other Antitrust Laws to or from any Governmental Entity regarding the Merger and (4) furnish to the Outside Date of its duties under applicable law; provided however, that nothing other party such information and assistance as the other may reasonably request in this Section 5.3 shall require Parent or Buyer to pay or commit to pay connection with any money filing or other consideration act undertaken in compliance with the HSR Act and any other Antitrust Laws. Except as may be prohibited by any Governmental Entity, the Company and Parent will consult and cooperate with one another, and will consider in good faith the views of one another, in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any suit, claim, action, investigation or proceeding under or relating to incur the HSR Act or any liability other Antitrust Law. Each of the Company and Parent will permit authorized Representatives of the other party to be present at each meeting or other obligation (exceptconference relating to any such legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with any such legal proceeding. (bc) Seller shall give prompt notice to Parent and BuyerEach of the Company, on the one hand, and Parent and Buyer Merger Sub, on the other, shall give prompt notice to Sellerpromptly (and in any event within five (5) Business Days) notify the other party in writing if it believes that such party has breached any representation, (i) if any representation warranty, covenant or warranty made by it or them agreement contained in this Agreement that is qualified could, individually or in the aggregate, result in a failure of a condition set forth in Section 6.2 or Section 6.3 if continuing on the Closing Date. (d) If any Antitakeover Laws are or may become applicable to the Merger or any of the other transactions contemplated by this Agreement, the Company and the Company Board of Directors shall promptly grant such approvals and use commercially reasonable efforts to take such other lawful actions as to Seller Material Adverse Effect, Parent Material Adverse Effect are necessary so that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement or Buyer Material Adverse Effectthe Merger, as the case may be, becomes untrue and otherwise take such other commercially reasonable and lawful actions to eliminate or incorrect in any respect or any minimize the effects of such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenantstatute, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overageregulations promulgated thereunder, the Lender Consent with respect to on such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consentstransactions. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as reasonably practicable, the Offer, the Merger and the other Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers and consents from, the making of all necessary registrations, declarations and filings with, and the taking of all reasonable steps as may be necessary to avoid a Proceeding by, any Governmental Entity with respect to this Agreement or the Transactions, (ii) the defending or contesting of any Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall (A) take all action necessary to ensure that no restrictions on business combinations of any Takeover Law or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if the restrictions on business combinations of any Takeover Law or similar statute or regulation becomes applicable to any Transaction or this Agreement, use its reasonable best efforts take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Transactions and this Agreement. (b) Parent and the Company shall, or shall cause their ultimate parent entity as that term is defined in the HSR Act to, in consultation and cooperation with the other, file (i) with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required under the HSR Act for the Offer, the Merger or any of the other Transactions as promptly as practicable (but in no event later than ten business days after the date of this Agreement) and (ii) all appropriate filings, notices, applications or similar documents required under any Foreign Antitrust Law as promptly as reasonably practicable. Parent shall with the Company’s reasonable cooperation file all appropriate filings, notices, applications or similar documents required under any Foreign Antitrust Law as promptly as reasonably practicable. Any such filings shall be in substantial compliance with the requirements of the HSR Act or the applicable Foreign Antitrust Laws, as the case may be. Each of Parent and the Company shall (i) furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or submission which is necessary under the HSR Act or any Foreign Antitrust Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other Governmental Entity regarding the Offer, the Merger or any of the other Transactions, and permit the other party (or its outside counsel if necessary to retain confidentiality) to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Offer, the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party apprised with respect thereto, (D) cooperate with one another in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Offer, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Offer, the Merger and the other Transactions and (iv) comply with any inquiry or request from the FTC, the DOJ or any other Governmental Entity as promptly as reasonably practicable. Any such additional information shall be in substantial compliance with the requirements of the HSR Act or the applicable Foreign Antitrust Law, as the case may be. The parties agree not to extend, directly or indirectly, any waiting period under the HSR Act or any Foreign Antitrust Law or enter into any agreement with a Governmental Entity to delay or not to consummate the Offer, the Merger or any of the other Transactions, except with the prior written consent of the other party, which consent shall not be unreasonably withheld. Without limiting the generality of the foregoing, each Party shall provide to the other (or the other’s respective advisors) upon request copies of all correspondence between such Party and any Governmental Entity relating to the transactions contemplated by this Agreement. The Parties may, subject in the case of Seller as they deem advisable and necessary, designate any competitively sensitive materials provided to the exercise other under this Section 6.02 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the Seller Board recipient without the advance written consent of the Party providing such materials. (c) Parent and Merger Sub agree to take promptly any and all steps necessary to avoid, eliminate or Special Committee prior resolve each and every impediment and obtain all clearances, consents, approvals and waivers under the HSR Act or any Foreign Antitrust Law that may be required by any Governmental Entity, so as to enable the parties to close the Transactions as promptly as practicable (and in any event by or before than the Outside Date of its duties under applicable lawDate); provided provided, however, that nothing in this Section 5.3 6.02 and notwithstanding anything to the contrary in this Agreement, neither Parent nor Merger Sub shall require Parent or Buyer have any obligation to pay or commit to pay any money or other consideration (or to incur cause any liability of their respective subsidiaries or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, affiliates or the Company to): (i) if sell, license, divest or dispose of or hold separate the assets, Intellectual Property or businesses of any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or entity; (ii) terminate, amend or assign any existing relationships or contractual rights or obligations of any entity; (iii) change or modify any course of conduct regarding future operations of any entity; (iv) otherwise take any action that would limit the failure by it freedom of action with respect to, or them the ability to comply with retain, one or satisfy more businesses, assets or rights of any entity or interests therein; or (v) commit to take any such action in any material respect any covenantthe foregoing clause (i), condition (ii), (iii) or agreement to be complied with or satisfied by it under this Agreement(iv); provided, however, that no such notification Parent and Merger Sub shall affect take the representationsactions in the foregoing clause (i), warranties(ii), covenants (iii) or agreements of the parties or the conditions (iv) with respect to the obligations of Company (including, after the parties Effective Time, the Surviving Corporation) if such action (A) is necessary to obtain required clearances or waiting period expirations or terminations as may be required under this Agreement. the HSR Act or any Foreign Antitrust Law by or before the Outside Date and (cB) With respect would not, individually or in the aggregate, reasonably be expected to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, be materially detrimental to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may benefits anticipated to be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, derived by which the proceeds under the Financing Commitment are reduced Parent and its affiliates as a result of the Transactions. In addition, the Company shall not offer or commit to take any defect or loss of the actions referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"i), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15), 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penaltiesiii) or (Civ) Buyer will of the immediately preceding sentence without Parent’s prior written consent. For the avoidance of doubt, Parent shall not require the Company to, and the Company shall not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties)required to, Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and take any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements action with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership Order or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining applicable Law that binds the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, Company prior to the incurrence of such Franchise FeesEffective Time.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except. (b) Seller shall give prompt notice to Parent In connection with and Buyer, and Parent and Buyer shall give prompt notice to Seller, without limiting the foregoing, (i) if as soon as practicable, Parent and the Company shall jointly submit to the Committee on Foreign Investment in the United States ("CFIUS") a draft voluntary notice of the Merger pursuant to Exon-Xxxxxx and, within approximately five (5) business days thereafter, a final Exon-Xxxxxx notice. Parent and the Company shall each, to their fullest ability, provide CFIUS with any representation additional or warranty made supplemental information requested by it CFIUS or them contained its member agencies during the Exon-Xxxxxx review process. Parent and the Company, in this cooperation with each other, shall each take all commercially reasonable steps advisable, necessary or desirable to finally and successfully complete the Exon-Xxxxxx review process as promptly as practicable. In addition, as soon as practicable, Parent and the Company shall prepare and submit to the Defense Security Service ("DSS") of the United States Department of Defense ("DoD") and, to the extent applicable, any other agency of the United States Government, notification of the Merger pursuant to the NISPOM and any other applicable national or industrial security regulations, and fully cooperate in requesting from DSS approval to operate the business of the Company pursuant to a proposed FOCI mitigation plan in accordance with the NISPOM. Subject to Section 6.04(b)(ii) herein, Parent and the Company shall enter into a Special Security Agreement ("SSA") with DoD in accordance with the NISPOM and, where necessary to perform contracts requiring access to Navy Nuclear Propulsion Information or proscribed classified information as defined in the NISPOM, a Proxy Agreement in accordance with the NISPOM. With the exception of an SSA covering the Company or a Proxy Agreement that is qualified does not result in a Proxy Threshold Event, neither Parent nor the Company shall be required to agree to any other structural or conduct remedy pursuant to this paragraph which would have a material adverse effect on the business of Parent and/or the Company Subsidiaries taken as a whole after giving effect to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or Merger; (ii) Notwithstanding any other provision herein, should a Proxy Threshold Event occur in which the Company and/or the Company Subsidiaries be required to place under a Proxy Agreement operations of the failure Company and/or the Company Subsidiaries that account for a percentage equal to 35.0% or more but less than 40.0% of the Company’s total revenue during the immediately preceding fiscal year, prior to exercising its termination rights under Section 8.01(g) herein, Parent shall consult with the Chief Executive Officer of the Company for a 30-day period (provided that in no event shall such period extend beyond the Outside Date) regarding the potential for Parent to waive its termination right under Section 8.01(g), and such consultation shall take into account the extent to which the inclusion of any business operations under the Proxy Agreement would not impact the expected synergies of the combined company; (iii) each party shall take promptly all reasonable actions necessary to make all notifications and filings required for the transactions contemplated hereby under applicable competition Laws (including the HSR Act), and submitting responses to all requests for further information from the applicable Governmental Entities that are responsible for applying merger control or antitrust legislation (the "Competition Authorities"), in each case, in substantial compliance with the requirements of the applicable competition Law, and shall furnish to the other such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under applicable competition Law or requested by it any Competition Authorities. Each party shall use its reasonable best efforts to obtain promptly any clearance required under the HSR Act or them other applicable competition Laws for the consummation of the Merger and the transactions contemplated hereby. Without limiting the foregoing, Parent and the Company shall each use its respective best efforts to comply avoid or eliminate each and every impediment under the HSR Act or other applicable competition Laws that may be asserted by any Governmental Entity with respect to the Merger so as to enable the consummation of the Merger to occur on or satisfy prior to the date specified in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this AgreementSection 8.01(b)(i); provided, however, that Parent shall not be required to enter into any structural or conduct remedy which would have a material adverse effect on the business of Parent and its Subsidiaries, including the Surviving Corporation; (iv) the Company and the Company Board shall (A) take all action reasonably necessary to ensure that no such notification shall affect the representations, warranties, covenants state takeover statute or agreements of the parties similar statute or the conditions regulation is or becomes applicable to the obligations of the parties under any transactions contemplated hereby or this Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, take all action necessary to ensure that the Merger and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by the this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and the other transactions contemplated hereby, and (v) the Company shall cooperate with Parent in the preparation of all notifications and filings required to be filed by Parent with any Governmental Entities within 30 days after the Closing Date in connection with the transactions contemplated hereby, and in submitting responses to all requests for further information from the applicable Governmental Entities, including without limitation providing to Parent all information reasonably requested by Parent for the purpose of preparing all such notifications and filings. