ASSET PURCHASE AGREEMENT By and Among WENDY’S INTERNATIONAL, INC., SEAWEND, LTD., CEDAR ENTERPRISES, INC., J. DAVID KARAM, JOSEPH D. KARAM, and JAMES M. KARAM

EXHIBIT 2.1

ASSET PURCHASE AGREEMENT

By and Among

WENDY’S INTERNATIONAL, INC.,

SEAWEND, LTD.,

CEDAR ENTERPRISES, INC.,

J. XXXXX XXXXX,

XXXXXX X. XXXXX, and

XXXXX X. XXXXX

Dated as of: October 1, 2013

Table of Contents



		Page

ARTICLE I	CERTAIN DEFINITIONS	2

Section 1.01	Certain Defined Terms	2
Section 1.02	Table of Defined Terms	6

ARTICLE II	CLOSING AND RELATED MATTERS	9

Section 2.01	Closing	9
Section 2.02	Assets to be Transferred	9
Section 2.03	Retained Assets	10
Section 2.04	Liabilities to be Assumed	10
Section 2.05	Consideration	11
Section 2.06	Deliveries by Seller	12
Section 2.07	Deliveries by Purchaser	13
Section 2.08	Deliveries by Each Guarantor	14

ARTICLE III	RELATED MATTERS	14

Section 3.01	Physical Inventory	14
Section 3.02	Franchise Documents	15
Section 3.03	Apportionments	15
Section 3.04	Cash and Cash Equivalents	16

ARTICLE IV	REREPRESENTATIONS AND WARRANTIES OF SELLER	17

Section 4.01	Corporate Organization	17
Section 4.02	Authority	17
Section 4.03	Validity	17
Section 4.04	No Defaults	17
Section 4.05	Title to Assets	18
Section 4.06	Assigned Contracts and Real Property Leases	18
Section 4.07	Permits	18
Section 4.08	Compliance with Applicable Law	18
Section 4.09	Litigation	18
Section 4.10	Brokers and Finders	19
Section 4.11	Environmental Matters	18



ARTICLE V	REPRESENTATIONS AND WARRANTIES OF PURCHASER AND EACH GUARANTOR	19

Section 5.01	Corporate Organization	19
Section 5.02	Authority	20
Section 5.03	Validity	20
Section 5.04	No Defaults	20
Section 5.05	Financial Capabilities	20
Section 5.06	Brokers and Finders	20
Section 5.07	Consents and Approvals	21
Section 5.08	Seller Disclosure	21
Section 5.09	Knowledge	21

ARTICLE VI	COVENANTS OF THE PARTIES	21

Section 6.01	Inspection; Condition of Assets	21
Section 6.02	Transfer Fees	24
Section 6.03	Expenses	24
Section 6.04	Notices	24
Section 6.05	Utilities	25
Section 6.06	Cash Safes	25
Section 6.07	Conduct of Business Pending the Effective Time	25
Section 6.08	Computer/POS Systems	26
Section 6.09	Soft Drink Supply Arrangements	28
Section 6.10	Insurance	29
Section 6.11	Efforts to Complete Transaction	30
Section 6.12	Intentionally deleted	30
Section 6.13	Misdirected Payments	30
Section 6.14	Facility Assessment Reports Obligations; Image Activation	31
Section 6.15	Access to Information	31
Section 6.16	Consents and Approvals	31

ARTICLE VII	EMPLOYEES	32

Section 7.01	Termination of Employees	32
Section 7.02	Hiring of Seller’s Employees	32

ARTICLE VIII	CONDITIONS TO OBLIGATIONS OF SELLER	33

Section 8.01	Representations and Warranties True	33
Section 8.02	Performance	33
Section 8.03	No Injunction, Etc	33



Section 8.04	Consents and Approvals	33
Section 8.05	Franchise Approval	33
Section 8.06	Closing Deliverables	33

ARTICLE IX	CONDITIONS TO OBLIGATIONS OF PURCHASER	34

Section 9.01	Representations and Warranties True	34
Section 9.02	Performance	34
Section 9.03	No Injunction, Etc	34
Section 9.04	Franchise Approval	34
Section 9.05	Closing Deliverables	34

ARTICLE X	SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION	34

Section 10.01	Survival	34
Section 10.02	Agreement of Seller to Indemnify	35
Section 10.03	Agreement of Purchaser and Each Guarantor to Indemnify	35
Section 10.04	Limitation of Liability	36
Section 10.05	Procedures Relating to Indemnification	36
Section 10.06	Other Indemnification Limits	38
Section 10.07	Exclusive Remedy	39

ARTICLE XI	TERMINATION	39

Section 11.01	Methods of Termination	39
Section 11.02	Effect of Termination	40

ARTICLE XII	MISCELLANEOUS PROVISIONS	40

Section 12.01	Amendment and Modification	40
Section 12.02	Waivers	40
Section 12.03	Notices	41
Section 12.04	Assignment	41
Section 12.05	Governing Law	42
Section 12.06	Jurisdiction	42
Section 12.07	Waiver of Jury Trial	42
Section 12.08	Counterparts	43
Section 12.09	Interpretation	43
Section 12.10	Entire Agreement	44
Section 12.11	Third Parties	44
Section 12.12	Further Assurances	44
Section 12.13	Schedules	44

iii



Section 12.14	Invalidity	45
Section 12.15	Confidentiality	45
Section 12.16	Guarantee	46

SCHEDULES

Schedule 1.01(a)    Knowledge of Seller
Schedule 1.01(b)    Knowledge of Purchaser
Schedule 1.01(c)    Real Property Leases
Schedule 2.02(b)    Assigned Contracts
Schedule 2.02(c)    Special Items
Schedule 4.04    No Defaults by Seller
Schedule 4.09    Actions
Schedule 5.04    No Defaults by Purchaser and Guarantors
Schedule 6.05(a)    Supply Agreements
Schedule 6.09(a)    Leased Beverage Equipment
Schedule 6.14    Facility Assessment Reports
Schedule 7.01    Retained Employees
Schedule 8.04    Consents and Approvals

EXHIBITS

Exhibit A    List of Restaurants
Exhibit B-1    Unit 01546 Lease
Exhibit B-2    Unit 01549 Lease

Exhibit B-3 Unit 01551 Lease

Exhibit B-4 Unit 01553 Lease

Exhibit B-5 Unit 01554 Lease

Exhibit B-6 Unit 02234 Lease

Exhibit B-7 Unit 02237 Lease

Exhibit B-8 Unit 02624 Lease
Exhibit C-1 Unit 01538 Sublease

Exhibit C-2    Unit 01540 Sublease
Exhibit C-3    Unit 01541 Sublease
Exhibit C-4    Unit 01542 Sublease

Exhibit C-5 Unit 01548 Sublease

Exhibit C-6 Unit 01550 Sublease

Exhibit C-7 Unit 01555 Sublease

Exhibit C-8 Unit 01556 Sublease

Exhibit C-9 Unit 01723 Sublease

Exhibit C-10 Unit 01725 Sublease

Exhibit C-11 Unit 02238 Sublease

Exhibit C-12 Unit 02665 Sublease

Exhibit C-13 Unit 08254 Sublease

Exhibit C-14 Unit 11194 Sublease

Exhibit C-15 Unit 11196 Sublease

Exhibit C-16 Unit 11353 Sublease

Exhibit C-17 Unit 10542 Sublease

Exhibit C-18 Unit 11382 Sublease

Exhibit D    Form of Xxxx of Sale
Exhibit E    Form of General Release
Exhibit F    Letter of Agreement

Exhibit G Form of Lease

Exhibit H Form of Sublease

Exhibit I Form of Management Agreement

ASSET PURCHASE AGREEMENT

This ASSET PURCHASE AGREEMENT (this “Agreement”) is made as of October 1, 2013, by and among WENDY’S INTERNATIONAL, INC., an Ohio corporation (“Seller”), SEAWEND, LTD., an Ohio limited liability company (“Purchaser”), and CEDAR ENTERPRISES, INC., an Ohio corporation (“Cedar”), J. XXXXX XXXXX, XXXXXX X. XXXXX, and XXXXX X. XXXXX, (each, a “Guarantor” and, collectively with Seller and Purchaser, the “Parties”).

RECITALS

WHEREAS, Seller operates the twenty-four (24) “Wendy’s” or “Wendy’s Old Fashioned Hamburgers” restaurants listed on Exhibit A (under the heading “Existing Restaurants”) and is in the process of developing the restaurant buildings and related improvements to be used in the future operation of two (2) “Wendy’s” or “Wendy’s Old Fashioned Hamburgers” restaurants listed on Exhibit A (under the heading “Future Restaurants”) (collectively, the “Restaurants”);

WHEREAS, Seller is the owner in fee of the real estate, buildings and related improvements thereat used in the operation of the Restaurants designated as “Owned Real Property” on Exhibit A (collectively, the “Owned Real Property”);

WHEREAS, Seller is the owner of a leasehold interest in the real estate and/or a leasehold interest and/or ownership interest in the building and related improvements thereat used or to be used in the operation of the Restaurants designated as “Leased Real Property” on Exhibit A (collectively, the “Leased Real Property”) (provided that the prime lease for the real estate to be used in the operation of Unit 11382 is currently in final negotiations between Seller and the landlord);

WHEREAS, Seller desires to transfer, assign and sell to Purchaser, and Purchaser desires to acquire and purchase from Seller, all of Seller’s right, title and interest in and to certain of the assets used or to be used exclusively in the operation of the Restaurants, in each case upon the terms and subject to the conditions set forth in this Agreement and the Ancillary Agreements (except as otherwise indicated, capitalized terms used but not defined in these recitals have the meaning ascribed to such terms in Section 1.01 below or referenced in Section 1.02 below);

WHEREAS, at the Closing, Seller, Purchaser and Cedar shall enter into eight (8) separate leases in substantially the form attached hereto as Exhibit G, subject to the specific terms and conditions for each particular leased parcel set forth in Exhibit B-1 through Exhibit B-8, respectively (collectively, the “Leases”), pursuant to which Seller shall lease to Purchaser certain Owned Real Property used in the operation of the Restaurants, in each case upon the terms and subject to the conditions set forth herein and therein;

WHEREAS, at the Closing, Seller, Purchaser and Cedar shall enter into eighteen (18) separate subleases in substantially the form attached hereto as Exhibit H, subject to the specific terms and conditions for each particular subleased parcel set forth in Exhibit C-1 through Exhibit C-18, respectively (collectively, the “Subleases”), pursuant to which Seller shall sublease to Purchaser certain Leased Real Property used or to be used in the operation of the Restaurants, in each case upon the terms and subject to the conditions set forth herein and therein;

WHEREAS, in connection with the purchase of the assets described herein, upon the terms and subject to the conditions set forth herein, Purchaser and each Guarantor shall execute and deliver to Seller the Franchise Documents at the Closing with respect to the Restaurants; and

WHEREAS, as an inducement for Seller to enter into this Agreement and in light of the indirect benefits that each Guarantor anticipates deriving from the transactions contemplated hereby, each Guarantor desires to fully and unconditionally guarantee Purchaser’s payment and performance of its obligations under this Agreement upon the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

Section 1.01 Certain Defined Terms. For purposes of this Agreement, unless otherwise defined herein, capitalized terms used herein shall have the corresponding meanings set forth below:

“Action” means any action, claim, suit, litigation, hearing, complaint or proceeding by or before any Governmental Authority.

“Affiliate” means, with respect to any specified Person, any other Person that, at the time of determination, directly or indirectly through one or more intermediaries Controls, is Controlled by, or is under common Control with, such first Person. With respect to any natural person, “Affiliate” includes such Person’s spouse, descendants, parents, and any descendants of such Person’s parents (in each case, whether by blood, adoption or marriage).