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each Each of the Lender ConsentsCompany, including taking on the actions set forth in Section 5.3(d) one hand, and Parent and Sub, on the other hand, shall, with regard to the review and/or defense of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: transactions contemplated hereby, (i) In promptly inform and provide the event some or all other a copy of any material communication received by such party from the Federal Trade Commission, the Antitrust Division of the Lender Consents are not obtainedDepartment of Justice, to the extent the Original Loan Amounts (as defined in the Financing Commitment)other Competition Authorities, as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of CFIUS or any defect other Governmental Entity or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) private litigant; and (ii) abovepermit the other party reasonable time and notice to (x) review and comment in advance on any material communication to be made or delivered to any such Governmental Entity or private litigant, all including any proposed understanding, undertakings, or agreements, (y) consult with the other party in advance of the Lender Consents have not been obtained any meeting or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in fullconference with any such Governmental Entity or private litigant, and Buyer shall agree (z) attend and participate in such meetings and conferences (to waive the condition that it receive any of the Lender Consentsextent permitted by such Governmental Entity or private litigant). (d) SellerThe Company shall deliver to Parent at the Closing a duly executed and acknowledged certificate, Buyer in form and substance acceptable to Parent shall use all reasonable best efforts and in compliance with the Code and Treasury regulations, certifying such facts as to minimize (i) establish that the amounts sale of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent Company Common Stock is exempt from withholding under Section 1445 of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsCode. (e) For purposes Parent agrees that the Company will be operated as a stand-alone subsidiary of Parent's group in accordance with the NISPOM following the Merger with the objective of continuity of management and operations. Parent plans to grow the business of the last two sentences Company as part of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or LesseeParent group, as applicablewell as the overall business of Parent group, in the United States and expects to work with management and the board of directors of the Company following the Merger to promote and further such goals of growth. Parent currently plans to continue operating the businesses of the Surviving Corporation after the Merger substantially as they exist prior to the incurrence of such Franchise FeesMerger, except as may otherwise be required in connection with any governmental regulatory approval or by Law.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties hereto shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all other things reasonably necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Merger, including (i) the obtaining of all Consents and the making of all Registrations specified in Section 3.3(c) and Section 4.4 and the taking of all reasonable steps as may be necessary to obtain such Consents and to make such Registrations, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger, including, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the obligations set forth in this sentence shall not be deemed to have been breached as a result of actions by the Company expressly permitted under Section 6.4. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to prepay or redeem debt (or notes), amend or waive the provisions of any Contract, or to pay any consent or similar fees or payments unless such action is conditioned upon the consummation of the Merger. Without limiting the foregoing, Parent and its Subsidiaries shall not take or agree to take any action that would reasonably be expected to delay or prevent consummation of the Merger. (b) Without limiting the foregoing, each of Parent and the Company undertakes and agrees to file as soon as practicable, and in any event prior to seven days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”). Each of Parent and the Company shall (i) respond as promptly as practicable to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust matters, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the transactions contemplated by this Agreement, subject in except with the case prior written consent of Seller the other parties hereto. Parent shall commit to take all steps which it is capable of taking to avoid or eliminate impediments under any antitrust, competition, or trade regulation law that may be asserted by the FTC, the Antitrust Division, any State Attorney General or any other Governmental Entity with respect to the exercise Merger so as to enable the consummation thereof as promptly as reasonably practicable and shall defend through litigation on the merits any claim asserted in any court by any party, including appeals. Without limiting the foregoing, Parent shall propose, negotiate, commit to and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or, effective as of the Effective Time, the Surviving Corporation, or their respective Subsidiaries or otherwise commit to take any action which it is capable of taking, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of Parent, Holdco, the Surviving Corporation or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or Proceeding, which would otherwise have the effect of preventing or delaying the consummation of the Merger. At the request of Parent, the Company shall agree to divest, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services, or assets of the Company or any of its Subsidiaries, provided that any such action shall be conditioned upon the consummation of the Merger and the transactions contemplated hereby. Notwithstanding any of the foregoing, nor anything else contained in this Agreement, Parent shall not be required to sell, divest or otherwise dispose of, hold separate, enter into any license or similar agreement with respect to, restrict the ownership or operation of, or agree to sell, divest or otherwise dispose of, hold separate, enter into any license or similar agreement with respect to, or restrict the ownership or operation of (A) any assets or businesses of the Company or any of its Subsidiaries or (B) any assets or businesses of Parent or any of its Affiliates or Subsidiaries, in either case, to the extent that such sale, divestiture, disposition, or agreement would have a material adverse effect on the business, operations, financial condition or results of operations of the combined business of Fresenius Kabi AG and the Company after giving effect to the consummation of the transactions contemplated by this Agreement. Each party shall (i) promptly notify the other party of any material communication to that party from the FTC, the Antitrust Division, any State Attorney General or any other Governmental Entity and, subject to applicable law, discuss with and permit the other party to review in advance any proposed written communication to any of the foregoing; (ii) not agree to participate in any substantive meeting or discussion with any Governmental Entity in respect of any filings, investigation or inquiry concerning this Agreement or the Merger unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate thereat; and (iii) furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between them and their Affiliates and their respective representatives on the one hand, and any Governmental Entity or members of their respective staffs on the other hand, with respect to this Agreement and the Merger. (c) Prior to the Closing, the Company shall use its reasonable best efforts in connection with the debt and equity financing necessary to consummate the Merger (the “Financing”) to (provided that (x) none of the following shall unreasonably interfere with the operation of the Company and (y) all non-public or otherwise confidential information regarding the Company obtained by Parent pursuant to this Section 6.6(c) shall be kept confidential in accordance with the Confidentiality Agreement): (i) provide to Parent all cooperation reasonably requested by Parent that is reasonably necessary and customary; (ii) assist Parent with the preparation of materials for rating agency presentations necessary and customary in connection with the Financing and participate in customary meetings, presentations, road shows, due diligence sessions and drafting sessions and sessions with rating agencies; (iii) assist Parent with the preparation of an offering memorandum, in accordance with customary practices for an offering under Rule 144A under the Securities Act; provided that any offering memoranda or prospectuses need not be issued by the Seller Board Company or Special Committee any of its Subsidiaries; (iv) furnish Parent with financial and other pertinent information regarding the Company as may be reasonably requested by Parent to consummate the Financing of the type and form customarily included in private placements under Rule 144A under the Securities Act; and (v) assist Parent in procuring accountants’ comfort letters and consents, payoff letters, lien releases, legal opinions, surveys and title insurance as reasonably requested by Parent; (vi) provide and execute customary officer’s certificates and other similar documents as may be reasonably requested by Parent so long as no such document is effective until the occurrence of the Closing Date; and (vii) take all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent in connection with the consummation of the Financing. (d) Parent shall, promptly upon request by the Company, reimburse the Company for all out-of-pocket costs and third-party expenses incurred by the Company and its Subsidiaries and their respective representatives in connection with the cooperation set forth in Section 6.6(c). Nothing contained in Section 6.6(c) shall require the Company or any of its Subsidiaries to pay any commitment or other similar fee or incur any other liability in connection with the Financing (including, without limitation, entering into a purchase agreement with respect to the issuance of securities under Rule 144A under the Securities Act) prior to the Outside Date Effective Time. Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective officers, directors and other representatives for and against any and all losses or damages suffered or incurred by them in connection with the arrangement of its duties under applicable law; provided however, that nothing the Financing and any information utilized in this Section 5.3 shall require Parent connection therewith except with respect to information supplied by the Company specifically for inclusion or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptincorporation by reference therein. (be) Seller Subject to compliance with all applicable laws, the Company and Parent, as the case may be, shall confer on a regular basis with each other, report on operational matters and shall promptly advise each other orally and in writing upon becoming aware of any change or event having, or which would be reasonably likely to have, individually or in the aggregate, a Material Adverse Effect on the Company. Furthermore, the Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer Parent, Holdco or Sub shall give prompt notice to Sellerthe Company, upon becoming aware (i) if that any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes has become untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect respect, (ii) of any condition, event or circumstance that will result in any of the conditions in Section 7.2(a) or Section 7.3(a) not being met, or (iiiii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties of, or the conditions to the obligations of of, the parties hereto under this Agreement. (cf) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer Company and Parent shall use promptly provide each other (or their respective counsel) copies of all reasonable best efforts to minimize (i) filings made by such party or its Subsidiaries with the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership SEC or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) Governmental Entity in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, Agreement and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsMerger. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions most expeditious manner practicable, the Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, (iv) the Company obtaining the insurance coverage referred to in Section 7.02(g) and (v) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of the Transaction Agreements. In connection with and without limiting the foregoing, the Company and the Company Board shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement or any other Transaction Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement or any other Transaction Agreement, take all action necessary to ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreementthe Transaction Agreements and otherwise to minimize the effect of such statute or regulation on the Merger and the other Transactions. Notwithstanding the foregoing, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties Company shall not be prohibited under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay 6.03(a) from taking any money or other consideration or to incur any liability or other obligation (exceptaction permitted by Section 5.02(b). (b) Seller The Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer or Sub shall give prompt notice to Sellerthe Company, of (i) if any representation or warranty made by it or them contained in this any Transaction Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this any Transaction Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementthe Transaction Agreements. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things reasonably necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this AgreementMerger, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, including (i) the identification and obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary Registrations (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any representation Governmental Entity, including the filing under the HSR Act referred to in Section 6.5(b) and any required filings, notices or warranty made by it consents with state banking departments or them contained similar agencies required in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as connection with a change of control of the case may be, becomes untrue or incorrect in any respect Company or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or Subsidiary of the Company holding licenses as a money transmitter (the “Money Transmitter Licenses”), (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) subject to Section 6.12, the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the failure Merger, including, when reasonable, seeking to have any stay or temporary restraining order entered by it any court or them other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to comply with or satisfy in any material respect any covenant, condition or agreement consummate the Merger and to be complied with or satisfied by it under fully carry out the purposes of this Agreement; provided, however, that no such notification the obligations set forth in this sentence shall affect not be deemed to have been breached as a result of actions by the representationsCompany expressly permitted under Section 6.3; provided further, warrantiesthat, covenants or agreements of the parties or the conditions with respect to the obligations to obtain a consent or an approval relating to a change of control of the Money Transmitter Licenses (or any pending registrations for Money Transmitter Licenses) in any jurisdiction, if such consent or approval in such jurisdiction is not obtained prior to June 19, 2013, Parent and the Company agree to use reasonable best efforts to identify possible alternatives reasonably satisfactory to Parent that eliminate the need to obtain such approvals or consents in such jurisdiction, including, without limitation, by (x) entering into arrangements reasonably satisfactory to Parent (or consenting to the entry by Subsidiaries of the Company into arrangements reasonably satisfactory to Parent) with third parties that possess the necessary licenses providing the ability to create agency relationships to enable the Company and its Subsidiaries and the Distributors and reloaders of Cards managed by the Company and its Subsidiaries to provide money transmission services for the Company and its Subsidiaries from and after the Effective Time to permit the continued servicing of business relationships of the Company and its Subsidiaries until receipt of such consents or approvals, (y) to the extent feasible, ceasing operations of the Company and its Subsidiaries, as of the Effective Time, in one or more jurisdictions to the extent the operations in such jurisdiction require the Company or any of its Subsidiaries to have a Money Transmitter License, so long as such cessation of operations is not reasonably expected to result in the loss of 1.9% or more of the aggregate revenues of the Company and its Subsidiaries for the twelve (12) month period ending on the first anniversary of the Closing Date, and/or (z) obtaining written assurances reasonably acceptable to Parent from the applicable state banking department or similar agency that such consent or approval is forthcoming and no adverse action will be taken against the Company or any of its Subsidiaries in connection with the continued conduct of the operations of the Company or any of its Subsidiaries (or the Surviving Corporation or any of its Subsidiaries, as applicable) in the applicable jurisdiction notwithstanding the pendency of any such approval or consent (clauses (x), (y) and (z) collectively, “Alternate Arrangements”). Without limiting the rights of Parent or Sub under Section 7.1 or this Section 6.5, each of the Company and Parent agrees to use reasonable best efforts to implement and cause any Alternate Arrangements reasonably satisfactory to it to become effective as promptly as reasonably practicable after July 19, 2013 in order to permit the Effective Time to occur as promptly as reasonably practicable thereafter (subject to the satisfaction or waiver of the conditions set forth in Article VII). (b) Without limitation of the foregoing, (x) each of Parent and the Company undertakes and agrees to use its reasonable best efforts to cooperate with each other and submit in good faith (based on the Company’s past practices with respect to such filings) as soon as practicable, and in any event within forty five (45) days after the date hereof, all required filings, notices or consents in connection with the Money Transmitter Licenses for the jurisdictions set forth on Schedule 6.5(b) with the applicable state banking departments or similar agencies, and (y) each of Parent and the Company undertakes and agrees to file as soon as practicable, and in any event prior to ten (10) business days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”). Each of Parent and the Company shall (i) respond as promptly as practicable to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust matters, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto. (c) With If any objections are asserted with respect to securing the Lender Consentstransactions contemplated hereby under any Regulatory Law or if any order, Buyer and Seller judgment, decree or injunction of any Governmental Entity is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Regulatory Law: (x) each of the parties hereto shall cooperate with each other and use all its reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: to: (i) In the event some oppose or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (defend against any such loanobjection, an "Underlying Loan") which have not been received order, judgment, decree or injunction to prevent or enjoin consummation of this Agreement (and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; transactions contemplated herein); and/or (ii) In take such action as reasonably necessary to overturn any action by any Governmental Entity or private party to block consummation of this Agreement (and the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penaltiestransactions contemplated herein), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments defending any objection, order, judgment, decree or incurring injunction brought by any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.Governmental