“Ancillary Agreements” means the Leases, the Subleases, the Xxxx of Sale, the General Release, the Confidentiality Agreement, the Development Agreement, the Relationship Agreement, the Letter of Agreement, the Management Agreement and the Franchise Documents.

“Xxxx of Sale” means a xxxx of sale and assignment and assumption agreement to be entered into on the Closing Date and effective as of the Effective Time between Seller and Purchaser, substantially in the form attached hereto as Exhibit D.

“Business” means the business of owning and using the Assets and operating the Restaurants, in each case, as conducted by Seller as of the date of this Agreement. For the avoidance of doubt, “Business” does not include (a) the ownership or use of any assets or properties of Seller or its Affiliates other than the Assets or (b) the operations or conduct of any business activity by Seller or its Affiliates that does not relate exclusively to the Restaurants (including any business activity that may relate to, support or benefit both one or more Restaurants, on the one hand, and one or more other System Restaurants, on the other hand).

“Business Day” means any day other than a Saturday, Sunday or other day on which banking institutions in the State of Ohio are required or authorized by Law to be closed.

“Business Locations” means the locations of the Owned Real Property and Leased Real Property.

“Contract” means any contract, agreement, lease, purchase order, promise, arrangement, understanding, undertaking, indenture, commitment, loan, consent, note or other legally-binding obligation, whether written or oral and whether express or implied.

“Control”, “Controlled” or “Controlling” means, as to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by Contract or otherwise. The terms "Controlled by" and "under common Control with" shall have correlative meanings.

“Development Agreement” means an agreement by and between Seller and Purchaser that shall address Purchaser’s non-exclusive right to develop a certain number of “Wendy’s” and “Wendy’s Old Fashioned Hamburgers” restaurants within an agreed geographic area during a limited term.

“Environmental Law” means any law or regulation of a Governmental Authority pertaining to protection of the environment.

“General Release” means a general release substantially in the form attached hereto as Exhibit E by Purchaser and each Guarantor in favor of Seller.

“Governmental Authority” means any federal, state, local or foreign government, or subdivision or instrumentality thereof, or any entity, body or authority exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any

federal, state, local or foreign government, in each case having jurisdiction over the Person, property or matter in question.

“Knowledge” means (a) with respect to Seller, the actual knowledge of the individuals listed on Schedule 1.01(a) without inquiry or investigation and (b) with respect to Purchaser, the actual knowledge of the individuals listed on Schedule 1.01(b) without inquiry or investigation.

“Law” means any federal, state, local or foreign law, statute, treaty, code or ordinance, common law or any applicable rule, regulation, guideline, standard, Order or Permit of any Governmental Authority.

“Letter of Agreement” means a letter of agreement in substantially the form attached hereto as Exhibit F by and among Seller, Purchaser and each Guarantor that shall address, among other things, image activation requirements, the repair and equipment upgrade requirements as reflected in the facility assessment reports and other franchising matters.

“Liabilities” means any and all debts, liabilities, expenses, commitments, obligations, duties, responsibilities and actions of any kind, character or description, whether fixed, contingent or absolute, matured or unmatured, accrued or not accrued, asserted or not asserted, known or unknown, disputed or undisputed, joint or several, secured or unsecured, liquidated or unliquidated, determined, determinable or otherwise, whenever or however arising (including any arising out of any Contract, tort, Law or otherwise) and whether or not the same would be required by applicable accounting principles or standards to be reflected in financial statements or disclosed in the notes thereto.

“Lien” means any option, mortgage, deed of trust, pledge, hypothecation, lien (statutory or otherwise), charge, security interest or other encumbrance (including any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing and any assignment or deposit arrangement in the nature of a security device).

“Order” means any order, writ, judgment, injunction, ruling, decree, stipulation, determination or award entered by or with any Governmental Authority.

“Permit” means any qualifications, registrations, filings, licenses, Orders, permits, certificates of occupancy, variances, consents, approvals, validations, authorizations, accreditations, certifications, exemptions or waivers made with or issued or granted or otherwise made available by or under the authority of any Governmental Authority or pursuant to any Law.

“Permitted Liens” means (i) Liens for taxes or other governmental charges or levies that are not yet due or payable or that are being contested in good faith by appropriate

proceedings, (ii) statutory Liens of landlords and Liens of carriers, warehousemen, mechanics, materialmen, repairmen and other Liens imposed by Law for amounts not yet due, (iii) zoning, building and other generally-applicable land-use restrictions, (iv) in the case of Assigned Contracts (or rights or interests therein), Liens arising from the terms of such Assigned Contracts, (v) Liens created by this Agreement or any of the other Transaction Agreements or any of the transactions contemplated hereby or thereby, (vi) Liens created by or arising from actions of Purchaser or any Guarantor, and (vii) other Liens that do not, individually or in the aggregate, materially detract from the value of the Assets or materially interfere with the present use of the Assets in the operation of the Business,.

“Person” means any natural person, corporation, partnership, joint stock company, joint venture, limited liability company, association, trust, unincorporated organization or other entity, including any Governmental Authority.

“Purchaser Franchise Agreements” means the Franchise Documents and any other franchise agreements or similar agreements between or among Purchaser and/or all or any of the Guarantors, on the one hand, and Seller or any of its current or future Affiliates, on the other hand.

“Real Property Leases” means the Contracts set forth on Schedule 1.01(c) pursuant to which Seller, as lessee, has leased from the applicable lessor certain Leased Real Property.

“Relationship Agreement” means an agreement by and among Seller, Purchaser and each Guarantor that shall address the acquisition and/or development by Purchaser, directly or indirectly, of “Wendy’s” or “Wendy’s Old Fashioned Hamburgers” restaurants in addition to the Restaurants covered by this Agreement and the “Wendy’s” or “Wendy’s Old Fashioned Hamburgers” restaurants covered by the Development Agreement.

“Representatives” means, as to any Person, such Person's directors, officers, partners, managers, employees, Affiliates, representatives (including financial advisors, attorneys and accountants) or agents.

“Specifically-Identified Competitive Restaurants” means any of the following restaurants: McDonald’s, Burger King, Carl's Jr., Church’s Chicken, Chick-fil-A, Five Guys Burgers and Fries, Hardee's, In-N-Out Xxxxxx, Xxxx-in-the-Box, Kentucky Fried Chicken (KFC), Popeye's Chicken, Zaxby’s, Raising Cane’s, Rally's, Checkers, Smashburger, Whataburger, Steak ‘n Shake, Culver’s, Sonic and White Castle.

“System Restaurant” means any restaurant or other commercial establishment offering food and beverage items at retail that is directly or indirectly owned or operated by (i) The Wendy’s Company or any of its current or future Affiliates, (ii) any other Person pursuant to

or in connection with any franchise agreement or similar agreement with The Wendy’s Company or any of its current or future Affiliates or (iii) any joint venture, partnership or similar arrangement in which The Wendy’s Company or any of its current or future Affiliates participates.

“Transaction Agreements” means this Agreement, the Ancillary Agreements and any other agreements or instruments to be delivered pursuant hereto or thereto.

Section 1.02 Table of Defined Terms. The following capitalized terms shall have the meanings indicated in the corresponding sections of this Agreement listed below:

Defined Term Where Defined

Action Section 1.01

Affiliate Section 1.01

Agreement Preamble

Ancillary Agreements Section 1.01

Armored Car Service Provider Section 6.06

Assets Section 2.02

Assigned Contracts Section 2.02(b)

Assumed Liabilities Section 2.04

Xxxx of Sale Section 1.01

Business Section 1.01

Business Day Section 1.01

Business Locations Section 1.01

Cash Safes Section 6.06

Cash Services Agreement Section 6.06

CCNA Section 6.09(a)

Claim Section 10.05(a)

Claims Notice Section 10.05(a)

Closing Section 2.01

Closing Amount Section 2.05(a)

Closing Date Section 2.01

Confidentiality Agreement Section 12.15(a)

Contract Section 1.01

Control Section 1.01

Controlled Section 1.01

Controlling Section 1.01

Damages Section 10.02

Effective Time Section 2.01

Electronic Transactions Section 6.08(h)

Employees Section 7.01

Environmental Law Section 1.01

Equipment Section 2.02(a)

Franchise Documents Section 3.02(a)

Future Restaurants Section 2.05(a)

General Release Section 1.01

Governmental Authority Section 1.01

Guaranteed Obligations Section 12.16(a)

Guarantor Preamble

Hired Employees Section 7.02

Indemnitee Section 10.05(a)

Indemnitor Section 10.05(a)

Insurance Certificate Section 6.10

Inventory Section 3.01

IRS Section 2.05(d)

Knowledge Section 1.01

Law Section 1.01

Leased Real Property Recitals

Leases Recitals

Letter of Agreement Section 1.01

Liabilities Section 1.01

Lien Section 1.01

Menu Boards Section 6.09(b)

Order Section 1.01

Owned Real Property Recitals

Parties Preamble

Permit Section 1.01

Permitted Liens Section 1.01

Person Section 1.01

Personal Property Section 2.02(d)

Purchase Price Section 2.05(a)

Purchaser Preamble

Purchaser Franchise Agreements Section 1.01

Purchaser Indemnified Parties Section 10.02

Real Property Leases Section 1.01

Real Property Taxes Section 3.03(a)(i)

Representatives Section 1.01

Restaurants Recitals

Retained Assets Section 2.03

Retained Liabilities Section 2.04

Seller Preamble

Seller Indemnified Parties Section 10.03

Seller’s IT Section 6.08(e)

Special Items Section 2.02(c)

Specifically-Identified Competitive Restaurants Section 1.01

Subleases Recitals

Suppliers Section 6.05(a)

Supply Agreements Section 6.05(a)

Survival Period Section 10.01

System Restaurant Section 1.01

TAF Section 2.05(b)

Third-Party Claim Section 10.05(b)

Transaction Agreements Section 1.01

Transfer Fees Section 6.02

Transition Services Section 6.08(a)

ARTICLE II

CLOSING AND RELATED MATTERS

Section 2.01 Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall be effective as of the Effective Time. Prior to the Effective Time, Seller and Purchaser shall provide satisfaction or waiver in writing of all of the conditions set forth in Article VIII and Article IX, which may occur by electronic delivery of documentation, or by physical exchange of documentation at such location as Seller and Purchaser may mutually agree, (a) at 10:00 a.m., Eastern Time, on the later of (i) October 7, 2013 or (ii) the first Business Day that is a Monday following the first date upon which all of the conditions set forth in Article VIII and Article IX have been satisfied or waived in writing (other than those conditions that by their nature are to be fulfilled at the Closing, but subject to the fulfillment or waiver of such conditions) or (b) at such other time, or by such other means, as the Parties may agree in writing (“Closing Date”). The Closing shall for all purposes be deemed to be effective at 12:01 a.m., local time at the Business Locations, on the Closing Date (the “Effective Time”). Seller shall be entitled to maintain possession of the Assets and to operate the Restaurants, in each case for its own account, until the Effective Time. As of the Effective Time, Purchaser shall be entitled to take possession of the Assets and to begin operating the Restaurants.

Section 2.02 Assets to be Transferred. Except as otherwise provided in Section 2.03, on the terms and subject to the conditions of this Agreement, at the Closing and effective as of the Effective Time, Seller shall sell, convey, assign and transfer to Purchaser all of Seller’s right, title and interest in and to the following properties and assets that are used exclusively in connection with the Restaurants (collectively, the “Assets”) free and clear of all Liens except for Permitted Liens:

(a) all of the furniture, trade fixtures and equipment, including, without limitation, bun freezers, that are owned by Seller and located at a Restaurant and at the restaurant located at 0000 Xxxxx 000^xx Xxxxxx, Xxxx, Xxxxxxxxxx 00000 which Seller is permanently closing on or prior to the Closing Date (the “Additional Restaurant”) as of the Effective Time (collectively, the “Equipment”);

(b) to the extent assignable, the Contracts to which Seller is a party that are in effect as of the Effective Time and that relate exclusively to the Business, including those listed in Schedule 2.02(b) (collectively, the “Assigned Contracts”);

(c) the cash bank for each Restaurant and other prepaid and special items listed on Schedule 2.02(c) (collectively, the “Special Items”);

(d) two (2) maintenance vans (and the parts therein) used to support the Restaurants (the “Vans”); and

(e) the Inventory and all other inventories, supplies and other tangible personal property that are owned by Seller and located in a Restaurant as of the Effective Time including counters, shelving, racks, slat walls, display cases, décor, tables, seating, signs, promotional items and materials, new and unused uniforms, smallwares and office supplies (collectively, the “Personal Property”).

Section 2.03 Retained Assets. Notwithstanding anything in this Agreement to the contrary, the Assets to be transferred and assigned by Seller to Purchaser hereunder shall exclude the following (collectively, the “Retained Assets”): (a) except with regard to the Vans, any tangible assets of Seller that are not located at a Restaurant at the Effective Time; (b) any intangible assets of Seller that relate to more than just the Restaurants; (c) any patents, trademarks, copyrights, domain names or other intellectual property owned, under application or licensed by Seller or any of its Affiliates; (d) except as set forth in the Leases and Subleases and except for the building and leasehold improvements for Unit #11353, any owned or leased real property related to the Restaurants (including any improvements thereon or thereat); (e) other than the cash banks included in the Special Items, any cash located at the Restaurants as of the Effective Time, including any cash in the Cash Safes as of the Effective Time; (f) any receivables related to the operations of the Restaurants prior to the Effective Time; (g) any deposits related to utility services; (h) any insurance policies, including all of Seller’s rights in and to unearned premiums, refunds, and all claims or possible claims under such policies; (i) any current or historical files or records of Seller; (j) the application software and programs and wireless network software utilized in the point of sale (POS) system, manager’s work station (MWS) and/or training work station (TWS) located in the Restaurants; (k) warranties and/or service agreements for the maintenance of Equipment located in the Restaurants, including the cash register system, coin changer, time clock, outside display board and drive-thru audio system except any warranties and/or service agreements that (i) automatically transfer to the Purchaser, as the new owner of the Equipment, (ii) do not require the consent of any third parties and (iii) do not impose any costs or expenses on Seller or its Affiliates (the “Assignable Warranties”); (l) any Contracts between Seller, on the one hand, and any Affiliate of Seller, on the other hand; and (m) all donation canisters located in the Restaurants owned by the Xxxx Xxxxxx Foundation for Adoption (“DTFA”) and all money therein (the “DTFA Canisters”).

Section 2.04 Liabilities to be Assumed. On the terms and subject to the conditions of this Agreement, in partial consideration of the sale, transfer, conveyance and assignment to Purchaser of the Assets, as of the Effective Time, Purchaser shall assume the following debts, liabilities and obligations of Seller and/or its Affiliates (collectively, the “Assumed Liabilities”):

(a) all taxes, assessments and other liabilities of Seller for which Purchaser receives a credit pursuant to Section 3.03;

(b) the obligations and liabilities of Seller under the Assigned Contracts that accrue or arise from and after the Effective Time; and

(c) the obligations and liabilities of Seller and/or its Affiliates that arise from and after the Effective Time described in Section 6.05(a), Section 6.06, Section 6.09(b) and Section 6.09(c).

Except for the above-listed items (a), (b) and (c) or as otherwise provided in this Agreement or any other Transaction Agreement, Purchaser shall not be liable for any debts, liabilities, obligations or taxes of Seller that were incurred or accrued in connection with the operation of the Restaurants or the ownership or use of the Assets prior to the Effective Time (the “Retained Liabilities”). In no event shall Seller be liable for any debts, liabilities, obligations or taxes of Purchaser arising out of or incurred in connection with the operation of the Restaurants or the ownership or use of the Assets from and after the Effective Time.

Section 2.05 Consideration.

(a) On the terms and subject to the conditions of this Agreement, and in consideration of the sale, transfer, conveyance and assignment of the Assets, at the Closing, Purchaser shall pay to Seller the following amounts: (i) Thirteen Million Six Hundred Forty Thousand Five Hundred Seventeen Dollars ($13,640,517.00) for the Assets (exclusive of the Special Items, Inventory and Vans that are separately listed below), which is comprised of (A) One Million Seven Hundred Thirty-Nine Thousand Six Hundred Sixty-Four Dollars ($1,739,664.00) as the actual development costs incurred by Seller for the development of the Restaurant located at 0000 00xx Xx., X. Xxxxxx, Xxxxxxxxxx, known as Xxxx 00000 and (B) Eleven Million Nine Hundred Thousand Eight Hundred Fifty-Three Dollars ($11,900,853.00) for the remainder of the Assets; (ii) Thirty-Six Thousand Dollars ($36,000.00) as the estimated value of the Special Items; (iii) One Hundred Eighty Thousand Dollars ($180,000.00) as the estimated value of the Inventory; (iv) Seventy Thousand Dollars ($70,000.00) as the estimated value of the Vans as of the Closing; (v) Fifty Thousand Dollars ($50,000.00) as the estimated out-of-pocket costs and expenses incurred by Seller in relation to the Wendy’s restaurants to be constructed and developed by Purchaser at 00000 XX Xxxx Xxxx, Xxxxxx, Xxxxxxxxxx, known as Xxxx 00000, and at 00000 XX 000xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx, known as Unit 11382 (the “Future Restaurants”); (vi) Three Hundred Fifty Thousand Dollars ($350,000.00) as the actual out-of-pocket costs and expenses incurred by Seller in performing in-process image activation for the Restaurant located at 00000 Xxxxxxx Xxx XX., Xxxxxxxx, Xxxxxxxxxx, known as Xxxx 00000; and (vii) a Development Fee (as defined in the Development Agreement) of One Hundred Five Thousand Dollars ($105,000.00). The total

of the amounts listed in (i), (ii), (iii), (iv), (v), (vi) and (vii) is Fourteen Million Four Hundred Thirty-One Thousand Five Hundred Seventeen Dollars ($14,431,517.00) (collectively, the “Closing Amount”). The Closing Amount, as adjusted in accordance with Section 3.03(a), shall constitute the “Purchase Price”. The Closing Amount shall be paid to Seller by Purchaser in cash at the Closing.

(b) In addition to the Closing Amount payable pursuant to Section 2.05(a) above, Purchaser shall pay in cash to Seller at the Closing Five Hundred Fifty Thousand Dollars ($550,000.00) as the aggregate of the technical assistance fees due pursuant to the terms and conditions of the Franchise Documents (such amount, the “TAF”).

(c) As additional consideration for the transfer of the Assets and in consideration for the grant of franchise rights to operate the Restaurants, Purchaser and each Guarantor shall execute and deliver to Seller at the Closing the General Release.

(d) Seller and Purchaser shall each be solely responsible for, and assume any and all risk and liability associated with, the preparation and timely filing of its own Internal Revenue Service (“IRS”) Form 8594 in connection with the transactions contemplated by this Agreement and the allocation reported thereon. Purchaser and Seller shall promptly deliver to the other a copy of its IRS Form 8594 filed in connection with the transactions contemplated by this Agreement. Any adjustment to the Purchase Price shall be allocated as provided by Treasury Regulation section 1.1060-1(c).

Section 2.06 Deliveries by Seller. At the Closing, Seller shall deliver (or cause to be delivered) the following to Purchaser:

(a) a duly-executed counterpart of each of the Leases;

(b) a duly-executed counterpart of each of the Subleases;

(d) a duly-executed counterpart of the General Release;

(e) a duly-executed counterpart of a closing statement in form and substance satisfactory to Seller, on the one hand, and Purchaser, on the other hand;

(f) a duly-executed counterpart of the Relationship Agreement;

(g) a duly executed counterpart of the Letter of Agreement;

(h) a duly-executed counterpart of the Development Agreement; and

(i) all such other documents, agreements, instruments, writings and certificates as Purchaser may reasonably request and that are necessary for Seller to satisfy any of its obligations hereunder.

Section 2.07 Deliveries by Purchaser. At the Closing, Purchaser shall deliver (or cause to be delivered) the following to Seller:

(a) the Closing Amount by wire transfer of immediately-available funds in accordance with written instructions provided by Seller prior to the Closing;

(b) the TAF by wire transfer of immediately-available funds in accordance with written instructions provided by Seller prior to the Closing;

(c) a duly-executed counterpart of each of the Leases, together in each case with a duly-completed Electronic Funds Transfer (EFT) Form;

(d) a duly-executed counterpart of each of the Subleases, together in each case with a duly-completed Electronic Funds Transfer (EFT) Form;

(e) a duly-executed counterpart of the Xxxx of Sale;

(f) a duly-executed counterpart of the General Release;

(g) duly-executed Franchise Documents, including a duly-executed Letter of Agreement and, if applicable, appropriate e-Royalty documentation;

(h) evidence reasonably satisfactory to Seller that Purchaser has complied with its obligations under Section 6.05(a);

(i) evidence reasonably satisfactory to Seller that Purchaser has complied with its obligations under Section 6.06;

(j) the Insurance Certificate(s) referred to in Section 6.10;

(k) a resale certificate(s) in form and substance reasonably satisfactory to Seller regarding the Inventory;

(l) a duly-executed counterpart of a closing statement in form and substance satisfactory to Seller, on the one hand, and Purchaser, on the other hand;

(m) a duly-executed counterpart of the Relationship Agreement;

(n) a duly-executed counterpart of the Development Agreement; and

(o) all such other documents, agreements, instruments, writings and certificates as Seller may reasonably request and that are necessary for Purchaser to satisfy any of its obligations hereunder.

Section 2.08 Deliveries by Each Guarantor. At the Closing, each Guarantor shall deliver (or cause to be delivered) the following to Seller:

(a) as to Cedar only, a duly-executed counterpart of each of the Leases, including a duly-executed Guaranty of Lease in the form attached thereto;

(b) as to Cedar only, a duly-executed counterpart of each of the Subleases, including a duly-executed Guaranty of Sublease in the form attached thereto;

(d) a duly-executed counterpart of the Relationship Agreement, if such Guarantor is a party to the Relationship Agreement;

(e) a duly-executed counterpart of the Development Agreement, if such Guarantor is a party to the Development Agreement;

(f) duly-executed Franchise Documents, including a duly-executed Letter of Agreement; and

(g) all such other documents, agreements, instruments, writings and certificates as Seller may reasonably request and that are necessary for such Guarantor to satisfy any of his or her obligations hereunder.

ARTICLE III

RELATED MATTERS

Section 3.01 Physical Inventory. On the night immediately preceding the Effective Time, representatives of Seller and Purchaser shall (a) complete a physical inventory of all food, paper inventory, kids’ meal premium and cleaning supplies located at the Restaurants (the “Inventory”) and complete and sign Seller’s standard inventory form and (b) count the cash to be left in the cash bank at each Restaurant. The value of the Inventory shall be based upon Seller’s actual cost of such Inventory, and the value of the cash shall be valued at the face amount thereof. For purposes of the Closing, the Inventory and Special Items will be assumed to have a value equal to the amount specified in Section 2.05(a)(iii) and Section 2.05(a)(ii), respectively, which estimated values shall be subject to adjustment following the Closing in accordance with Section 3.03(b).

Section 3.02 Franchise Documents.

(a) Seller will, prior to the Closing, deliver to Purchaser and each Guarantor a copy of the Wendy’s International, Inc. Unit Franchise Agreement, in its current form, for each Restaurant, including all addenda thereto (collectively and together with the Letter of Agreement, the “Franchise Documents”); provided, however, that the Parties agree that the Franchise Documents with respect to the Future Restaurants will be executed and delivered in accordance with the terms of the Development Agreement.