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) parties will use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective the transactions contemplated by this Agreementeffective, subject in the case of Seller to most expeditious manner practicable, the exercise by Merger and the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided howeverother Transactions, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, including (i) the obtaining of all necessary actions or nonactions, waivers and Consents from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse EffectGovernmental Entity, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) the obtaining of all necessary Consents or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the failure Transactions, including seeking to have vacated or reversed any decree, order or judgment entered by it any court or them other Governmental Entity that would restrain, prevent or delay the Closing, and (iv) the execution and delivery of any additional instruments necessary to comply with or satisfy in any material respect any covenant, condition or agreement consummate the Transactions and to be complied with or satisfied by it under fully carry out the purposes of this Agreement; provided. In connection with and without limiting the foregoing, however, that no such notification shall affect the representations, warranties, covenants or agreements of Company and the parties or the conditions to the obligations of the parties under this Agreement. Company Board will (ci) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all their reasonable best efforts to secure each of ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, use their reasonable best efforts to ensure that the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update Merger and the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount Transactions may be increased pursuant to consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and the other Transactions. Parent and Sub will use their reasonable best efforts to obtain the proceeds of the Financing Commitmenton the terms and conditions described in the Commitment Letters, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred including using reasonable best efforts to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or consummate the Financings contemplated by the Commitment Letters at such time as all conditions to such financing and the other conditions in Section 7.01 and 7.02 are satisfied (except for those requiring delivery of the Lender Consents will not be obtained or waived or a certificate evidencing certain matters), (B) maintain the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as effectiveness of the Closing Date in whole or in part one or more of Commitment Letters (and the Underlying Loans for which Lender Consents have not been received or waived term sheets and any prepayment penalty with respect fee letters related thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable ) in accordance with their respective terms, (C) enter into definitive agreements with respect to the Financing contemplated by the Commitment Letters consistent with the terms and conditions contained therein, (D) satisfy on a timely basis all amounts paid or required conditions in such definitive agreements and in the Commitment Letters (and the term sheets and fee letters related thereto) and (E) in the event that the Equity Financing to be paid pursuant provided by any Equity Investor other than the Loss Payor shall become reasonably unlikely to clause be available (i) above or this clause (iisubject to the condition that the conditions in the Merger Agreement are satisfied) to obtain Lender Consents that exceed Parent, seek alternative common equity financing (“Alternative Equity Financing”) in an amount equal to the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required equity investment to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable provided pursuant to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence Equity Commitment Letter of such Franchise Fees.Equity Investor, provided, however, nothing in this Agreement will require Parent

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all their respective commercially reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers and other Consents from Governmental Entities and the making of all necessary registrations and filings and the taking of all reasonable steps as may be necessary to obtain any necessary waiver or other Consent from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary waivers or other Consents from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement. (b) In the event any litigation is commenced against Seller by any Person relating to the transactions contemplated by this Agreement, subject in Purchaser shall have the right, at their own expense, to participate therein, and Seller will not settle any such litigation without the consent of Purchaser. (c) Seller and Purchaser each shall keep the other apprised of the status of matters relating to completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies of notice or other communications received by Purchaser or Seller, as the case may be, or any of Seller their respective Subsidiaries, from any Governmental Entity with respect to the exercise transactions contemplated by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptAgreement. (bd) Seller shall give prompt notice to Parent and BuyerPurchaser, and Parent and Buyer Purchaser shall give prompt notice to Seller, of, and such party shall use its reasonable best efforts to prevent, or promptly remedy, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification Agreement within the time contemplated hereby. Seller shall affect the representations, warranties, covenants or agreements promptly advise Purchaser in writing of the parties any change or the conditions occurrence of any event after the date of this Agreement having, or which could reasonably be expected to have, any Seller Material Adverse Effect. In addition, Purchaser shall give Seller prompt written notice in the event it obtains Knowledge after the date hereof that any of Seller’s representations or warranties contained herein are untrue or inaccurate (it being understood and agreed that such notice shall not constitute an amendment or modification of Seller’s representations and warranties hereunder). Notwithstanding anything to the obligations contrary herein, in no event shall Purchaser have any Liability to Seller or any other Person for (A) any breach of Section 5.06 (other than compliance with the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer waiver as and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined provided in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) final sentence of Section 7.1(j5.06) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able any notice delivered to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount immediately preceding sentence of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d7.03(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as practicable, the transactions Merger and the other Transactions, including (i) the obtaining of all necessary actions or non-actions, waivers and consents from, the making of all necessary registrations, declarations and filings with and the taking of all reasonable steps as may be necessary to avoid a Proceeding by any Governmental Entity with respect to this Agreement or the Transactions, (ii) the defending or contesting of any Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement; provided that the parties hereto understand and agree that the reasonable best efforts of Parent and Merger Sub shall not be deemed to include (A) divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking any other action (or otherwise agreeing to do any of the foregoing) with respect to any of its or the Company’s or any of their respective Affiliates’ businesses, assets or properties if such action is required by a Governmental Entity in connection with the completion of or as a result of the Transactions or (B) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Entity if required in connection with the completion of the Transactions (each action or condition described in clause (A) or (B), a “Burdensome Condition”). In addition, the Company shall not accept any of the Burdensome Conditions or take any of the actions set forth in the proviso to the preceding sentence without Parent’s prior written consent or direction, which consent or direction shall not be unreasonably withheld, in which case the Company shall accept any such conditions or take any such actions as directed by Parent; provided that the Company shall not be required to accept any such Burdensome Conditions or take any such actions that are not conditioned upon consummation of the Transactions. In connection with and without limiting the foregoing, the Company and the Company Board shall (A) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement, subject in Agreement and otherwise to minimize the case effect of Seller to such statute or regulation on the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent Transactions and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (b) Without limiting the generality of the parties’ obligations under Section 5.3(a), and in furtherance thereof, Parent and the Company shall, or shall cause its ultimate parent entity as that term is defined in the HSR Act to, in consultation and cooperation with the other and as promptly as practicable, (i) (but in no event later than ten (10) Business Days after the date of this Agreement), file with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required under the HSR Act for the Merger or any of the other Transactions. Any such filings shall be in substantial compliance with the requirements of the HSR Act. Each of Parent and the Company shall, or shall cause its ultimate parent entity as that term is defined in the HSR Act to, (i) furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or submission that is necessary under the HSR Act, (ii) give the other party reasonable prior notice of any such filings (other than documents responsive to Item 4(c) or Item 4(d) of the HSR notification) or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other Governmental Entity regarding the Merger or any of the other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings (other than documents responsive to Item 4(c) or Item 4(d) of the HSR notification), submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Merger and the other Transactions and (iv) comply with any reasonable inquiry or request from the FTC, the DOJ or any other Governmental Entity as promptly as reasonably practicable. Any such additional information shall be in substantial compliance with the requirements of the HSR Act. The parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other under this Section 5.3 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. Parent agrees not to extend, directly or indirectly, any waiting period under the HSR Act or enter into any agreement with a Governmental Entity to delay or not to consummate the Merger or any of the other Transactions, except with the prior written consent of the Company, which consent may be withheld in its sole discretion. Notwithstanding anything to the contrary contained in this Agreement, but subject to Parent’s obligations set forth in this Section 5.3, Parent shall have the right to direct all antitrust and competition matters with any Governmental Entity consistent with its obligations hereunder and Parent shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances and shall take the lead in all meetings and communications with any Governmental Entity in connection with obtaining any necessary antitrust or competition clearances. (c) With respect To the extent reasonably requested by Parent, and subject to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts limitations on its obligation to secure each of the Lender Consents, including taking the actions provide information set forth in Section 5.3(d) of 5.2, the Seller's Disclosure Schedule. Each party Company shall update use commercially reasonable efforts to cooperate and provide the other on its progress at the Parent with such information as Parent may reasonably request of the otherwith respect to: (i) In any preparation of pro-forma financial statements or any filing with the event some or all Securities and Exchange Commission of the Lender Consents are not obtainedCompany’s financial statements which may be required in connection with the Transactions, including, to the extent reasonably requested by Parent, commercially reasonable efforts to obtain consents from its independent auditors to the Original Loan Amounts (as defined in filing of such auditor’s opinions on such financial statements and any representations or certifications from the Financing Commitment), as such Original Loan Amount Company’s management team that may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect required or loss referred to reasonably requested in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained;connection therewith; and (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able Parent’s efforts to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender ConsentsR&W Insurance Policy. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer each of the parties shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, hereby and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent)authorizations; (ii) use all reasonable best efforts (other than the payment of money) to obtainobtain in writing any consents required from third parties to effectuate the Merger, in writing, the such consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") be in form reasonably satisfactory to Seller and Buyer, provided however, that, without each of the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly)parties; and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement. If at any time after the Effective Time any further action is necessary or desirable to carry out the purpose of this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 each party shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (excepttake all such necessary action. (b) Seller Beacon and Beacon Partnership shall use all reasonable best efforts to obtain from Coopers & Lybrxxx, XXP, access to all work papers relating to audits of Beacon and Beacon Partnership performed by Coopers & Lybrxxx, XXP, and the continued cooperation of Coopers & Lybrxxx, XXP, with regard to the preparation of consolidated financial statements for the Surviving Trust. (c) Beacon and Beacon Partnership shall give prompt notice to Parent EOP and BuyerEOP Partnership, and Parent EOP and Buyer EOP Partnership shall give prompt notice to SellerBeacon and Beacon Partnership, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, materiality becomes untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Acteach party shall use, and (B) timely making all such filings and timely seeking all such consentsshall cause its Affiliates to use, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things that are reasonably necessary, proper or appropriate advisable under applicable Law to consummate and make effective the transactions contemplated by Transactions, including, but subject to the terms and conditions of this Agreement, subject (i) the satisfaction of the conditions set forth in Article VII, (ii) obtaining all necessary or advisable Authorizations and Consents from, making all necessary or advisable registrations, declarations and filings with and taking all steps as may be reasonably necessary or advisable to obtain any Authorizations or Consents from, or avoid a Proceeding with, any Governmental Entity or other third-party with respect to this Agreement or the case Transactions, including the expiration or termination of Seller any applicable waiting period in respect of the HSR Act and other applicable Antitrust Laws or FDI Laws, (iii) furnishing all information required to be furnished in connection with obtaining any Authorizations or Consents from or making any filings with any Governmental Entity or other third-party, and promptly cooperating with and furnishing information in connection with any such requirements imposed upon any party or any of their respective Subsidiaries or Affiliates in connection with this Agreement or the exercise consummation of the Transactions, (iv) defending or contesting any Proceedings by any Governmental Entity or third-party challenging this Agreement or the Seller Board or Special Committee prior consummation of the Transactions and (v) executing and delivering any additional instruments necessary to consummate the Outside Date Transactions and to fully carry out the purposes of its duties under applicable law; provided however, that nothing this Agreement so long as such additional instruments are consistent with the terms of this Agreement. Nothing contained in this Section 5.3 6.04 shall require permit the Company or any Subsidiary thereof to take any action that otherwise requires the consent of approval of Parent pursuant to this Agreement without obtaining such consent or Buyer approval. In connection with obtaining any Authorization or Consent of any Governmental Entity or other Person with respect to pay or commit the Transactions pursuant to pay this Section 6.04, and subject to the other terms set forth herein, including the obligations on Parent set forth in Section 6.04(f), none of the Company and its Subsidiaries, on the one hand, nor Parent nor any money of its Affiliates, on the other hand, shall be required to make any material payment of any fees, expenses or other consideration (including increased or accelerated payments), other than customary filing fees, or agree to incur any liability material contractual or other obligation (exceptmaterial concessions. (b) Seller shall give prompt notice Without limiting the generality of Section 6.04(a), (A) each party agrees to make, or cause the applicable Affiliate thereof to make, an appropriate filing, if necessary, pursuant to the HSR Act as promptly as reasonably practicable, but in any event no later than five (5) Business Days following the date of this Agreement (unless a different period is otherwise agreed by the parties in writing) and (B) each party agrees to make, or cause the applicable Affiliate thereof to make, all necessary filings pursuant to any other applicable Antitrust Law or any FDI Law, including the filings set forth on Section 7.01(b) of the Company Disclosure Letter, as promptly as reasonably practicable following the date of this Agreement (and the identification of the requirements to make such filing), but (solely with respect to those filings identified on Section 7.01(b) of the Company Disclosure Letter) in any event no later than twenty (20) Business Days following the date of this Agreement (unless a different period is otherwise agreed by the parties in writing) and in all cases, to supply as promptly as reasonably practicable to the applicable Governmental Entity any additional information and documentary material that may be reasonably requested pursuant to the HSR Act or such other Antitrust Law or any FDI Law. (c) Without limiting the generality of Section 6.04(a), each of Parent and Buyerthe Company shall, and Parent and Buyer shall give prompt notice cause their respective Affiliates, to Seller, (i) if furnish to the other party such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of any representation filing or warranty submission under the HSR Act or any other Antitrust Law or any FDI Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any substantive communication with, and any inquiries or requests for additional information from, the United States Federal Trade Commission (the “FTC”), the United States Department of Justice (the “DOJ”) and any other Governmental Entity regarding the Merger or any of the other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation (or it is not reasonably practicable for one party to do so), keep such party apprised with respect thereto, (D) cooperate with one another in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, substantive correspondence and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Entity or them contained members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Merger and the other Transactions, (iv) respond to any inquiry or request for additional information or documentation from the FTC, the DOJ or any other Governmental Entity of competent jurisdiction as promptly as reasonably practicable, and (v) consult with one another in connection with any inquiry, hearing, investigation, Proceeding or litigation by, or negotiations with, any Governmental Entity relating to this Agreement that is qualified as to Seller Material Adverse EffectAgreement, Parent Material Adverse Effect the Merger or Buyer Material Adverse Effectany of the other Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Entity relating thereto. Any such additional information furnished in connection with the preparation of any filing or submission shall be in substantial compliance with the requirements of the HSR Act and any other applicable Antitrust Law or any FDI Law, as the case may be. The Company and Parent shall not, becomes untrue and shall cause their respective Affiliates not to, (A) commit to or incorrect in agree with any Governmental Entity to stay, toll or extend any applicable waiting period under the HSR Act or enter into a timing agreement with respect to any other Antitrust Law or any FDI Law or (B) pull and refile any filing made under the HSR Act, in the case of each of clauses (A) or (B) without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed. The parties acknowledge and agree that, notwithstanding the foregoing, Parent shall ultimately control the determination over the strategy and course of action with respect to obtaining any Authorizations or Consents under any Antitrust Laws or FDI Laws, including the content of any filings under such representation Antitrust Laws or warranty that is not so qualified becomes untrue or incorrect FDI Laws, and any substantive communications with any Governmental Entity relating thereto; provided, that, (i) the Company shall have the right to participate in any material respect or all aspects thereof and Parent shall consult with the Company and its advisors in connection therewith and consider in good faith their views and recommendations; (ii) if the parties receive a request for additional documents and information, each party will endeavor to substantially comply with such request within one hundred twenty (120) days from receipt; and (iii) in the event Parent does not substantially comply with such request within one hundred twenty (120) days from receipt, Parent and the Company shall jointly control the determination over the strategy and course of action with respect to obtaining any Authorizations or Consents under any Antitrust Laws or FDI Laws from such time until the conditions listed in Section 7.01(b) of this Agreement have been satisfied. (d) Each party shall bear all of its costs and expenses related to the engagement of any third-party consultants, economists, counsel or other third parties in connection with the pursuit of any Authorizations or Consents with respect to any Antitrust Laws or FDI Laws and, in connection with the matters set forth in this Section 6.04, at the request of any party, the other parties shall, and shall cause their respective and applicable Affiliates to, enter into a joint defense agreement, common interest agreement or other similar agreement. Parent shall pay all filing fees and other charges for the filings required under the HSR Act or such other Antitrust Law or any FDI Law set forth on Section 7.01(b) of the failure by it Company Disclosure Letter or them to comply with or satisfy that are otherwise agreed in any material respect any covenant, condition or agreement writing to be complied applicable by the Company and Parent. (e) The parties may, as they deem advisable, designate any competitively sensitive materials provided to the other under Section 6.04(c) or any other section of this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials. (f) Without limiting the generality of Parent’s undertakings pursuant to Section 6.04(a), Parent acknowledges and agrees that its obligation to use reasonable best efforts to take, or cause to be taken, all reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary or satisfied by it advisable under applicable Law to consummate and make effective the Transactions, includes but is not limited to, as promptly as possible but subject to the other terms set forth in this AgreementSection 6.04, including the terms set forth in the proviso immediately below and the second to last sentence of this Section 6.04(f): proposing, negotiating, effecting, agreeing to or committing to, or executing any settlements, undertakings (affirmative or otherwise), consent decrees, stipulations or other agreements with any Governmental Entity obligating Parent or any of its Subsidiaries to: (i) sell, divest, license or otherwise convey or hold separate any asset (whether tangible or intangible) or business of the Company or any Subsidiary thereof or terminate any existing relationship, contractual right or obligation of the Company or any Subsidiary thereof, (ii) create any relationship, contractual right or obligation of the Company or any Subsidiary thereof, (iii) implement any limitations, prohibitions or restrictions affecting the business, operations or assets of the Company or any Subsidiary thereof, or (iv) litigate, contest, defend and appeal any Proceeding, whether judicial or administrative, challenging this Agreement or the Transactions contemplated hereby (each of the actions in the preceding clauses (i) – (iv), a “Remedial Action”); provided, however, that no such notification shall affect that, notwithstanding anything contained in this Agreement to the representationscontrary, warranties(A) for the avoidance of doubt, covenants neither Parent nor any of its Subsidiaries will be required to take or agreements effect (or agree to take or effect) any Remedial Action in respect of any of the parties product lines, rights, assets or properties (including Intellectual Property rights) of Parent or any Subsidiary thereof (excluding the conditions Company and its Subsidiaries) or that otherwise materially impact or effect the businesses and operations of Parent and its Subsidiaries (excluding the Company and its Subsidiaries), and (B) neither Parent nor any of its Subsidiaries (including, for the purpose of this clause, the Company and its Subsidiaries) will be required to take or effect (or agree to take or effect) any Remedial Action if such Remedial Action(s) would, in the obligations aggregate, be reasonably likely to either (x) result in a loss of revenue equal to or greater than five percent (5%) of the parties under total sales revenue of the Company and its Subsidiaries for the 12-month period ending December 31, 2023 as reflected in the most recent financial statements, or (y) have a material and adverse impact to Parent and its Subsidiaries, taken as a whole, in respect of the benefits (including synergy benefits) that Parent and its Subsidiaries expect to derive from the consummation of the Transactions and their ownership and operation of the businesses of the Company and its Subsidiaries. The Company shall not take or agree to, and shall not permit any Subsidiary to take or agree to, any Remedial Action without the prior written consent of Parent. Nothing in this AgreementSection 6.04 shall require any party (or Affiliate thereof) to take or agree to take any action with respect to its business or operations pursuant to this Section 6.04 unless the effectiveness of such agreement or action is conditioned upon the Closing. Parent and its Subsidiaries, on the one hand, and the Company and its Affiliates, on the other hand, also shall be obligated to defend, litigate or participate in the litigation of any Proceeding brought by or against any Governmental Entity in connection with obtaining any Authorization or Consent from any Governmental Entity in connection with the Transactions. (cg) With respect Parent shall not, and shall cause its Affiliates not to, enter into any merger, acquisition or similar transaction, or any agreement to securing effect any such transaction, for any business that competes with the Lender ConsentsCompany’s business, Buyer and Seller shall cooperate with each other and use all reasonable best efforts that will make it materially more difficult, or materially increase the time required, to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In obtain the event some expiration or all termination of the Lender Consents are not obtained, waiting period under any Antitrust Law or FDI Law applicable to the extent the Original Loan Amounts (as defined in the Financing Commitment)Transactions, as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In avoid the event commencement of litigation by any Governmental Entity under any Antitrust Law or FDI Law seeking the entry of any injunction or order that at any time after July 15, 1999, Seller reasonably believes that (A) some would materially delay or all prevent the consummation of the Lender Consents will not be obtained or waived or Transactions. (Bh) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able In addition to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as and without limiting any of the Closing Date parties’ respective obligations in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overagethis Section 6.04, the -40- 49 Lender Consent with respect to such Underlying Loan Company and the Company Board shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above take all action, including granting such approvals, necessary to ensure that no state takeover statute, “business combination,” “control share acquisition,” “fair price,” “moratorium” or similar Law is or becomes applicable to any Transaction or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) Agreement and (ii) aboveif any state takeover statute, “business combination,” “control share acquisition,” “fair price,” “moratorium” or similar Law becomes applicable to any Transaction or this Agreement, take all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount action necessary to pay at Closing all remaining amounts under ensure that the Underlying Loans in full, Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts otherwise to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence effect of such Franchise Feesstatute or regulation on the Transactions and this Agreement.