(b) Within seven (7) Business Days following the Closing Date, Seller shall countersign the Franchise Documents delivered by Purchaser and each Guarantor at Closing and deliver fully-executed copies thereof to Purchaser.

Section 3.03 Apportionments.

(a) On the Closing Date and as of the Effective Time, Purchaser and Seller shall apportion the following obligations, expenses and prepayments with respect to the Owned Real Property, Leased Real Property, Business and Assets (subject to subsequent adjustment pursuant to Section 3.03(b)):

(i) the ad valorem taxes, assessments and fees (collectively, the “Real Property Taxes”) on such tax-year or fiscal-year basis or other period, as the case may be, as such Real Property Taxes may be levied or assessed, estimated on the basis of the last available tax xxxx, as set forth in the applicable Lease or Sublease;

(ii) if arrangements cannot be made for separate billing, any apportionable utility charges and any other charges that are properly apportionable in accordance with the terms of this Agreement;

(iii) prepayments under the Assigned Contracts assumed by Purchaser and any other prepayments exclusively related to the Restaurants (including prepaid marketing or other expenses as of the Closing); and

(iv) personal property taxes, if any.

(b) Not later than ninety (90) days following the Closing Date (or if such date is not a Business Day, the immediately-following Business Day), Seller shall prepare and furnish to Purchaser a reconciliation that shall set forth the actual Inventory and Special Item amounts as of the Effective Time, the actual amounts for items listed in Section 2.05(a)(ii), (iii), (iv) and (v), hereof, and the proration of all obligations, expenses and prepayments in respect of the Restaurants as of the Effective Time (including those contemplated by Section 3.03(a) above). For the avoidance of doubt, the Parties agree that Purchaser shall assume all

construction and development obligations and liabilities with respect to the Future Restaurants as of the Effective Time, and therefore Purchaser shall be responsible for all costs of construction and development that are incurred at or after the Effective Time with respect to the Future Restaurants. Real Property Taxes and other taxes, and all other expenses and charges relating to the ownership and/or occupancy, as applicable, of the Owned Real Property, Leased Real Property, and Assets, shall be shared as set forth in the applicable Lease or Sublease. Purchaser shall review such reconciliation and shall notify Seller of any objections to any amounts shown within fifteen (15) days after receipt. If such reconciliation provides that Purchaser owes Seller any amount, then Purchaser shall pay such amount shown as owed to Seller within thirty (30) days after the later to occur of (i) receipt by Purchaser of the reconciliation, or (ii) the resolution of all objections timely raised by Purchaser to the reconciliation. If such reconciliation provides that Seller owes Purchaser any amount, then Seller shall pay such amount shown as owed to Purchaser within thirty (30) days after the later to occur of (A) receipt by Purchaser of the reconciliation, or (B) the resolution of all objections timely raised by Purchaser to the reconciliation.

(c) In addition to the adjustments and payments contemplated above, Seller and Purchaser agree to make payments to each other on a timely basis with respect to amounts and adjustments not correctly ascertainable pursuant to Section 3.03(a) and Section 3.03(b) when the correct amount of any amounts to be adjusted or apportioned pursuant to this Section 3.03 are ascertained.

Section 3.04 Cash and Cash Equivalents.

(a) As soon as practicable following the Effective Time, Seller shall cause all cash in the Cash Safes to be removed from the Restaurants. Purchaser shall not withdraw or remove any cash from any such Cash Safe until Seller has caused such cash to be collected from the Cash Safes. Purchaser shall reasonably cooperate with Seller and its Representatives to facilitate such collection. For the avoidance of doubt, all such cash in the Cash Safes as of the Effective Time shall remain the property of Seller.

(b) With respect to any coupons, gift certificates and gift cards issued for use at the Restaurants prior to the Effective Time, Purchaser shall honor all such coupons, gift certificates and gift cards presented for payment at the Restaurants. Following the Effective Time, Purchaser will be required, pursuant to the Franchise Documents, to participate in Seller’s gift card program.

ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF SELLER

Except as disclosed in the corresponding schedules attached hereto (it being understood and agreed by the Parties that disclosure of any item in any such schedule shall be deemed disclosed with respect to each other such schedule to which the relevance of such item is reasonably apparent), Seller hereby represents and warrants to Purchaser the following, as of the date of this Agreement and as of the Closing Date:

Section 4.01 Corporate Organization. Seller is a corporation duly incorporated and in good standing under the Laws of the State of Ohio, and is duly qualified and authorized to do business as a foreign corporation in good standing in each other state or states in which any of the Business Locations are located.

Section 4.02 Authority. Seller has full power and authority, in accordance with its articles of incorporation and other organizational documents, to conduct the Business as it is now being conducted, and to enter into and perform its obligations under this Agreement and the other Transaction Agreements and to carry out the transactions contemplated hereby and thereby. All corporate action on the part of Seller necessary for the authorization, execution and delivery of this Agreement and the other Transaction Agreements and the performance of all obligations of Seller hereunder and thereunder has been duly taken or will be taken prior to the execution by Seller of each Transaction Agreement.

Section 4.03 Validity. This Agreement has been, and the other Transaction Agreements to which Seller is a party when executed and delivered by Seller will be, duly executed and delivered by Seller and, assuming the due execution and delivery of such agreements by the other parties thereto, constitute the legal, valid and binding obligations of Seller enforceable in accordance with their respective terms.

Section 4.04 No Defaults. Except as set forth in Schedule 4.04, neither the execution and delivery of this Agreement nor the other Transaction Agreements nor the consummation of the transactions contemplated hereby and thereby will: (a) violate any provision of the articles of incorporation or other organizational documents of Seller; (b) to the Knowledge of Seller, violate, or conflict with, or constitute a default (or constitute an event that, with notice or lapse of time or both, would constitute a default) under, or give rise to any monetary penalty, right of termination, cancellation or acceleration under, any material Contract to which Seller is a party or by which it or any of the Assets may be bound; (c) violate any Law applicable to either Seller or any of the Assets; or (d) require any notice to, filing with, or authorization, consent or approval of any Governmental Authority to be made or obtained by Seller prior to the Closing Date except, in the case of this subsection (d), for such notices, filings,

authorizations, consents or approvals as will have been made or obtained, as applicable, on or before the Closing Date.

Section 4.05 Title to Assets. Seller either has valid freehold or leasehold title to, or as of the Closing will have valid freehold or leasehold title to, all of the Assets, as further described in this Agreement, free and clear of any Liens except Permitted Liens. As of the Effective Time, Seller will convey to Purchaser the Assets free and clear of all Liens except for Permitted Liens.

Section 4.06 Assigned Contracts and Real Property Leases. With respect to each Assigned Contract and each Real Property Lease, assuming the due authorization, execution and delivery thereof by the other party or parties thereto, (a) each such Assigned Contract and Real Property Lease is a valid, binding and enforceable obligation of Seller and, to the Knowledge of Seller, each other party thereto, in accordance with its terms and is in full force and effect, and (b) Seller has not received any written notice that it is, and, to the Knowledge of Seller, no other party thereto is, in material default in the performance, observance or fulfillment of any obligation, covenant or condition contained in such Assigned Contract or Real Property Lease. To the Knowledge of Seller, no event or occurrence has transpired that, with the passage of time or giving of notice or both, will constitute a material default under any Assigned Contract or Real Property Lease. At the time of the Closing, Seller shall have made all payments and performed all obligations due through the Closing Date under each Assigned Contract or Real Property Lease.

Section 4.07 Permits. As of the date hereof, Seller has all material Permits as are necessary to conduct the Business as presently conducted. All such Permits are valid and in full force and effect. Seller is not the subject of any pending and has not received written notice of any action seeking the revocation, suspension, termination or material modification or impairment of any such Permits.

Section 4.08 Compliance with Applicable Law. As of the date hereof, to the Knowledge of Seller, Seller has received no written notices or communications that (a) it is not in compliance in all material respects with all Laws applicable to the Business including those relating to zoning, health, safety, and employment, or (b) the present operation of the Restaurants violates any such Laws in any material respect. To the Knowledge of Seller, Seller is in compliance in all material respects with all Laws applicable to Seller’s operation of the Restaurants or ownership or use of the Assets.

Section 4.09 Litigation. Except as may be set forth in Schedule 4.09, as of the date hereof, no Action is pending or, to the Knowledge of Seller, threatened against Seller in connection with the Business that, if adversely determined, would have a material adverse effect on the Business. Except as may be set forth in Schedule 4.09, as of the date hereof, there are no Actions pending or, to the Knowledge of Seller, threatened against

Seller relating to the Business that are not covered by insurance or as to which an insurer has reserved any right to deny coverage.

Section 4.10 Brokers and Finders. Neither Seller nor any of its Representatives has taken any action with respect to any broker or finder that would give rise to any liability on the part of Purchaser or incurred any liability for any brokerage fees, commissions or finder’s fees in connection with the transactions contemplated by this Agreement that would give rise to any liability on the part of Purchaser.

Section 4.11 Environmental Matters. Prior to the date hereof, Seller has delivered to Purchaser copies of all environmental reports and assessments relating to the Owned Real Property and Leased Real Property prepared by or on behalf of Seller that are in its possession. Except for matters disclosed in such reports and assessments, as of the date hereof, to Seller’s Knowledge, Seller has not received any written notice alleging any liability arising out of, based on or resulting from, any violation, or alleged violation, of any Environmental Law with respect to the Owned Real Property or Leased Real Property. To Seller’s Knowledge, Seller has not treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled, released, or exposed any Person to, any substance that has given rise to any liabilities or investigative, corrective or remedial obligations pursuant to any Environmental Law, or that has been determined to be hazardous to human health under applicable Law, with respect to the Owned Real Property or Leased Real Property.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF PURCHASER AND EACH GUARANTOR

Except as disclosed in the corresponding schedules attached hereto (it being understood and agreed by the Parties that disclosure of any item in any such schedule shall be deemed disclosed with respect to each other such schedule to which the relevance of such item is reasonably apparent), Purchaser and each Guarantor, jointly and severally, hereby represent and warrant to Seller the following, as of the date of this Agreement and as of the Closing Date:

Section 5.01 Corporate Organization. Purchaser is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Ohio, and is duly qualified and authorized to do business as a foreign limited liability company in good standing in each other state or states in which any of the Business Locations are located, which includes Purchaser’s registration in the State of Washington as SEAWEND, LTD. DBA SEAWEND, LTD L.L.C.

Section 5.02 Authority. Purchaser has full power and authority, in accordance with its articles of organization and other organizational documents, to carry out its business as presently conducted, to enter into and perform its obligations under this Agreement and the other Transaction Agreements and to carry out the transactions contemplated hereby and thereby. All entity actions on the part of Purchaser necessary for the authorization, execution and delivery of this Agreement and the other Transaction Agreements and the performance of all obligations of Purchaser hereunder and thereunder have been duly taken. Each Guarantor other than Cedar Enterprises, Inc. is an individual person over the age of eighteen (18) years with the legal capacity to (a) enter into this Agreement and the other Transaction Agreements to which he or she is a party and (b) consummate and perform the transactions contemplated hereby and thereby. Cedar Enterprises, Inc. is a corporation with the legal capacity to (a) enter into this Agreement and the other Transaction Agreements to which it is a party and (b) consummate and perform the transactions contemplated hereby and thereby.

Section 5.03 Validity. This Agreement has been, and the other Transaction Agreements will be, when executed and delivered by Purchaser and each Guarantor, as applicable, duly executed and delivered by Purchaser and each Guarantor and, assuming the due execution and delivery of such agreements by the other parties thereto, constitute the legal, valid and binding obligations of Purchaser and each Guarantor enforceable in accordance with their respective terms.

Section 5.04 No Defaults. Except as set forth in Schedule 5.04, neither the execution and delivery of this Agreement nor the other Transaction Agreements nor the consummation of the transactions contemplated hereby and thereby will: (a) violate any provision of the articles of organization or other organizational documents of Purchaser; (b) violate, or conflict with, or constitute a default (or constitute an event that, with notice or lapse of time or both, would constitute a default) under, or give rise to any right of termination, cancellation or acceleration under, any Contract to which Purchaser and/or all or any of the Guarantors is a party or by which Purchaser, all or any of the Guarantors or any of their respective assets may be bound; or (c) violate any Law applicable to Purchaser, all or any of the Guarantors or any of their respective assets.

Section 5.05 Financial Capabilities. On the date hereof Purchaser has, and on the Closing Date Purchaser will have, sufficient funds to pay the Closing Amount and the TAF due at the Closing in accordance with Section 2.05.

Section 5.06 Brokers and Finders. Neither Purchaser nor any of the Guarantors nor any of their respective Representatives has taken any action with respect to any broker or finder that would give rise to any liability on the part of Seller or incurred any liability for any brokerage fees, commissions or finder’s fees in connection with the transactions

contemplated by this Agreement or the agreements contemplated hereby that would give rise to any liability on the part of Seller.

Section 5.07 Consents and Approvals. Except for registrations and approvals required in order for Purchaser to conduct business at the Restaurants following the Effective Time, no consent, approval or authorization of, or declaration, filing or registration with, any Governmental Authority is required by Purchaser or any of the Guarantors in connection with the execution, delivery and performance of this Agreement or the other Transaction Agreements or the consummation of the transactions contemplated hereby and thereby. Purchaser holds (or at the Closing will hold) all sales tax certificates of authority and other tax registration and certificates required to collect and remit sales tax in connection with the operation of the Restaurants.

Section 5.08 Seller Disclosure. Neither Purchaser nor any of the Guarantors has received or relied upon any representation, warranty or guarantee, whether oral or written or express or implied, as to the potential value, volume, profits or success of the Business or any Restaurant. Purchaser and each of the Guarantors have previously received from Seller a copy of the current Wendy’s International, Inc. Franchise Disclosure Document with Acknowledgment of Receipt attached thereto and have signed, dated and delivered to Seller such Acknowledgment of Receipt.

Section 5.09 Knowledge. To the Knowledge of Purchaser, there are no facts or circumstances relating to Purchaser or any of the Guarantors that would materially adversely affect the ability of Purchaser or any of the Guarantors to perform their respective obligations under this Agreement or the other Transaction Agreements.

ARTICLE VI

COVENANTS OF THE PARTIES

Section 6.01 Inspection; Condition of Assets.

(a) Not later than ten (10) Business Days prior to the Closing Date, Seller shall make each of the Restaurants available to Purchaser or Purchaser’s Representatives for Purchaser’s reasonable inspection. Such inspections shall occur on such dates and at such times as Purchaser and Seller may reasonably agree, shall be conducted in a manner such that it does not interfere with the conduct of the Business, and shall be at Purchaser’s sole cost. Seller may, in its sole discretion, have a Representative of Seller accompany Purchaser or Purchaser’s Representative during any such inspection. Purchaser and each Guarantor agree to indemnify and hold Seller harmless from and against any and all Liabilities or Damages resulting from Purchaser’s or Purchaser’s Representatives’ entry into the Restaurants as provided herein.

(b) In the event that, upon Purchaser’s inspection of any Restaurant, Purchaser determines that there is any material deficiency with respect to the operating condition of the Assets located at such Restaurant (other than any such deficiencies identified in the facility assessment reports referenced in Section 6.14(a)), Purchaser shall provide written notice of the alleged deficiencies to Seller within two (2) Business Days of the date of such inspection. If Seller reasonably determines upon its receipt of such a written notice that the aggregate costs of repairing or replacing the deficient Assets that are located at a particular Restaurant identified by Purchaser in such written notice would equal or exceed Five Thousand Dollars ($5,000.00), Seller shall, in its sole discretion, (i) agree to either repair or replace any such deficient Assets, in which case Purchaser shall cooperate with Seller in such repair or replacement, (ii) reduce the Purchase Price to be paid by Purchaser by the reasonable cost of repairing or replacing such deficient Assets, as estimated by Seller, or (iii) terminate this Agreement solely with respect to the affected Restaurant(s). Notwithstanding the foregoing, in the event Seller elects to terminate this Agreement as provided in the immediately-preceding sentence, Purchaser shall have the option to rescind Seller’s termination by delivering written notice to Seller prior to the Closing Date, in which event, (A) Seller’s termination notice shall be null and void, (B) this Agreement shall continue in full force and effect and (C) Seller’s liability to repair or replace the deficient Assets shall not exceed Five Thousand Dollars ($5,000.00). For the avoidance of doubt, (A) if Seller reasonably determines upon its receipt of such a written notice that the aggregate costs of repairing or replacing the deficient Assets that are located at a particular Restaurant identified by Purchaser in such written notice would be less than Five Thousand Dollars ($5,000.00), Seller shall not be responsible for repairing or replacing any such deficient Assets located at such Restaurant and (B) Seller shall not be responsible for repairing or replacing any deficient Assets identified in the facility assessment reports referenced in Section 6.14(a).

(c) Purchaser, at its sole cost and expense, may obtain a title opinion or other information concerning the status of title to the Owned Real Property and Leased Real Property. Not later than five (5) Business Days prior to the Closing Date, Purchaser may notify Seller in writing of any defects that render the title unacceptable (together with copies of all relevant documents related thereto). If Seller reasonably determines upon its receipt of such a written notice that the aggregate costs of correcting the defect with respect to any particular parcel of Owned Real Property or Leased Real Property identified by Purchaser in such written notice would equal or exceed Five Thousand Dollars ($5,000.00), Seller may at its option: (i) agree to correct the defect, in which case Purchaser shall cooperate with Seller in obtaining said correction; (ii) reduce the Purchase Price by the reasonable cost of correcting the defect; or (iii) terminate this Agreement solely with respect to the affected Restaurants. Notwithstanding the foregoing, in the event Seller elects to terminate this Agreement as provided in the immediately-preceding sentence, Purchaser shall have the option to rescind Seller’s termination by delivering written notice to Seller prior to the Closing Date, in which event, (A) Seller’s termination notice

shall be null and void, (B) this Agreement shall continue in full force and effect and (C) Seller’s liability to repair or replace the deficient Assets shall not exceed Five Thousand Dollars ($5,000.00). If Purchaser fails to notify Seller of any claimed title defects by the date set forth above, Purchaser shall be deemed to have approved title. Purchaser shall pay the cost of all searches, title examinations, and title opinions. Purchaser shall have no rights under this Section 6.01(c) unless the amount required to correct the defect with respect to any particular parcel of Owned Real Property or Leased Real Property, as reasonably determined by Seller, equals or exceeds Five Thousand Dollars ($5,000.00), and then only to the extent that Seller does not exercise its option pursuant to subsection (iii) of this Section 6.01(c).

(d) If any of the Assets are destroyed or damaged by fire or other casualty prior to Closing (a “Casualty Damage”), Seller shall notify Purchaser within five (5) days of such event. If Seller reasonably determines that the aggregate costs of repairing or replacing a Casualty Damage at a particular Restaurant would equal or exceed Five Thousand Dollars ($5,000.00), Seller shall, in its sole discretion, (i) agree to either repair or replace any such Casualty Damage, in which case Purchaser shall cooperate with Seller in such repair or replacement, (ii) assign and transfer to Purchaser on the Closing Date, without warranty or recourse, all of Seller’s rights to all of the insurance proceeds paid or payable to Seller on the account of such Casualty Damage, together with the amount of any applicable deductible under Seller’s insurance policy, or (iii) remove the Assets associated with the particular Restaurant from the transaction contemplated under this Agreement and adjust the Purchase Price accordingly by an amount mutually agreed upon between Seller and Purchaser. For the avoidance of doubt, if Seller reasonably determines that the aggregate costs of repairing or replacing a Casualty Damage at a particular Restaurant would be less than Five Thousand Dollars ($5,000.00), Seller shall not be responsible for repairing or replacing any such Casualty Damage at such Restaurant and there will be no adjustment to the Purchase Price.

(e) EXCEPT AS EXPRESSLY SET FORTH HEREIN, PURCHASER AND EACH GUARANTOR ACKNOWLEDGE AND AGREE THAT THE ASSETS ARE BEING CONVEYED AND SOLD ON AN “AS IS,” “WHERE IS,” “WITH ALL FAULTS” BASIS IN RELIANCE ON PURCHASER’S AND EACH OF THE GUARANTOR’S OWN INSPECTIONS AND EXAMINATIONS. EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE IV OF THIS AGREEMENT, PURCHASER AND EACH GUARANTOR ACKNOWLEDGE AND AGREE THAT NEITHER SELLER NOR ANY OF ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES HAS MADE ANY REPRESENTATIONS OR WARRANTIES, DIRECT OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE BUSINESS, THE RESTAURANTS, THE OWNED REAL PROPERTY, THE LEASED REAL PROPERTY OR THE ASSETS OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. FURTHER, PURCHASER AND EACH GUARANTOR ACKNOWLEDGE AND

AGREE THAT NEITHER PURCHASER NOR ANY OF THE GUARANTORS HAS RELIED UPON ANY REPRESENTATIONS OR WARRANTIES (WHETHER EXPRESS OR IMPLIED, INCLUDING FOR A PARTICULAR USE OR PURPOSE AND MERCHANTABILITY) REGARDING THE CONDITION (FINANCIAL OR OTHERWISE) OF THE BUSINESS, THE RESTAURANTS, THE OWNED REAL PROPERTY, THE LEASED REAL PROPERTY OR THE ASSETS, EXCEPT IN EACH CASE FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN ARTICLE IV OF THIS AGREEMENT. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH IN ARTICLE IV OF THIS AGREEMENT, SELLER EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED.

Section 6.02 Transfer Fees. All sales, transfer, recording, escrow, filing and similar taxes and fees (including any penalties or interest) incurred in connection with this Agreement and the transactions contemplated hereby (collectively, the “Transfer Fees”) shall be borne by Purchaser. Purchaser shall timely remit to the appropriate Governmental Authority all Transfer Fees, including any sales or transfer tax that may be due at the Closing. The Parties will use commercially reasonable efforts to assist each other in the filing of all necessary tax returns and other documentation with respect to all such Transfer Fees and, if required by applicable Law, will join in the execution of any such tax returns or other documentation. If any Transfer Fees are based on the amount of the Purchase Price or an allocation of the Purchase Price and the Purchase Price or allocation thereof is adjusted after the Closing pursuant to the terms hereof, such Transfer Fees shall be recalculated using the adjusted amounts and Purchaser shall file any required amendments or other documents with the applicable Governmental Authority and, if additional Transfer Fees are due, Purchaser shall timely remit such additional Transfer Fees to such Governmental Authority. Promptly upon the remittance of any Transfer Fees to the applicable Governmental Authority, Purchaser shall provide evidence to Seller reasonably satisfactory to Seller that such Transfer Fees were properly and timely remitted.

Section 6.03 Expenses. Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be borne by the Party incurring such costs and expenses, whether or not the transactions contemplated hereby are consummated.

Section 6.04 Notices. Between the date hereof and the Closing Date, each Party shall promptly inform the other Parties in writing of the occurrence of any events or the existence of any circumstances, the effect of which would constitute a breach by such Party of any of its covenants or agreements in this Agreement, or which would result in any of its representations or warranties in this Agreement being or becoming untrue or inaccurate.

Section 6.05 Utilities.