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shalleach of the parties shall use reasonable best efforts: (i) use all reasonable best efforts to cooperate with one another in (Ax) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities any Governmental Authority of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including including, without limitation limitation, any required filings and consents filing under the HSR ActXxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and (By) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent)authorizations; (ii) use all reasonable best efforts (other than the payment of money that is not contractually required to obtainbe paid) to obtain in writing any consents required from third parties to effectuate the Merger, in writing, the such consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") be in form reasonably satisfactory to Seller and Buyer, provided however, that, without each of the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly)parties; and (iii) use all reasonable best efforts to take, or cause to be taken, all other action and do, or cause to be done, all other things necessary, proper or appropriate to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except. (b) Seller The Company and the Company Partnership shall give prompt notice to Parent Acquiror and BuyerAcquisition Sub, and Parent Acquiror and Buyer Acquisition Sub shall give prompt notice to Sellerthe Company and the Company Partnership, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, materiality becomes untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions contemplated by most expeditious manner practicable, the Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, subject the Merger or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of each Transaction Agreement and (v) to arrange for the financing contemplated by the Commitment Letter to be provided on substantially the terms and conditions specified in the case of Seller Commitment Letter. In connection with and without limiting the foregoing, the Company and the Company Board shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to the exercise Merger or any other Transaction or any Transaction Agreement, (ii) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction Agreement, take all action necessary to ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by each Transaction Agreement and otherwise to minimize the Seller Board effect of such statute or Special Committee prior to regulation on the Outside Date of its duties under applicable law; provided however, that nothing Merger and the other Transactions and (iii) cooperate with the arrangements for obtaining the Financing. Nothing in this Section 5.3 Agreement shall be deemed to require Parent any party to waive any substantial rights or Buyer agree to pay or commit to pay any money or other consideration substantial limitation on its operations or to incur dispose of any liability significant asset or other obligation (exceptcollection of assets. (b) Seller The Company shall give prompt notice to Parent and BuyerSub, and Parent and Buyer Sub shall give prompt notice to Sellerthe Company, of (i) if any representation or warranty made by it or them contained in this any Transaction Agreement to which it is a party that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this any Transaction Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this each Transaction Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner conditions set forth in Section 5.3(cthis Agreement (including, without limitation, those contained in Sections 6.03(b) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"c)), and each of the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions most expeditious manner practicable, the Merger and the other Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary Consents or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have vacated or reversed any decree, order or judgment entered by any court or other Governmental Entity that would restrain, prevent or delay the Closing and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall (i) use their reasonable best efforts to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (ii) if any state takeover statute or similar statute or regulation becomes applicable to this Agreement, use their reasonable best efforts to ensure that the Merger and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and the other Transactions. Parent will take all action necessary to cause Sub to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement. Subject to applicable Law relating to the exchange of information, subject the Company and Parent and their respective counsel shall (i) have the right to review in advance, and to the extent practicable each shall consult the other on, any filing made with, or written materials to be submitted to, any Governmental Entity in connection with the Merger and the other Transactions, (ii) promptly inform each other of any communication (or other correspondence or memoranda) received from, or given to, the U.S. Department of Justice, the U.S. Federal Trade Commission, or any other Governmental Antitrust Entity and (iii) furnish each other with copies of all correspondence, filings and written communications between them or their subsidiaries or affiliates, on the one hand, and any Governmental Entity or its respective staff, on the other hand, with respect to this Agreement and the Merger. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any discussion, telephone call or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the Merger or the other Transactions and to participate in the case of Seller preparation for such discussion, telephone call or meeting. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the exercise by other under this Section 6.03 as "Antitrust Counsel Only Material" (as defined in the Seller Board or Special Committee prior Confidentiality Agreement). Notwithstanding anything to the Outside Date of its duties under applicable law; provided however, that nothing contrary in this Section 5.3 6.03, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company and its Subsidiaries. (i) Without limiting the generality of the undertakings pursuant to this Section 6.03, the parties hereto shall require provide or cause to be provided as promptly as practicable to Governmental Entities with regulatory jurisdiction over enforcement of any applicable federal, state, local or foreign antitrust, competition, premerger notification or trade regulation law, regulation or order ("Antitrust Laws" and each such Governmental Entity, a "Governmental Antitrust Entity") information and documents requested by any Governmental Antitrust Entity or necessary, proper or advisable to permit consummation of the Transactions, including preparing and filing any notification and report form and related material required under the HSR Act and any additional Consents and filings under any Antitrust Laws as promptly as practicable following the date of this Agreement (but in no event more than five business days from the date hereof) and thereafter to respond as promptly as practicable to any request for additional information or documentary material that may be made under the HSR Act and any additional Consents and filings under any Antitrust Laws; (ii) the parties shall use their best efforts to take such actions as are necessary or advisable to obtain prompt approval of consummation of the Transactions by any Governmental Antitrust Entity; and (iii) the parties shall use their best efforts to resolve any objections and challenges, including by contest through litigation on the merits, negotiation or other action, that may be asserted by any Governmental Antitrust Entity with respect to the transaction contemplated by this Agreement under the HSR Act and any Antitrust Laws. (c) Notwithstanding anything in this Agreement to the contrary, in no event will Parent or Buyer Sub be obligated to pay propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture, to accept any operational restriction, or take any other action 45 that, in the reasonable judgment of Parent, could be expected to limit the right of Parent or the Surviving Corporation to own or operate all or any portion of their respective businesses or assets. With regard to any Governmental Antitrust Entity, neither the Company nor any Company Subsidiary (or any of their respective affiliates) shall, without Parent's prior written consent in Parent's sole discretion, discuss or commit to pay any money divestiture transaction, or other consideration discuss or commit to incur alter their businesses or commercial practices in any liability way, or other obligation (exceptotherwise take or commit to take any action that limits the Parent's freedom of action with respect to, or the Parent's ability to retain any of the businesses, product lines or assets of, the Surviving Corporation or otherwise receive the full benefits of this Agreement. (bd) Seller The Company shall give prompt notice to Parent and BuyerParent, and Parent and Buyer or Sub shall give prompt notice to Sellerthe Company, of (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (ce) With respect to securing As soon as reasonably practicable following the Lender Consentsexecution of this Agreement, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing DateParent, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein its capacity as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation sole stockholder of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may beSub, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsadopt this Agreement. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) making all necessary filings, and thereafter making any other required submissions, with respect to this Agreement and the Merger required under the HSR Act and any related governmental request thereunder and under any other applicable law, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement, the Merger or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, (v) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement and (vi) to arrange for the Financing contemplated by the Commitment Letter to be provided on substantially the terms and conditions specified in the Commitment Letter. The Company, Parent and Purchaser shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if requested, to accept all reasonable additions, deletions or changes suggested in connection therewith. The Company, Parent and Purchaser shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable law (including all information required to be included in the Proxy Statement and the Schedule 13E-3) in connection with the transactions contemplated by this Agreement. In connection with and without limiting the foregoing, subject in the case of Seller to Company and the exercise by Company Board shall cooperate with the Seller Board or Special Committee prior to arrangements for obtaining the Outside Date of its duties under applicable law; provided however, that nothing Financing. Nothing in this Section 5.3 Agreement shall be deemed to require Parent any party to waive any substantial rights or Buyer agree to pay or commit to pay any money or other consideration substantial limitation on its operations or to incur dispose of any liability significant asset or other obligation (exceptcollection of assets. (b) Seller The Company shall give prompt notice to Parent and BuyerPurchaser, and Parent and Buyer Purchaser shall give prompt notice to Sellerthe Company, of (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, Sub and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required Company agrees to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate necessary to fulfill all conditions applicable to such party pursuant to this Agreement and to consummate and make effective effective, in the most expeditious manner practicable, the Merger and the other transaction contemplated by this Agreement, including using reasonable best efforts with respect to (i) obtaining all necessary actions or non-actions, waivers, Consents, qualifications and approvals from Governmental Entities and making all necessary registrations, filings and notifications and taking all reasonable steps as may be necessary to obtain an approval, clearance, non-action letter, waiver or exemption from any Governmental Entity (including under the HSR Act); (ii) obtaining all necessary consents, qualifications, approvals, waivers or exemptions from non-governmental third parties; (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iv) executing and delivering any additional documents or instruments necessary to consummate the Merger and to carry out this Agreement. For the avoidance of doubt, the Company and its Representatives shall not be prohibited under this Section 6.03 from effecting an Adverse Recommendation Change in accordance with Section 5.04(b) and 5.04(c); provided that any such Adverse Recommendation Change shall not affect the obligations of the Company under this Agreement, including under this Section 6.03. (b) Without limiting the foregoing, each of the Company, Parent and Merger Sub shall use its reasonable best efforts to make as promptly as practicable (and in any event within fifteen (15) Business Days after the date hereof) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Merger and as promptly as practicable additionally to make any other required submissions under the HSR Act that the Company or Parent determines should be made, in each case with respect to the Merger, and take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. (c) The Company, Parent and Merger Sub shall cooperate with each other in connection with the making of all such filings, including furnishing to the others such information and assistance as a party may reasonably request in connection with its preparation of any filing or submission that is necessary or allowable under applicable competition or other Law or requested by any competition authorities. The Company, Parent and Merger Sub shall use their respective reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Law (including all information required to be included in the Company’s disclosure documents) in connection with the Merger. To the extent permitted by applicable Law or any relevant Governmental Entity, and subject to all applicable privileges, including the attorney client privilege, each party hereto shall (i) give the other parties hereto prompt notice upon obtaining knowledge of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to the Merger, (ii) keep the other parties hereto informed as to the status of any such request, inquiry, investigation, action or legal proceeding, (iii) promptly inform the other parties hereto of any material communication to or from the U.S. Federal Trade Commission, the U.S. Department of Justice, any foreign competition authority or any other Governmental Entity regarding the Merger and (iv) consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other parties in advance, any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto, including reasonable access to any materials submitted in connection with any proceedings under or relating to the HSR Act or any other applicable Federal, state or foreign competition, merger control, antitrust or similar Law, including any proceeding under 16 C.F.R. § 803.20. In addition, except as may be prohibited by any Governmental Entity or by any Law, each party hereto will permit authorized Representatives of the other parties to be present at each meeting or telephone conference with representatives of any Governmental Entity relating to any such material request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with any such request, inquiry, investigation, action or proceeding, except for those of a purely ministerial nature. (d) Any party may, as it deems advisable and necessary, designate any competitively sensitive material provided to the other parties under this section as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient, unless express written permission is obtained in advance from the source of such materials. (e) Without limiting any other obligations of Parent and the Company hereunder, Parent and the Company shall respond to and seek to resolve as promptly as practicable any objections asserted by any Governmental Entity with respect to the Merger or any other transaction contemplated by this Agreement, shall defend any action, suit, dispute, litigation, proceeding, hearing, arbitration or claim by or before any Governmental Entity or any arbitrator or arbitration panel, whether judicial or administrative, whether brought by private parties or Governmental Entities or officials, challenging this Agreement or the consummation of the Merger or any other transaction contemplated by this Agreement, and use reasonable best efforts to take any and all other such steps necessary to avoid or eliminate each and every impediment and obtain all consents required from any Governmental Entity, in each case so as to enable the Effective Time to occur as soon as practicable and in any event no later than the Walk-Away Date. The required actions by Parent hereunder shall include acceptance by Parent of (i) any and all divestitures of the businesses or assets of it or its subsidiaries or affiliates or of the Company or any of the Company Subsidiaries, (ii) any agreement to hold any assets of Parent or its subsidiaries or affiliates or of the Company or any of the Company Subsidiaries separate, (iii) any agreement to license any portion of the business of Parent or its subsidiaries or affiliates or of the Company or any of the Company Subsidiaries, and (iv) any limitation to or modification of any of the businesses, services or operations of Parent or its subsidiaries or affiliates or of the Company or any of the Company Subsidiaries, in each case as may be required by any applicable Governmental Entity or any arbitrator or arbitration panel in order to obtain approval for the Merger and the other transactions contemplated by this Agreement, and in each case Parent shall cause its subsidiaries or affiliates to effect such actions. (f) Without limiting the generality of the foregoing, Parent and Merger Sub shall not, and shall cause the Equity Providers and their respective controlled affiliates not to, enter into any transaction that is subject in the case of Seller to the exercise by HSR Act if such transaction would reasonably be expected to materially delay the Seller Board or Special Committee prior to termination of the Outside Date of its duties applicable waiting period under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptthe HSR Act for the Merger. (bg) Seller shall give prompt notice to Parent and BuyerEach of the Company, on the one hand, and Parent and Buyer shall give prompt notice Merger Sub, on the other hand, shall, to Sellerthe extent permitted by applicable Law and any relevant Governmental Entity and subject to all privileges (including the attorney client privilege), promptly (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect and in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or event within two (ii2) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (cBusiness Days) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update notify the other on its progress at the request of the otherparty in writing of: (i) In the event some receipt by such person of any notice or all other communication from any person alleging that the consent of such person is or may be required in connection with the Lender Consents are not obtainedMerger and a copy of such notice or communication, if the failure to obtain such consent would be material to the extent the Original Loan Amounts Company (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed notices and communications received by the Company) or Parent or Merger Sub (with respect to have been obtainednotices and communications received by Parent or Merger Sub); (ii) In the event that at receipt by such person of any time after July 15, 1999, Seller reasonably believes that (A) some material notice or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment other communication from any Governmental Entity in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date connection with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment AmountsMerger; (iii) In the event any actions, suits, claims, investigations or proceedings commenced or, to such person’s knowledge, threatened against, relating to or involving or otherwise affecting such person or any of its subsidiaries that, following if pending on the operation date of clauses (i) and (ii) abovethis Agreement, all of the Lender Consents would have not been obtained or deemed waived, Seller may, at its sole option, agree required to have been disclosed by such person pursuant to any of such person’s representations and warranties contained herein, or that relate to such person’s ability to consummate the Common Merger Consideration reduced by Merger; or (iv) any inaccuracy of any representation or warranty of such person contained in this Agreement at any time during the aggregate amount necessary term hereof that would reasonably be likely to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive cause any of the Lender Consents. (d) Sellerconditions set forth in Article VII not to be satisfied; provided, Buyer and Parent that, in any event, the failure to deliver any such notice shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or not affect any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and conditions set forth in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsArticle VII. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties hereto shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, in the transactions most expeditious manner practicable, the Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waivers, consents and approvals from Governmental Entities and the making of all necessary or advisable registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary or advisable consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or any other Transaction Document or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of the Transaction Documents. In connection with and without limiting the foregoing, Domtar shall (i) take all action necessary to ensure that the take-over provisions of the Canadian Securities Legislation and the state takeover statutes or similar statutes or regulations are not and do not become applicable to any Transaction or this Agreement or any other Transaction Document and (ii) if the Canadian Securities Legislation or any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement or any other Transaction Document, take all action necessary to ensure that the Arrangement and the other Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement, subject in the case Transaction Documents. Each of Seller to the exercise by parties hereto shall keep the Seller Board or Special Committee prior to the Outside Date other parties reasonably informed of its duties under applicable law; provided however, that nothing progress in this Section 5.3 shall require Parent obtaining any necessary or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (exceptadvisable Consents and Governmental Approvals. (b) Seller Domtar shall give prompt notice to Parent Weyerhaeuser and BuyerNewco, and Parent Weyerhaeuser and Buyer Newco shall give prompt notice to Seller, Domtar of (i) if any representation or warranty made by it or them contained in this Agreement any Transaction Document that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes materiality becoming untrue or incorrect inaccurate in any respect or any such representation or warranty that is not so qualified becomes becoming untrue or incorrect inaccurate in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreementany Transaction Document; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreementthe Transaction Documents. (c) With respect to securing the Lender Consents, Buyer and Seller Nothing in Section 6.07(a) shall cooperate with each other and use all reasonable best efforts to secure each require any of the Lender Consents, including taking the actions set forth in Section 5.3(d) parties or any of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: their respective subsidiaries to (i) In the event some pay any consideration to any third party from whom any consents, approvals, or all waivers are requested, other than filing fees paid to Governmental Entities, or (ii) dispose of any of its assets or to limit its freedom of action with respect to any of its businesses, or to consent to any disposition of any assets or limits on its freedom of action with respect to any of its businesses, or to commit or agree to any of the Lender Consents are not obtainedforegoing in order to obtain any consents, approvals, permits or authorizations or to remove any impediments to the extent Transactions relating to the Original Loan Amounts Competition Act, the HSR Act, the Investment Canada Act or other antitrust, competition or pre-merger notification, trade regulation law, regulation or order (as defined “Review Laws”) or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding relating to Review Laws, other than dispositions, limitations, consents or commitments that individually or in the Financing Commitment)aggregate, have not had and would not reasonably be expected to have a Material Adverse Effect on the Newco Business and Domtar Business, taken as such Original Loan Amount a whole. (d) Each of Domtar, Weyerhaeuser and the Spinco Parties shall (i) file or cause to be filed as promptly as practicable with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) all notification and report forms that may be increased required for the Transactions and any supplemental information requested in connection therewith pursuant to the terms of the Financing CommitmentHSR Act, exceed $454,600,000 less the amount, if any, by which the proceeds and (ii) make such other filings as promptly as practicable as are necessary under the Financing Commitment are reduced as a result of Review Laws and shall promptly provide any defect supplemental information requested by applicable Governmental Entities relating thereto. No party shall include in any such filing, notification or loss report form referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained immediately preceding sentence a request for early termination or deemed waived, Seller may, at its sole option, agree to have acceleration of any applicable waiting periods without the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any prior written consent of the Lender Consents. (d) Sellerother parties. Any such filing, Buyer notification and Parent report form and supplemental information shall use all be in substantial compliance with the requirements of the HSR Act and other Review Laws. Each of Domtar, Weyerhaeuser and the Spinco Parties shall furnish to the other such necessary information and reasonable best efforts to minimize (i) assistance as the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) may reasonably request in connection with obtaining consent their preparation of any filing or submission that is necessary under the HSR Act and other Review Laws. Each of Domtar, Weyerhaeuser and the Spinco Parties shall keep each other apprised of the franchisors (including status of any communications with, and any inquiries or requests for additional information from, the Franchise Consents) under each of FTC, the Seller Franchise Agreements with respect to any Seller Property (collectively DOJ and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary applicable Governmental Entity and shall comply with any such inquiry or request as promptly as practicable. Domtar, Weyerhaeuser and the Spinco Parties shall not have any substantive contact with any Governmental Entity in cash respect of any filing or proceeding contemplated by this Section unless it consults with the other consideration (including by making commitments or incurring any liability or obligation) parties in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts")advance and, in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in extent permitted by such Governmental Entity, gives the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share other party or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given parties the opportunity to attend and participate in all such meetingsparticipate. (e) For purposes Without limiting the generality of the last two sentences first sentence of Section 5.3(d6.07(a), no Franchise Fees that are paid or payable each of Weyerhaeuser and Domtar shall use its reasonable best efforts to cooperate with Spinco and Newco in connection with the financing contemplated by Parentthe New Debt Commitment Letter, Buyer or Lessee shall including using (and causing its subsidiaries to use) reasonable best efforts to satisfy all conditions precedent to be included satisfied by the New Spinco Parties in determining the dollar thresholds in such sentences unless Seller shall have been consulted by ParentNew Debt Commitment Letter, Buyer or Lessee, as applicable, prior providing information to and permitting the financing sources and their representatives access to the incurrence Newco Business and the Domtar Business, respectively, participating in meetings with prospective investors and participating (and permitting members of such Franchise Feesits senior management to participate) in bank meetings in connection with the financing, participating in meetings with rating agencies, participating in drafting sessions related to the offering materials for the debt financing contemplated by the New Debt Commitment Letter, causing the present and former independent accountants for Weyerhaeuser and Domtar, respectively, to participate in drafting sessions related to the offering materials for the debt financing contemplated by the New Debt Commitment Letter and making work papers available to the respective parties, the financing sources and their respective representatives.

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things necessary, proper or appropriate advisable to consummate and make effective effective, as promptly as practicable and in any event by or before the transactions Outside Date, the Offer, the Merger and the other Transactions, including (i) the obtaining of all necessary or advisable actions or non-actions, waiting period expirations or terminations, waivers and consents from, the making of all necessary registrations, declarations and filings with and the taking of all reasonable steps as may be necessary to avoid a Proceeding by any Governmental Entity with respect to this Agreement or the Transactions and (ii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In connection with and without limiting the foregoing, the Company and the Company Board shall (A) take all action necessary to ensure that no Takeover Law or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (B) if any Takeover Law or similar statute or regulation becomes applicable to any Transaction or this Agreement, to use its reasonable best efforts take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement, subject in Agreement and otherwise to minimize the case effect of Seller to such statute or regulation on the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent Transactions and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of the failure by it or them to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. (cb) With respect Parent and the Company shall, in consultation and cooperation with the other, each file, or cause their ultimate parent entities as that term is defined in the HSR Act to securing file, with the Lender ConsentsUnited States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each if any, required under the HSR Act for the Offer, the Merger or any of the Lender Consents, including taking other Transactions as promptly as practicable (but in no event later than fifteen business days after the actions set forth in Section 5.3(d) date of this Agreement (unless Parent and the Seller's Disclosure ScheduleCompany mutually agree otherwise)). Each party of Parent and the Company shall update the other on its progress at the request of the other: (i) In furnish to the event some other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or all submission which is necessary under the HSR Act, (ii) give the other party reasonable prior notice of the Lender Consents are not obtainedany written filings or submissions and, to the extent reasonably practicable, of any communication with, and any inquiries or requests for additional information from, the Original Loan Amounts FTC, the DOJ and any other Governmental Entity regarding the Offer, the Merger or any of the other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (as defined iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any meeting in person with any Governmental Entity in respect of the Offer, the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting, (C) in the Financing Commitment), as such Original Loan Amount may be increased pursuant to event one party is prohibited by applicable Law or by the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect applicable Governmental Entity from participating in or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (attending any such loanmeeting, an "Underlying Loan") which have not been received and any prepayment penalty keep such party apprised with respect thereto. To , (D) cooperate in the extent an Underlying Loan filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement, the Offer, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, correspondence and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any related prepayment penalty will be paid as Governmental Entity or members of any Governmental Entity’s staff, on the Closing Date with the proceeds of a Financing Overageother hand, the Lender Consent with respect to such Underlying Loan shall be deemed this Agreement, the Offer, the Merger and the other Transactions and (iv) if advisable, comply with any inquiry or request from the FTC, the DOJ or any other Governmental Entity as promptly as reasonably practicable. Notwithstanding the foregoing or any other provision of this Agreement to have been obtained; (ii) In the event that at any time after July 15contrary, 1999Parent shall, Seller reasonably believes that (A) some or all on behalf of the Lender Consents will not be obtained parties, control and make the final determination as to the appropriate strategy relating to any filing or waived or (B) submission which is necessary under the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties)HSR Act, Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent including with respect to such Underlying Loan shall be deemed any filings, notifications, submissions and communications with or to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender ConsentsGovernmental Entity. (dc) SellerIn furtherance and not in limitation of the foregoing, Buyer Parent and Parent shall use Merger Sub agree to take any and all reasonable best efforts steps necessary to minimize avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under the HSR Act that may be required by any Governmental Entity, including committing to and effecting, by consent decree, hold separate orders, trust, or otherwise, (i) the amounts sale, license, holding separate or other disposition of so-called Property Improvement Plan costs and termination fees paid assets or payable by Seller, Seller Partnership businesses of Parent or the Company or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregatetheir respective subsidiaries, "Franchise Fees") and (ii) terminating, relinquishing, modifying, or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Parent or Company or their respective subsidiaries and (iii) creating any relationships, ventures, contractual rights, obligations or other arrangements of Parent or Company or their respective subsidiaries (each a “Remedial Action”); provided that none of Parent, Merger Sub or the amounts paid Company shall be obligated to agree to, commit or effect, any Remedial Action unless such Remedial Action is conditioned upon, or will occur subsequent to, consummation of the Transactions; and provided, further, that in no event shall Parent or Merger Sub be required to be paid by Selleroffer, Seller Partnership agree to, commit or effect, any Remedial Action with respect to, or other disposition of or restriction on, any product listed on Section 6.02(c) of the Company Disclosure Letter. Notwithstanding the foregoing and any other provision of this Agreement to the contrary, in no event shall Parent, Merger Sub, or any other Seller Subsidiary of their respective Subsidiaries be obligated to litigate or participate in cash the litigation of any action, whether judicial or other consideration (including administrative, brought by making commitments any Governmental Entity challenging or incurring any liability seeking to restrain, prohibit or obligation) in connection with obtaining place conditions on the Ground Lessor Consents (consummation of the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000Offer, the aggregate cash consideration payable to Merger or the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetingsother Transactions. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.