(a) Schedule 6.05(a) sets forth a list of certain agreements that Seller has entered into with telecommunications suppliers (collectively, the “Suppliers”) for telecommunications services with respect to the Restaurants identified on Schedule 6.05(a) (such agreements, the “Supply Agreements”). At or prior to the Closing and effective as of the Effective Time, Purchaser shall enter into such agreements and provide such other documentation as may be reasonably requested or required by the Suppliers in order for Purchaser to assume Seller’s and/or its Affiliates’ rights and obligations arising from and after the Effective Time under such Supply Agreements, in each case to the extent related to such Restaurants. In furtherance of the foregoing, if any Supplier determines based on its review of Purchaser’s credit that any deposits, letters of credit, guarantees or other security is required in order for Purchaser to undertake the foregoing assumption, Purchaser agrees to provide, or cause to be provided, such deposits, letters of credit, guarantees or other security as may be reasonably required by the Supplier.

(b) Prior to the Closing, Seller and Purchaser shall (i) notify those utility companies that service the Restaurants that Purchaser shall be responsible for the payment of any and all obligations related to such utility services incurred from and after the Effective Time and (ii) to the extent practicable, cause meters to be read as of the Effective Time (or as soon as reasonably practicable thereafter).

Section 6.06 Cash Safes. Seller and/or one or more of its Affiliates is currently a party to an agreement with Xxxxxx Armored, Inc. and/or one or more of its Affiliates (collectively, the “Armored Car Service Provider”) pursuant to which the Armored Car Service Provider leases to Seller the cash safes located at the Restaurants (the “Cash Safes”) and provides certain cash collection services with respect to the Restaurants (such agreement, the “Cash Services Agreement”). At or prior to the Closing and effective as of the Effective Time, Purchaser shall enter into such agreements and provide such other documentation as may be reasonably requested or required by the Armored Car Service Provider in order for Purchaser to assume Seller’s and/or its Affiliates’ rights and obligations arising from and after the Effective Time under such Cash Services Agreement, in each case to the extent related to the Restaurants. If Purchaser fails to assume such rights and obligations, the Armored Car Service Provider shall be entitled to remove the Cash Safes and Purchaser shall reimburse Seller for the costs and fees charged for such removal and the termination of the Cash Services Agreement between Seller and the Armored Car Service Provider with respect to the Restaurants.

Section 6.07 Conduct of Business Pending the Effective Time. Seller agrees that from the date hereof until the Effective Time, unless otherwise consented to by Purchaser in writing (which consent shall not be unreasonably conditioned, withheld or delayed) or contemplated or permitted by this Agreement, Seller (a) shall conduct the Business (i) in

substantially the same manner as heretofore conducted and (ii) in the ordinary course of business consistent with past practice and (b) shall not enter into any Contracts relating exclusively to the Restaurants except in the ordinary course of business and consistent with past practice.

Section 6.08 Computer/POS Systems.

(a) The application software and programs and wireless network software utilized in any POS system, MWS or TWS located in the Restaurants are licensed to Seller and shall not be transferred to Purchaser. Purchaser agrees that it will install and begin utilizing NCR Aloha POS software supplied by XXX Xxxxxxxxxxx in the POS system in each of the Restaurants no later than ninety (90) days following Closing; provided, however, that if Purchaser encounters issues with the NCR Aloha POS software such that the installation and utilization in each of the Restaurants cannot be accomplished in such ninety (90) day period, then Seller will cooperate with Purchaser to extend such time period as is reasonably necessary to allow Purchaser to accomplish such installation and utilization. Following the Effective Time and until terminated by Seller or Purchaser in accordance with Section 6.08(f), Seller and/or one or more of its Affiliates will provide, or shall cause to be provided, certain support services to Purchaser for the POS systems, MWS and/or TWS located in the Restaurants as of the Effective Time that were provided to the Restaurants in the ordinary course of business prior to the Effective Time (the “Transition Services”), including the following support services for the POS systems: (i) those services provided by Seller’s customer support center in the ordinary course of business prior to the Effective Time; (ii) daily polling of the POS system and preparation of applicable store-level reports at the individual restaurant level; and (iii) implementation of price changes and, to the extent that the applicable product is authorized by Seller to be sold in the applicable Restaurant, product changes specifically requested by Purchaser in writing. With respect to the implementation of such price and product changes, Seller shall use commercially reasonable efforts to implement such changes as promptly as reasonably practicable (taking into consideration the number and scope of changes requested, the number of Restaurants impacted by the change, the availability of Seller’s internal resources and other price and product changes then being implemented by Seller with respect to other System Restaurants).

With respect to the determination and computation of any applicable sales, use, excise, value-added or similar taxes applicable to any transactions processed through the POS system, Seller shall use commercially reasonable efforts to ensure that the POS system is up-to-date regarding existing, relevant tax laws at the Effective Time. Notwithstanding the foregoing, any tax information contained in the POS system or otherwise communicated from Seller to Purchaser is solely for informational purposes, and Purchaser shall bear all liability and responsibility for ensuring the accuracy of any tax calculations applicable to transactions processed through the POS system from and after the Effective Time. Any tax information provided by Seller to

Purchaser by way of the POS system or otherwise shall not be relied upon by Purchaser as tax, legal or business advice nor construed to be a tax opinion.

(b) For the avoidance of doubt, the Transition Services shall not include (i) batteries, expendable POS attachments and other supplies, (ii) reconfiguration of the layouts of, or the addition of any optional or new items to, any POS system, (iii) the preparation of payroll, inventory or weekly profit and loss statements, (iv) any hardware or software maintenance services, or (v) access and reports of sales and time cards for multiple restaurants (i.e., reports that aggregate in information of several restaurants). Purchaser is responsible for contracting with its own maintenance service providers as of the Effective Time to replace any maintenance or other related support that may currently be provided to the Restaurants. Further, other than the Assignable Warranties, warranties and/or service agreements for the maintenance of Equipment (including the cash register system, coin changer, time clock, outside display board and drive-thru audio system) located in the Restaurants will not be transferred hereunder or provided or made available as a Transition Service. Purchaser will be responsible for making arrangements to replace these agreements.

(c) The Transition Services shall be provided by Seller and its Affiliates in accordance with substantially-similar levels of care, diligence and frequency as Seller and its Affiliates use to perform similar services for their own businesses. Seller may, from time to time and without notice to Purchaser, supplement, modify, substitute or otherwise alter the Transition Services provided by it. Purchaser shall promptly reimburse Seller for any out-of-pocket costs or expenses incurred by Seller or its Affiliates in connection with providing any Transition Services or in connection with the termination thereof.

(d) In the event that Seller or its Affiliates is wholly or partially prevented from, or delayed in, providing one or more Transition Services or any such Transition Services are interrupted or suspended by an act of nature, fire, explosion, accident, embargo, epidemic, war, act of terrorism, nuclear disaster, labor strike, work stoppage, civil unrest or riot or disruption of internet access or any other cause beyond its reasonable control, Seller shall not be obligated to deliver the affected Transition Services during such period. Notwithstanding anything to the contrary in this Section 6.08, in no event shall Seller or any of its Affiliates be required to provide any Transition Services hereunder if and to the extent that Seller reasonably determines that the provision of such Transition Services would violate the terms of any Contract or any applicable Law.

(e) In connection with its receipt of Transition Services, Purchaser shall, and shall cause its Affiliates and its and their respective officers, directors, employees and agents to, comply with any applicable policies and procedures established by Seller, from time to time, including its security policies, procedures and requirements. In furtherance of the foregoing, Purchaser shall not, and shall cause its Affiliates and its and their respective Representatives not

to, (i) allow any Person that has not been specifically authorized by Seller to access Seller’s or its Affiliates’ computer systems, software or data (collectively, “Seller’s IT”), (ii) engage in any unauthorized access to, or destruction or alteration of, Seller’s IT or any activity reasonably expected to lead to the foregoing, or (iii) circumvent or attempt to circumvent Seller’s security policies, procedures or requirements.

(f) Purchaser may terminate all, but not less than all, of the Transition Services provided with respect to a particular Restaurant by providing not less than thirty (30) days’ written notice to Seller. Seller may terminate all or any portion of the Transition Services provided with respect to a particular Restaurant by providing not less than thirty (30) days’ written notice to Purchaser, and may immediately terminate all or any portion of the Transition Services provided with respect to any or all of the Restaurants if Purchaser has breached any of its covenants or agreements under Section 6.08(e). Upon the termination of all or any portion of the Transition Services provided with respect to a particular Restaurant for any reason, Purchaser shall promptly cause all software, programs and systems owned by or licensed to Seller or its Affiliates that were made available to Purchaser as part of such terminated Transition Services provided with respect to such Restaurant to be de-installed or de-capacitated.

(g) Notwithstanding anything to the contrary contained herein, as of the Effective Time Purchaser shall comply at its sole cost and expense with all federal, state and local Laws applicable to the disposal or recycling of hardware that may contain hazardous or toxic materials.

(h) Seller will notify its processing agents for credit card, debit card and gift card transactions (“Electronic Transactions”) of the change in ownership of the Restaurants. Following the Effective Time and until such time as Purchaser replaces the software utilized in the POS systems at a Restaurant, unless Purchaser will be using Vantiv/Fifth Third Bank as its processing agent, (i) the integrated credit card terminals, if any, included in such POS systems may not be utilized by Purchaser to process Electronic Transactions, and (ii) in order to process such Electronic Transactions, Purchaser shall be required to (A) install and maintain stand-alone credit card terminals at each of the Restaurants and (B) make arrangements with its own processing agent to begin processing such Electronic Transactions from and after the Effective Time.

Section 6.09 Soft Drink Supply Arrangements.

(a) Coca-Cola North America (“CCNA”), a division of The Coca-Cola Company, or an Affiliate thereof owns the post-mix dispensing equipment located at the Restaurants listed on Schedule 6.09(a). Such equipment may include the dispenser unit (e.g., Legacy, Bevariety, or Freestyle equipment), bag-in-box pumps, racks, carbonators, regulators, lines and fittings. Purchaser must either reach an agreement with the Coca-Cola distributor in

the area to lease or purchase (the purchase is with respect to Legacy or Bevariety equipment only) the equipment or make arrangements to replace the post-mix dispensing equipment prior to the Effective Time. Purchaser acknowledges the requirement to serve Coca-Cola products in the Restaurants.

(b) CCNA or an Affiliate thereof may have provided funding for the menu boards and combo menu boards (collectively the “Menu Boards”) located at the Restaurants. Any obligations or liabilities that arise from and after the Effective Time and that are owed from Seller to CCNA related to the Menu Boards at the Restaurants, including any obligations for unearned or unamortized menu board funding amounts, shall be included in the Assumed Liabilities and shall be assumed by Purchaser effective as of the Effective Time. Promptly after the Closing, (i) upon the request of CCNA, Purchaser shall execute appropriate documentation prepared by CCNA to reflect such assumption by Purchaser and (ii) if Purchaser is not already a party to a marketing agreement with CCNA, Purchaser shall enter into a beverage marketing agreement with CCNA.

(c) CCNA or an Affiliate thereof and Xx Xxxxxx Snapple Group or an Affiliate thereof may have provided advances to Seller based upon the expected volume of Coca-Cola products and Xx Xxxxxx products, respectively, to be purchased in the operation of the Restaurants during the current calendar year. In connection with the reconciliation to be prepared by Seller pursuant to Section 3.03(b), Seller will (i) calculate the amount of such advances that remain unearned as of the Effective Time based upon (A) the purchase of such products prior to the Effective Time in connection with the operation of the Restaurants and (B) the pro rata portion of any fair share charges or similar fees or any related reimbursement payments due to or from CCNA or an Affiliate thereof or Xx Xxxxxx Snapple Group or an Affiliate thereof, as applicable, based upon the portion of the calendar year during which the Restaurants were operated by Seller, and (ii) remit an amount equal to such unearned advances to Purchaser in accordance with Section 3.03(b) (provided that, if Seller has earned more than any such advances, an amount equal to such excess shall be due to Seller from Purchaser in accordance with Section 3.03(b)). Purchaser acknowledges and agrees that any obligations or liabilities to CCNA or an Affiliate thereof or Xx Xxxxxx Snapple Group or an Affiliate thereof in respect of such unearned advances or such fair share charges or similar fees shall be assumed by Purchaser as of the Effective Time and shall be included in the Assumed Liabilities.