Reasonable Best Efforts; Notification. (a) Subject to the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities Each of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually has agreed by Seller and Parent); (ii) to use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all other action reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things reasonably necessary, proper or appropriate advisable to consummate and make effective the transactions contemplated by this Agreementeffective, subject in the case most expeditious manner practicable, the Merger, including • identifying and obtaining all necessary actions, waivers, consents and approvals from governmental entities and making all necessary registrations (including filings with governmental entities, if any) and taking all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any governmental entity, • obtaining all necessary consents, approvals and waivers from third parties, • with certain exceptions, defending any lawsuits or other legal proceedings challenging the Merger Agree- ment or the consummation of Seller the Merger, including, when reasonable, seeking to have any stay or temporary restraining order entered by any court or other governmental entity vacated or reversed, and • executing and delivering any additional instruments necessary to consummate the exercise by Merger and to fully carry out the Seller Board purposes of the Merger Agreement. We and our subsidiaries are not obligated to prepay or Special Committee prior to redeem any debt, amend or waive the Outside Date provisions of its duties under applicable law; provided howeverany contract, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money consent or other consideration similar fees or to incur payments, or divest any liability assets or other obligation (except (b) Seller shall give prompt notice to Parent and Buyerenter into commitments regarding the conduct of its business or licensing of technology or know-how, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made by it or them contained in this Agreement that each case unless such action is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effect, as conditioned upon the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) consummation of the failure by it or them Merger. FIS and we have agreed to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement. promptly make (c) With respect to securing the Lender Consents, Buyer and Seller shall cooperate with each other in making) all necessary registrations, filings and use all reasonable best efforts to secure each of the Lender Consents, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent submissions with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, Agreement and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.under

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and conditions herein provided, Seller, Parent and Buyer shall: (i) use all reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior subject to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties conditions set forth in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all its reasonable best efforts to take, or cause to be taken, all reasonable actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Merger, including (i) the obtaining of all Consents and the making of all Registrations specified in Sections 3.3(c) and 4.3(b) and the taking of all reasonable steps as may be necessary to obtain such Consents and to make such Registrations, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger, including, seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement; provided, however, that the obligations set forth in this sentence shall not be deemed to have been breached as a result of actions by the Company expressly permitted under Section 6.3. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to prepay or redeem debt (or notes), amend or waive the provisions of any Contract, or to pay any consent or similar fees or payments unless such action is conditioned upon the consummation of the Merger. Without limiting the foregoing, Parent and its Subsidiaries shall not take or agree to take any action with respect to any acquisition of businesses or assets which would reasonably be expected to delay or prevent consummation of the Merger. (b) Each of Parent and the Company undertakes and agrees to file as soon as practicable, and in any event prior to seven days after the date hereof, a Notification and Report Form under the HSR Act with the United States Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”). Each of Parent and the Company shall (i) respond as promptly as practicable to any inquiries received from the FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from any State Attorney General or other Governmental Entity in connection with antitrust matters, and (ii) not extend any waiting period under the HSR Act or enter into any agreement with the FTC or the Antitrust Division not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other parties hereto. Parent shall commit to take all steps which it is capable of taking to avoid or eliminate impediments under any antitrust, competition, or trade regulation law that may be asserted by the FTC, the Antitrust Division, any State Attorney General or any other Governmental Entity with respect to the Merger so as to enable the consummation thereof as promptly as reasonably practicable and shall defend through litigation on the merits any claim asserted in any court by any party, including appeals. Without limiting the foregoing, Parent shall propose, negotiate, commit to and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of Parent or, effective as of the Effective Time, the Surviving Corporation, or their respective Subsidiaries or otherwise commit to take any action which it is capable of taking, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of Parent, the Surviving Corporation or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the consummation of the Merger. At the request of Parent, the Company shall agree to divest, hold separate or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services, or assets of the Company or any of its Subsidiaries, provided that any such action shall be conditioned upon the consummation of the Merger and the transactions contemplated hereby. Each party shall (i) promptly notify the other party of any written communication to that party from the FTC, the Antitrust Division, any State Attorney General or any other Governmental Entity and, subject to applicable law, permit the other party to review in advance any proposed written communication to any of the foregoing; (ii) not agree to participate in any substantive meeting or discussion with any governmental authority in respect of any filings, investigation or inquiry concerning this Agreement or the Merger unless it consults with the other party in advance and, to the extent permitted by such governmental authority, gives the other party the opportunity to attend and participate thereat; and (iii) furnish the other party with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between them and their Affiliates and their respective representatives on the one hand, and any government or regulatory authority or members or their respective staffs on the other hand, with respect to this Agreement and the Merger. (c) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all other things necessary, proper or appropriate advisable that are within Parent’s and Sub’s control to consummate and make effective the transactions contemplated by this Agreement, subject in the case of Seller to the exercise by the Seller Board or Special Committee prior to the Outside Date of its duties under applicable law; provided however, that nothing in this Section 5.3 shall require Parent or Buyer to pay or commit to pay any money or other consideration or to incur any liability or other obligation (except (b) Seller shall give prompt notice to Parent and Buyer, and Parent and Buyer shall give prompt notice to Seller, (i) if any representation or warranty made maintain in effect the Financing Commitments and to satisfy on a timely basis all the conditions to obtaining the Financing set forth therein (including by it or them contained in this Agreement that is qualified as consummating the equity financing pursuant to Seller Material Adverse Effectthe terms and conditions of the Equity Commitment Letter), Parent Material Adverse Effect or Buyer Material Adverse Effect, as the case may be, becomes untrue or incorrect in any respect or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or (ii) of enter into definitive financing agreements with respect to the failure Debt Financing as contemplated by it the Debt Commitment Letter (the “Financing Agreements”), so that the Financing Agreements are in effect at or them prior to comply with Closing and (iii) consummate the Financing at or satisfy in prior to Closing. Parent and Sub shall not permit any material respect any covenant, condition amendment or agreement modification to be complied made to, or any waiver of any material provision or remedy under, the Financing Commitments without first consulting with the Company, and will obtain the Company’s prior written consent (which consent shall not be unreasonably withheld or satisfied by it under this Agreement; provideddelayed) prior to agreeing to any such amendment, however, modification or waiver that no such notification shall affect would materially increase the representations, warranties, covenants or agreements of the parties or likelihood that the conditions to funding would not be satisfied. Parent and Sub will give the obligations Company prompt notice of any material breaches by any party of the parties under this Agreement. Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed of the status of the financing process relating thereto and shall provide from time to time, such information as the Company may reasonably request in respect thereof. The Company shall provide all reasonable cooperation as may be reasonably requested by Parent in connection with the Debt Financing or any substitute or replacement debt financing, including (ci) With respect to securing the Lender Consentsupon reasonable advance notice by Parent, Buyer participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, “road shows” and Seller shall cooperate sessions with each other and use all rating agencies, (ii) using reasonable best efforts to secure furnish to Parent business projections, audited financial statements, unaudited financial statements (which shall have been reviewed by Accountants as provided in SAS No. 100 (subject to exceptions customary for a Rule 144A offering), pro forma statements and other financial data and pertinent information about the Company and its Subsidiaries, in each case of the Lender Consentstype and form customarily included in offering memoranda, including taking the actions set forth in Section 5.3(d) of the Seller's Disclosure Schedule. Each party shall update the other on its progress at the request of the other: (i) In the event some or all of the Lender Consents are not obtainedprivate placement memoranda, prospectuses and similar documents, including, to the extent available, unaudited financial information relating to sales, EBITDA and comparable store sales and, to the Original Loan Amounts extent such information would be available at the time requested, unaudited consolidated balance sheets and related statements of income and cash flows of the Company and its Subsidiaries for the 52 weeks and 13 weeks ended December 30, 2006 (as defined in collectively, the Financing Commitment“Required Financial Information”), as which Required Financial Information shall be Compliant, (iii) reasonably facilitating the pledging of collateral, effective at the Effective Time, (iv) the execution and delivery of loan agreements and related documents, effective at the Effective Time, (v) using reasonable best efforts to obtain the written consent of the independent accountants for the Company (“Accountants”) to permit the use of the Company’s audited financial statements and the Accountant’s audit report thereon and the Accountant’s report on the Company’s internal control over financial reporting in connection with the Financing, including any registration statement filed in connection therewith, and using reasonable best efforts to cause the Accountants to provide a customary comfort letter (including customary “negative assurances”) in accordance with SAS 72 (subject to any requirements set forth in SAS 72) for any such Original Loan Amount may offering, which comfort letter shall be increased pursuant reasonably satisfactory to Parent’s lenders, (vi) executing any reasonably necessary management representation letters to the terms of Accountants to issue reports with respect to the Financing Commitmentfinancial statements to be included in any offering documents and in any updated filings or amendments thereto, exceed $454,600,000 less (vii) using reasonable best efforts to cause the amount, if any, by which current outside legal counsel for the proceeds under the Financing Commitment are reduced as Company to deliver a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of legal opinion at the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan matters concerning the Company and its subsidiaries as are customary for such transactions, which legal opinion shall be deemed reasonably satisfactory to have been obtained; Parent’s lenders and (iiviii) In allowing Parent and its lender’s representatives such access as may be reasonably necessary for their due diligence, including without limitation by letting such lender’s representatives inspect the event that at any time after July 15, 1999, Seller reasonably believes that (A) some or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able Company’s records and premises and to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date consult with the proceeds of any such financingCompany’s officers, together employees, attorneys, and agents with any Financing Overage, the -40- 49 Lender Consent financial and operating data and other information with respect to the Company such Underlying Loan lenders reasonably request; provided that, the Company shall not be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to provide any such assistance which would interfere unreasonably with the ongoing business or operations of the Company and its Subsidiaries and provided, further that, without the Company’s consent, which shall not unreasonably be paid pursuant withheld, in no event shall any property level due diligence involve environmental tests or assessments more intrusive to clause (i) above or this clause (ii) such properties than those tests and assessments necessary to obtain Lender Consents that exceed prepare Phase I reports. Parent shall promptly, upon request by the amount of principal and accrued interest on Company, reimburse the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use Company for all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation out of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced pocket third party costs incurred by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive Company or any of the Lender Consents. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) its Subsidiaries in connection with obtaining consent such cooperation. Parent and Sub shall, on a joint and several basis, indemnify and hold harmless, the Company, its Subsidiaries, and their directors, officers, employees and representatives for and against any losses, damages and claims which any of them may suffer resulting from or arising out of the franchisors (including the Franchise Consents) under each arrangement of the Seller Franchise Agreements with respect to Debt Financing and any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) information used in connection with obtaining the Ground Lessor Consents therewith (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and other than information provided by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicable, prior to the incurrence of such Franchise Fees.the