Section 6.10 Insurance. Prior to the Closing Date, Purchaser shall procure and maintain in full force and effect in accordance with the terms and conditions of the Franchise Documents, at Purchaser’s expense, the following insurance policy or policies in connection with the Restaurants, or by reason of the construction, operation or occupancy of the Restaurants. Such policy or policies shall be written by an insurance company or companies reasonably satisfactory to Seller and shall include, at a minimum, the following:

(a) Comprehensive general liability insurance including contractual liability;

(b) All-risk property insurance with full replacement-cost limits that are sufficient to satisfy any co-insurance clause contained in the policy;

(c) Business automobile liability insurance, including bodily injury and property damage coverage for all owned, non-owned and hired vehicles;

(d) Product liability coverage;

(e) Commercial umbrella liability insurance; and

(f) Statutory workers’ compensation insurance and employer’s liability insurance, as well as such other disability-benefits-type insurance as may be required by applicable Law in the jurisdictions in which the Business Locations are located.

Purchaser shall provide to Seller at the Closing one or more certificates (the “Insurance Certificate”) evidencing the insurance specified in this Section 6.10 and naming Seller and each of its Affiliates, directors, agents, and employees (as may be specified by Seller) as additional insureds and, in the case of property insurance, such parties shall be named as their interest may appear. All Insurance Certificates shall expressly provide that no less than thirty (30) days’ prior written notice shall be given to Seller in the event of material alteration to, or cancellation of, or non-renewal of the coverages evidenced by such Insurance Certificates.

Section 6.11 Efforts to Complete Transaction. After the date hereof until the Effective Time, subject to the terms and conditions of this Agreement, each Party shall use commercially reasonable efforts to take all actions and to do all things necessary or advisable in order to consummate and make effective the transactions contemplated by this Agreement (including satisfaction, but not waiver, of the Closing conditions set forth in Article VIII and Article IX of this Agreement).

Section 6.12 Sublease for Xxxx 00000. Notwithstanding anything to the contrary herein, the Parties agree that if the prime lease for the real estate to be used in the operation of Unit 11382 is not executed by the applicable landlord and Seller by the Closing Date, then the Sublease relating to Unit 11382 that is executed and delivered at Closing (a) may need be modified to reflect the final executed version of such prime lease and (b) will not be effective until the date that such prime lease is executed and effective.

Section 6.13 Misdirected Payments. To the extent that, after the Effective Time, either Purchaser or Seller shall receive any payments from any third parties (other than the Parties hereto or their respective Affiliates) relating to the Business and attributable to the period prior to (in the case of receipt by Purchaser) or after (in the case of

receipt by Seller) the Effective Time, the Party receiving the same shall promptly make delivery thereof to the applicable Party entitled to such payment.

Section 6.14 Facility Assessment Reports Obligations; Image Activation. Following the Effective Time, in addition to any other work required to be performed under the Franchise Documents, Purchaser, at its own cost and expense, shall, in accordance with the terms and conditions of the Letter of Agreement and the other Franchise Documents:

(a) cause all of the repair and image and equipment upgrade requirements reflected in the facility assessment reports for each of the Restaurants, the cover pages of which are attached as Schedule 6.14, to be made or performed to the reasonable satisfaction of Seller within the applicable time frames specified in such facility assessment reports; provided, however, that a portion of such cost and expense is eligible for reimbursement by Seller in accordance with the terms and conditions of the Letter of Agreement; and

(b) implement and complete Image Activation (as defined in the Letter of Agreement) at each of the Restaurants by the applicable required completion date specified for each such Restaurant in the Letter of Agreement. For the avoidance of doubt, no work to be performed under this Section 6.14 shall qualify under any franchise incentive programs.

Section 6.15 Access to Information. From and after the Effective Time, Purchaser shall afford Seller and its Affiliates and their respective Representatives with reasonable access to all books and records, at reasonable times and on reasonable notice, relating to the Business or Assets as shall be necessary for Seller’s or its Affiliates’ preparation of any federal, state or local tax returns relevant to Seller’s operation of the Restaurants or ownership of the Business or Assets, in each case for any periods prior to the Effective Time.

Section 6.16 Consents and Approvals. Prior to the Closing, Seller shall use commercially reasonable efforts to obtain duly-executed consents from the applicable landlord under the Real Property Leases for the Restaurants referenced on Schedule 4.04. If Seller is unable to obtain any such consent, Seller and Purchaser shall enter into a management agreement in substantially the form attached hereto as Exhibit I whereby Purchaser shall receive the economic benefit of the applicable Restaurant as if Purchaser were the subtenant under such Real Property Lease.

Section 6.17 DTFA Canisters. Purchaser acknowledges that DTFA owns the DTFA Canisters located at the front counters in the Restaurants in which customers can donate coins and cash to DTFA. Seller, its Affiliates and franchisees throughout the United States and Canada support DTFA by having DTFA Canisters in their restaurants and conducting

various promotions throughout the year. While franchisees are not required to have DTFA Canisters in their restaurants, Seller strongly encourages franchisees to do so in support of DTFA. If Purchaser elects not to keep the DTFA Canisters in the Restaurants, Purchaser must notify Seller in writing to coordinate the removal of the DTFA Canisters in the Restaurants and all money therein.

ARTICLE VII

EMPLOYEES

Section 7.01 Termination of Employees. At the Closing but effective as of the Effective Time, except for the Persons listed on Schedule 7.01, Seller will terminate all employees of Seller then employed at the Restaurants and the Additional Restaurant or whose employment is otherwise primarily related to the Business (collectively, the “Employees”). Seller shall be responsible for (a) compliance with all applicable Law with respect to the employment or termination of all such Employees prior to the Effective Time and (b) the employment-related obligations with respect to Employees prior to the Effective Time including any paid time-off and sick or vacation amounts due or granted by Seller to any Employees prior to the Effective Time as well as any amounts due to any Employees resulting from Seller’s existing 401(k) or stock plans; provided, however, that Purchaser shall reimburse Seller for any severance or similar costs incurred by Seller or its Affiliates as a result of the termination of any such Employees.

Section 7.02 Hiring of Seller’s Employees. Except for the Employees listed on Schedule 7.01, prior to the Closing, Purchaser may offer employment, effective as of the Effective Time, to all Employees. All such offers of employment shall be pursuant to Purchaser’s standard employment practices and policies. Purchaser shall be responsible for compliance with applicable Law with respect to the hiring of such Employees and the subsequent employment of the Employees who accept employment with Purchaser (collectively, “Hired Employees”). Purchaser shall be responsible for the employment-related obligations with respect to Hired Employees as of the Effective Time, including compensation for services performed for Purchaser from and after the Effective Time (and related employment and withholding taxes), benefits accrued under any Purchaser-sponsored plan or arrangement of Purchaser covering the Hired Employees from and after the Effective Time and workers’ compensation benefits with respect to injuries or incidents occurring from and after the Effective Time.

ARTICLE VIII

CONDITIONS TO OBLIGATIONS OF SELLER

Each and every obligation of Seller under this Agreement to be performed at the Closing shall be subject to the satisfaction, on or before the Closing Date, of each of the following conditions, unless waived in writing by Seller at its sole discretion.

Section 8.01 Representations and Warranties True. The representations and warranties of Purchaser and each Guarantor contained herein shall, taken as a whole, be true, complete and accurate in all material respects as of the date of this Agreement and at and as of the Closing Date as though such representations and warranties were made at and as of such date (other than representations and warranties made as of another stated date, which representations and warranties shall have been true, complete and accurate in all material respects as of such date).

Section 8.02 Performance. Purchaser and each Guarantor shall have performed, delivered and complied with all agreements, obligations and conditions required by this Agreement to be performed, delivered or complied with by Purchaser and/or such Guarantor on or prior to the Closing Date.

Section 8.03 No Injunction, Etc. On the Closing Date, (a) there shall be no effective Order of any nature issued or threatened by a court or other Governmental Authority of competent jurisdiction directing that any of the transactions provided for herein may not be consummated as so provided or imposing any conditions on the consummation of the transactions contemplated hereby, and (b) no Action shall be pending before any such court or other Governmental Authority seeking such relief.

Section 8.04 Consents and Approvals. Each of the consents or approvals set forth on Schedule 8.04 shall have been obtained and shall be in full force and effect.

Section 8.05 Franchise Approval. Seller shall have granted to Purchaser and each Guarantor the franchise rights to operate the Restaurants, and Purchaser and each Guarantor shall have satisfied all terms, conditions, and requirements pertaining to the granting of such franchise rights.

Section 8.06 Closing Deliverables. Seller shall have received all of the deliverables described in Section 2.07 and Section 2.08.

ARTICLE IX

CONDITIONS TO OBLIGATIONS OF PURCHASER

Each and every obligation of Purchaser under this Agreement to be performed at the Closing shall be subject to the satisfaction, on or before the Closing Date, of each of the following conditions, unless waived in writing by Purchaser at its sole discretion:

Section 9.01 Representations and Warranties True. The representations and warranties of Seller contained herein shall, taken as a whole, be true, complete and accurate in all material respects as of the date of this Agreement and at and as of the Closing Date as though such representations and warranties were made at and as of such date (other than representations and warranties made as of another stated date, which representations and warranties shall have been true, complete and accurate in all material respects as of such date).

Section 9.02 Performance. Seller shall have performed, delivered and complied with all agreements, obligations and conditions required by this Agreement to be performed, delivered or complied with by it on or prior to the Closing Date.

Section 9.03 No Injunction, Etc. On the Closing Date, (a) there shall be no effective Order of any nature issued or threatened by a court or other Governmental Authority of competent jurisdiction directing that any of the transactions provided for herein may not be consummated as so provided or imposing any conditions on the consummation of the transactions contemplated hereby, and (b) no Action shall be pending before any such court or other Governmental Authority seeking such relief.

Section 9.04 Franchise Approval. Seller shall have granted to Purchaser and each Guarantor the franchise rights to operate the Restaurants.

Section 9.05 Closing Deliverables. Purchaser shall have received all of the deliverables described in Section 2.06.

ARTICLE X

SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION

Section 10.01 Survival. The representations, warranties, covenants and agreements made by the Parties in this Agreement shall survive the Closing to the extent provided for in this Section 10.01 (the applicable survival period, the “Survival Period”).

(a) All of the representations and warranties of Seller contained in this Agreement shall survive the Closing for a period of eighteen (18) months following the Closing

Date, except that the representation and warranties of Seller contained in Section 4.11 (Environmental Matters) shall survive the Closing until the expiration of the statute of limitations applicable to the matters covered thereby.

(b) All of the representations and warranties of Purchaser and each Guarantor contained in this Agreement shall survive until the expiration or termination of all Purchaser Franchise Agreements or, if earlier, until the latest date permitted by applicable Law.

(c) All covenants and agreements contained in this Agreement that by their terms are to be performed at or after the Closing shall survive the Closing until fully discharged or, if earlier, the latest date permitted by applicable Law. All other covenants or agreements made by the Parties in this Agreement shall not survive the Closing and shall terminate and expire at the Closing.

(d) Upon the expiration of the applicable Survival Period, the representations, warranties, covenants and agreements made by the Parties in this Agreement shall expire, and all claims for any breach of such representations, warranties, covenants or agreements shall be deemed waived unless a Claims Notice with respect to the breach shall have been given to the breaching Party in accordance with Section 10.05(a) or Section 10.05(b) prior to the expiration of such Survival Period, in which event such representations, warranties, covenants or agreements shall survive to the extent of the Claim referred to in such notice until such Claim has been resolved.