Reasonable Best Efforts; Notification. (a) Subject to Upon the terms and subject to the conditions herein providedset forth in this Agreement, Sellereach of the parties shall, Parent and Buyer shall: (i) shall cause their respective subsidiaries to cooperate in good faith and use all its reasonable best efforts to cooperate with one another in (A) determining which filings are required to be made prior to the Effective Time with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Time from, governmental or regulatory authorities of the United States, the several states and foreign jurisdictions and any third parties in connection with the execution and delivery of this Agreement, and the consummation of the transactions contemplated hereby, including without limitation any required filings and consents under the HSR Act, and (B) timely making all such filings and timely seeking all such consents, approvals, permits and authorizations (the parties acknowledge that all consents under each of the Seller Franchise Agreements shall comply with the provisions of Section 5.3(a) of the Buyer Disclosure Letter unless otherwise mutually agreed by Seller and Parent); (ii) use all reasonable best efforts to obtain, in writing, the consents listed in Section 5.3(a)(1) of the Seller Disclosure Letter (the "Lender Consents") in the manner set forth in Section 5.3(c) and the consents listed in Section 5.3(a)(3) of the Seller Disclosure Letter (the "Ground Lessor Consents"), and the parties shall use all reasonable best efforts to cause Lessee to obtain, in writing, the consents listed in Section 5.3(a)(2) of the Seller Disclosure Letter (the "Franchise Consents") in the manner set forth in Section 5.3(d) (such Lender Consents, Ground Lessor Consents and Franchise Consents referred to herein collectively as the "Required Consents") in form reasonably satisfactory to Seller and Buyer, provided however, that, without the prior written consent of Parent, neither Seller, the Seller Partnership nor any other Seller Subsidiary shall pay any cash or other consideration, make any commitments or incur any liability or other obligation except (x) in the case of obtaining Lender Consents and consents under the Seller Franchise Agreements, as set forth in clause (y) below and Sections 5.3(c) and 5.3(d), (y) in the case of obtaining Ground Lessor Consents and Lender Consents, in an aggregate amount of $1,500,000 or less for the payment of all Ground Lessor Amounts and Prepayment Amounts (provided that such amount may exceed $1,500,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly) and (z) for all other consents required to effect the Transactions, in an aggregate amount of $100,000 or less (provided that such amount may exceed $100,000 if the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger is reduced by the aggregate amount of such excess, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, is reduced accordingly); and (iii) use all reasonable best efforts to promptly take, or cause to be taken, all other action actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all other things reasonably necessary, proper or appropriate advisable to consummate and make effective the transactions contemplated by this Agreementeffective, subject as promptly as reasonably practicable, and in the case of Seller to the exercise by the Seller Board or Special Committee any event prior to the Outside Date Date, the Merger and the other Transactions, including (i) the obtaining of all necessary actions or non-actions, waivers and Consents from, the making of all necessary registrations, declarations and filings with any Governmental Entity with respect to this Agreement or the Transactions, (ii) the defending or contesting of any Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions and to fully carry out the purposes of this Agreement. In addition and without limiting the foregoing, the Company and the Company Board shall (I) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to any Transaction or this Agreement and (II) if any state takeover statute or similar statute or regulation becomes applicable to any Transaction or this Agreement, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Transactions and this Agreement. In addition and without limiting the foregoing, Parent shall not, and shall cause its duties under applicable law; provided howeveraffiliates not to, effect or agree to any business combination (whether structured as a merger, business combination, tender offer, exchange offer or similar transaction) or the acquisition of any assets, licenses, rights, product lines, operations or businesses of any Person that nothing would reasonably be expected to prevent or materially delay the consummation of the Transactions or make materially more difficult the satisfaction of the conditions set forth in Sections 6.01(a) or (b). Nothing in this Section 5.3 5.03 will apply to or restrict communications or other actions by Parent, any subsidiary of Parent, the Company or any Company Subsidiary with or with respect to Governmental Entities in connection with their respective businesses in the ordinary course of business. Notwithstanding anything in this Agreement to the contrary, the parties agree that Parent, Merger Sub or any other subsidiary of Parent shall require not be required to: (A) agree to conditions imposed by any Governmental Entity or propose, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of assets or businesses of the Company, any of the Company Subsidiaries, Parent or Buyer to pay any subsidiary of Parent, (B) accept any operational restrictions, or otherwise propose, negotiate, take or commit to pay take actions that limit any money of the Company’s or the Company Subsidiaries’ freedom of action with respect to, or Parent’s ability to retain or freely operate, any of the assets, properties, licenses, rights, operations or businesses of the Company or any of the Company Subsidiaries, (C) undertake or enter into agreements with any Governmental Entity or agree to the entry of an order by any Governmental Entity, (D) commit to terminate, amend or replace any existing relationships and contractual rights and obligations of the Parent, the Company, the Surviving Corporation or any other subsidiary of Parent or the Company, (E) terminate any relevant venture or other consideration arrangement of the Parent, the Company, the Surviving Corporation or any subsidiary of Parent or the Surviving Corporation, or (F) effectuate any other change or restructuring of the Parent, the Company, the Surviving Corporation or any subsidiary of Parent or the Company. The Company shall not, and shall cause the Company Subsidiaries not to, take any of the foregoing actions in clauses (A) through (F) with respect to incur the Company or any liability Company Subsidiary unless consented to in writing by Parent, provided that the Company shall, and shall cause each Company Subsidiary to, undertake such actions if requested by Parent if the effectiveness of such action is conditioned upon the occurrence of the Closing. Notwithstanding anything in this Agreement to the contrary, neither the Company, Parent or other obligation (exceptMerger Sub shall be required to commit to or agree with any Governmental Entity to any amendments or modifications to any of the terms of this Agreement. (b) Seller shall give prompt notice to Without limiting the generality of the parties’ obligations under Section 5.03(a), and in furtherance thereof, Parent and Buyerthe Company shall, in consultation and Parent and Buyer shall give prompt notice to Sellercooperation with the other, (i) if file, within fifteen (15) business days after the date of this Agreement, with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the Notification and Report form, under the HSR Act for the Merger or any representation of the other Transactions and (ii) file, within fifteen (15) business days after the date of this Agreement, draft or warranty made final form notifications, filings or briefing papers as required by or under any Foreign Merger Control Law. Each of Parent and the Company will cause all documents that it is responsible to file to comply substantially with the requirements of the HSR Act or them contained in this Agreement that is qualified as to Seller Material Adverse Effect, Parent Material Adverse Effect or Buyer Material Adverse Effectthe applicable Foreign Merger Control Law, as the case may be, becomes untrue . Each of Parent and the Company shall (i) promptly furnish to the other party such necessary information and reasonable assistance as the other party may request in connection with its preparation of any filing or incorrect in any respect submission which is necessary under the HSR Act or any such representation or warranty that is not so qualified becomes untrue or incorrect in any material respect or Foreign Merger Control Law, (ii) give the other party reasonable prior notice of any such filings or submissions and, to the extent reasonably practicable, of any material communication with, and any inquiries or requests for additional information from, the FTC, the DOJ and any other Governmental Entity regarding the Merger or any of the failure other Transactions, and permit the other party to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other party in connection with, any such filings, submissions, communications, inquiries or requests, (iii) unless prohibited by applicable Law or by the applicable Governmental Entity, and to the extent reasonably practicable, (A) not participate in or attend any substantive meeting, or engage in any substantive conversation, with any Governmental Entity in respect of the Merger or any of the other Transactions without the other party, (B) give the other party reasonable prior notice of any such meeting or conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, (D) cooperate with one another in the filing of, and consider the views of one another in connection with the form and content of, any substantive memoranda, white papers, filings, material correspondence or other material written communications explaining or defending this Agreement, the Merger or any of the other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (E) furnish the other party with copies of all filings, submissions, material correspondence and material communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective Representatives, on the one hand, and any Governmental Entity or them members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement, the Merger and the other Transactions, (iv) use reasonable best efforts to comply with any inquiry or satisfy request from the FTC, the DOJ or any other Governmental Entity as promptly as reasonably practicable and (v) consult with one another in connection with any material respect inquiry, hearing, investigation or litigation by, or negotiations with, any covenant, condition or agreement Governmental Entity relating to be complied with or satisfied by it under this Agreement, the Merger or any of the other Transactions, including the scheduling of, and strategic planning for, any meetings with any Governmental Entity relating thereto. Any such additional information shall be in substantial compliance with the requirements of the HSR Act or the applicable Foreign Merger Control Law, as the case may be. Each party will bear its own costs of preparing its own pre-merger notifications and similar filings and notices in other jurisdictions and related expenses incurred to obtain all required regulatory approvals under the HSR Act or any applicable Foreign Merger Control Law, provided that Parent shall bear all filing fees for the filings required under the HSR Act or any applicable Foreign Merger Control Law. Notwithstanding the foregoing or anything in this Agreement to the contrary, Parent will determine and control strategy for dealing with any Governmental Entity in respect of obtaining or concluding the required approval for the Transactions from such Governmental Entity, and, to the extent permissible, the Company shall, and shall cause its subsidiaries to act consistently with such strategy; provided, that Parent will consult in advance with, and consider in good faith the views of, the Company in respect of obtaining regulatory approvals under the HSR Act or any applicable Foreign Merger Control Law; provided, however, that no such notification shall affect the representationsparties agree not to (A) extend, warrantiesdirectly or indirectly, covenants any waiting period under the HSR Act or agreements any Foreign Merger Control Law or enter into any agreement with a Governmental Entity to delay or not to consummate the Merger or any of the parties other Transactions or (B) pull and refile any filing made under the conditions to HSR Act or any Foreign Merger Control Law, in the obligations case of each of clauses (A) and (B), except with the prior written consent of the parties under this Agreementother party, which consent may not be unreasonably withheld, conditioned or delayed. (c) With Notwithstanding any other requirement in this Section 5.03, where a party (a “Disclosing Party”) is required under this Section 5.03 to provide information to another party (a “Receiving Party”) that the Disclosing Party deems to be competitively sensitive information or otherwise reasonably determines in respect thereof that disclosure should be restricted, the Disclosing Party may restrict the provision of such competitively sensitive and other restricted information only to securing the Lender Consents, Buyer and Seller shall cooperate with each other and use all reasonable best efforts to secure each antitrust counsel of the Lender Consents, including taking Receiving Party; provided that the actions set forth in Section 5.3(d) of Disclosing Party also provides to the Seller's Disclosure Schedule. Each party shall update the other on its progress at the Receiving Party upon request of the other: (i) In the event some or all Receiving Party a redacted version of the Lender Consents are such information which does not obtained, to the extent the Original Loan Amounts (as defined in the Financing Commitment), as such Original Loan Amount may be increased pursuant to the terms of the Financing Commitment, exceed $454,600,000 less the amount, if any, by which the proceeds under the Financing Commitment are reduced as a result of any defect or loss referred to in clause (i)(A) of Section 7.1(j) (whether or not a Lender Property Determination (as defined below) shall have occurred) (a "Financing Overage"), the Financing Overage shall be used as a source of funds to prepay as of the Closing Date, in whole or in part, the outstanding amounts under all of the loans for which a Lender Consent is required (contain any such loan, an "Underlying Loan") which have not been received and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of a Financing Overage, the Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained; (ii) In the event that at any time after July 15, 1999, Seller reasonably believes that (A) some competitively sensitive or all of the Lender Consents will not be obtained or waived or (B) the Financing Overage will be an insufficient source of funds for the prepayment in full of all the Underlying Loans (together with all prepayment penalties) or (C) Buyer will not be able to obtain additional financing to prepay in full all the Underlying Loans (together with all prepayment penalties), Seller may seek to obtain new financing in an amount equal to such excess upon terms materially similar to market terms for similar loans on the date hereof. The proceeds of such financings shall be used solely to prepay as of the Closing Date in whole or in part one or more of the Underlying Loans for which Lender Consents have not been received or waived and any prepayment penalty with respect thereto. To the extent an Underlying Loan and any related prepayment penalty will be paid as of the Closing Date with the proceeds of any such financing, together with any Financing Overage, the -40- 49 Lender Consent with respect to such Underlying Loan shall be deemed to have been obtained. With respect to Underlying Loans that are not prepayable in accordance with their respective terms, all amounts paid or required to be paid pursuant to clause (i) above or this clause (ii) to obtain Lender Consents that exceed the amount of principal and accrued interest on the applicable Underlying Loan are referred to herein as the "Prepayment Amounts" and the parties shall use all reasonable best efforts to minimize the Prepayment Amounts; (iii) In the event that, following the operation of clauses (i) and (ii) above, all of the Lender Consents have not been obtained or deemed waived, Seller may, at its sole option, agree to have the Common Merger Consideration reduced by the aggregate amount necessary to pay at Closing all remaining amounts under the Underlying Loans in full, and Buyer shall agree to waive the condition that it receive any of the Lender Consentsother restricted information. (d) Seller, Buyer and Parent shall use all reasonable best efforts to minimize (i) the amounts of so-called Property Improvement Plan costs and termination fees paid or payable by Seller, Seller Partnership or any other Seller Subsidiary or Lessee in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining consent of the franchisors (including the Franchise Consents) under each of the Seller Franchise Agreements with respect to any Seller Property (collectively and in the aggregate, "Franchise Fees") and (ii) the amounts paid or required to be paid by Seller, Seller Partnership or any other Seller Subsidiary in cash or other consideration (including by making commitments or incurring any liability or obligation) in connection with obtaining the Ground Lessor Consents (the "Ground Lessor Amounts"), in each case in connection with transactions contemplated hereby and by the Contribution Agreement. If the Franchise Fees are equal to or less than $12,500,000, the aggregate cash consideration payable to the holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall not be adjusted pursuant to this Section 5.3(d). If the Franchise Fees exceed $12,500,000 but are less than $25,000,000 the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by one-half of the amount by which the Franchise Fees exceed $12,500,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. If the Franchise Fees exceed $25,000,000, at the option of Seller, Seller may or any Seller Subsidiary may pay or commit to pay or Seller may consent to Lessee paying or committing to pay such excess, and the aggregate cash consideration payable to holders of Seller Common Shares in the Merger and Seller Partnership Units in the Partnership Merger shall be reduced by the sum of (x) $6,250,000 as required by the preceding sentence and (y) the amount by which the Franchise Fees exceed $25,000,000, and the Merger Consideration and Partnership Merger Consideration per share or unit, as the case may be, shall be reduced accordingly. The Special Committee (or its representatives) shall be provided reasonable advance notice of all meetings with and copies of all correspondence with any franchisors under each of the Seller Franchise Agreements and be given the opportunity to attend and participate in all such meetings. (e) For purposes of the last two sentences of Section 5.3(d), no Franchise Fees that are paid or payable by Parent, Buyer or Lessee shall be included in determining the dollar thresholds in such sentences unless Seller shall have been consulted by Parent, Buyer or Lessee, as applicableIf, prior to the incurrence Effective Time, a merger control inquiry is initiated by a Governmental Entity in the jurisdictions set forth in Section 5.03(d) of such Franchise Feesthe Company Disclosure Letter, approval in that jurisdiction, or confirmation that the inquiry has ended, will be deemed a condition precedent to the completion of the Merger under Section 6.01(a).