Section 10.02 Agreement of Seller to Indemnify. Subject to the terms and conditions of this Article X, from and after the Closing, Seller hereby agrees to indemnify, defend and hold Purchaser and each Guarantor (collectively, the “Purchaser Indemnified Parties”) harmless from and against all demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses including interest, penalties and attorneys’ fees and expenses (collectively, “Damages”) asserted against, resulting to, imposed upon or incurred by any Purchaser Indemnified Party by reason of or resulting from: (a) the Retained Liabilities; (b) a breach by Seller of any of its representations or warranties contained in Article IV of this Agreement; (c) a breach by Seller of any of its covenants or agreements contained in this Agreement, other than any such covenants or agreements contained in Section 6.08; (d) a breach by Seller of any of its covenants or agreements contained in Section 6.08 to the extent resulting from Seller’s or its Affiliates’ gross negligence or willful misconduct; or (e) the termination by Seller of the employment of any Employees (other than any severance or similar costs resulting from the termination of any such Employees).

Section 10.03 Agreement of Purchaser and Each Guarantor to Indemnify. Subject to the terms and conditions of this Article X, from and after the Closing, Purchaser and each Guarantor, jointly and severally, hereby agree to indemnify, defend and hold

harmless Seller, its Affiliates and their respective Representatives (collectively, the “Seller Indemnified Parties”) from and against all Damages asserted against, resulting to, imposed upon or incurred by any Seller Indemnified Party by reason of or resulting from: (a) the Assumed Liabilities; (b) a breach by Purchaser or any of the Guarantors of any representation or warranty of Purchaser or any of the Guarantors contained in this Agreement; (c) a breach by Purchaser or any of the Guarantors of any covenant or agreement of Purchaser or any of the Guarantors contained in this Agreement; (d) the ownership or use or operation of the Assets or any Restaurant from and after the Effective Time; (e) the employment or termination of employment of any Hired Employees by Purchaser or its Affiliates; or (f) any Transfer Fees.

Section 10.04 Limitation of Liability.

(a) No indemnification by Seller under Section 10.02(b) shall be required to be made:

(i) with respect to Damages resulting from Claims as to which Seller has not received a written Claims Notice in accordance with Section 10.05(a) or Section 10.05(b) within the applicable time period set forth in Section 10.01(a); and

(ii) unless the aggregate amount of Damages sustained by the Purchaser Indemnified Parties with respect to indemnification claims for breaches of representations and warranties made in Article IV of this Agreement which are subject to indemnification by Seller under Section 10.02(b) hereof exceeds an aggregate threshold of One Hundred Forty Six Thousand Dollars ($146,000.00), and then only with respect to the amount in excess of One Hundred Forty Six Thousand Dollars ($146,000.00) in the aggregate.

(b) In no event shall the aggregate liability of Seller for indemnification under Section 10.02(b) exceed One Million Four Hundred Sixty Four Thousand Dollars ($1,464,000.00).

(c) In no event shall the aggregate liability of Seller for indemnification under Section 10.02(d) exceed Five Thousand Dollars ($5,000.00).

Section 10.05 Procedures Relating to Indemnification.

(a) In the event that either a Purchaser Indemnified Party or a Seller Indemnified Party desires to assert a demand, claim or circumstance that, immediately or with the lapse of time, could give rise to a claim (a “Claim”) for indemnification pursuant to this Article X, such Person seeking indemnification (the “Indemnitee”) shall, as promptly as is reasonably practicable after becoming aware of the demand, claim or circumstance, deliver written notice (such notice, a “Claims Notice”) to the Party from whom indemnification is sought (the “Indemnitor”); provided, however, that, except as otherwise provided in Section

10.01 or Section 10.06(a), a failure to give such notice shall not affect the Indemnitee’s right to indemnification hereunder except to the extent that the Indemnitor is actually prejudiced thereby. The Claims Notice shall describe the Claim in reasonable detail and shall indicate the amount (estimated, if necessary) and nature of the Damages, and the method of computation thereof, that has been or may be suffered by the Indemnitee and the provisions of this Agreement in respect of which such right of indemnification is sought or arises.

(b) Promptly after receipt from any third-party by an Indemnitee of a notice of any demand, claim or circumstance that, immediately or with the lapse of time, could give rise to a claim or the commencement (or threatened commencement) of any Action or investigation (a “Third-Party Claim”) that may result in Damages with respect to which the Indemnitee would be entitled to indemnification pursuant to this Article X, the Indemnitee shall deliver a Claims Notice with respect thereto together with copies of any notices or other documents (including any court papers) received by the Indemnitee relating to such Third-Party Claim; provided, however, that, except as otherwise provided in Section 10.01 or Section 10.06(a), a failure to provide such notice shall not affect the Indemnitee’s right to indemnification hereunder except to the extent that the Indemnitor is actually prejudiced thereby (except that the Indemnitor shall not be liable for any expenses incurred during the period in which the Indemnitee failed to provide such notice).

(c) The Indemnitor shall be entitled to settle or assume and control the defense of any Third-Party Claim at its own expense and by its own counsel. If the Indemnitor elects to settle or defend such Third-Party Claim, it shall notify the Indemnitee of its intent to do so, and the Indemnitee shall cooperate in the settlement of, or defense against, such Third-Party Claim including, if appropriate, making any reasonable counterclaim against such third-party or any cross claim or third-party claim against any Person related to such Third-Party Claim. Such cooperation shall also include (i) the retention of records and information that are reasonably relevant to such Third-Party Claim, (ii) promptly supplying the Indemnitor with copies of all papers, documents and evidence in the Indemnitee’s possession or control and such other information within the Indemnitee's knowledge pertinent to such Third-Party Claims, (iii) making employees available on a mutually-convenient basis to provide additional information and explanation of any information or materials provided hereunder and producing at the appropriate place or places, at reasonable times, such witnesses under the Indemnitee's control as may reasonably be requested by the Indemnitor or its Representatives and (iv) promptly providing written notice of all material developments in connection with any such Third-Party Claims. The Indemnitee shall have the right to employ, at its own expense, separate counsel in the defense of any such Third-Party Claim and participate in the defense thereof (it being understood that the Indemnitor shall control such defense). The Indemnitor shall not settle or compromise any Third-Party Claim without the Indemnitee’s prior written consent (which shall not be unreasonably conditioned, withheld or delayed), unless such settlement or compromise

(A) includes a complete and unconditional release of the Indemnitee in respect of such Third-Party Claim, (B) does not subject the Indemnitee to any injunctive relief or other equitable remedy and (C) there is no finding or admission of any violation of Law and does not include a statement or admission of fault or culpability by or on behalf of any Indemnitee.

(d) If the Indemnitor, within a reasonable time after its receipt of any Claims Notice in respect of a Third-Party Claim, fails to notify the Indemnitee of its intent to settle or assume and control the defense of such Third-Party Claim, the Indemnitee shall (upon further notice to the Indemnitor) have the right to undertake the defense of such Third-Party Claim (without impairing or otherwise affecting its rights to obtain indemnification pursuant to this Article X), subject to the right of the Indemnitor to assume the defense of such Third-Party Claim at any time prior to the final settlement or compromise thereof. Whether or not the Indemnitor assumes the defense of a Third-Party Claim, the Indemnitee shall not consent to the entry of any judgment or admit any liability with respect to, or settle, compromise or discharge, such Third-Party Claim without the Indemnitor’s prior written consent (which consent shall not be unreasonably conditioned, withheld or delayed).

Section 10.06 Other Indemnification Limits.

(a) The indemnities provided in this Agreement shall survive the Closing; provided, however, that the indemnities provided under Section 10.02(b), Section 10.02(c), Section 10.02(d), Section 10.03(b) and Section 10.03(c) shall terminate and expire with respect to any representation, warranty, covenant or agreement when such representation, warranty, covenant or agreement terminates pursuant to Section 10.01.

(b) The Parties agree, for themselves and on behalf of their respective Affiliates and their respective Representatives, that the amount of any Damages that are subject to an indemnification obligation under this Article X shall be reduced by any insurance proceeds or indemnity, contribution or other similar payments received by the Indemnitee (after taking into account any deductibles, copayments or other cost sharing arrangements) on account of such Damages. In the event that the Indemnitee subsequently collects any such insurance proceeds or indemnity, contribution or other similar payments in respect of such Damages after receiving any indemnification payments from the Indemnitor under this Article X, such Indemnitee shall promptly pay over to the Indemnitor the amount of such insurance proceeds or indemnity, contribution or other similar payments actually received by the Indemnitee; provided, however, that in no event shall the Indemnitee be required to pay over to the Indemnitor an amount in excess of the amount previously paid by the Indemnitor to or on behalf of the Indemnitee in respect of such Claim.

(c) The Parties shall cooperate with each other with respect to resolving any Claim with respect to which any Indemnitor is or may be obligated to indemnify any

Indemnitee hereunder, including by making commercially reasonable efforts to mitigate or avoid any Damages in connection therewith. In the event that any Party shall fail to make such commercially reasonable efforts to mitigate or avoid any such Damages, then, notwithstanding anything else to the contrary contained herein, the Indemnitor shall not be required to indemnify any Person for any Damages to the extent that such Damages could have reasonably been expected to have been mitigated or avoided had such efforts been made.

(d) Notwithstanding anything to the contrary contained in this Agreement, Seller shall not be liable to any Person (whether in contract, in tort or otherwise) for any consequential, incidental, indirect, special or punitive damages, or any loss of future revenue, income or profits, or any diminution of value or multiples-of-earnings damages relating to a breach or alleged breach hereof, whether or not the possibility of such damages has been disclosed to Seller in advance or could have been reasonably foreseen by Seller.

Section 10.07 Exclusive Remedy. If the Closing occurs, this Article X sets forth the sole and exclusive remedy for any breach, inaccuracy, nonperformance or violation of this Agreement regardless of whether a claim or counterclaim is based in tort, contract or any other legal theory, or arises under law or in equity, except for (a) claims or counterclaims of, or causes of action arising from, fraud and (b) any rights and remedies expressly granted under any Franchise Document or in any other Transaction Agreement. In furtherance of the foregoing, each of the Parties hereby irrevocably waives, from and after the Closing, to the fullest extent permitted under applicable Law, any and all rights, claims, counterclaims and causes of action (other than any claims or counterclaims of, or causes of action arising from, fraud) it may have against the other Parties arising under or based upon this Agreement or the transactions contemplated hereby, except (i) pursuant to the provisions of this Article X and (ii) any rights and remedies explicitly granted under any Franchise Document or in any other Transaction Agreement.

ARTICLE XI

TERMINATION

Section 11.01 Methods of Termination. This Agreement may be terminated prior to the Closing:

(a) By mutual written agreement of the Parties;

(b) By Seller, if the Closing has not occurred by November 25, 2013, provided that a default by Seller under this Agreement is not responsible for the Closing not having occurred;

(c) By Purchaser, if the Closing has not occurred by November 25, 2013, provided that a default by Purchaser or any of the Guarantors under this Agreement is not responsible for the Closing not having occurred;

(d) By Seller in writing if Purchaser or any of the Guarantors shall (i) fail to perform any of their respective covenants or agreements contained herein required to be performed by them prior to the date of such termination, or (ii) breach any of their respective representations or warranties contained herein or if any such representations or warranties become inaccurate, in each case so as to cause a condition to the Closing to be incapable of satisfaction, which failure, breach or inaccuracy is not cured within fifteen (15) days after Seller has notified Purchaser in writing of its intent to terminate this Agreement pursuant to this Section 11.01(d); or

(e) By Purchaser in writing if Seller shall (i) fail to perform any of its covenants or agreements contained herein required to be performed by it prior to the date of such termination, or (ii) breach any of its representations or warranties contained herein or if any such representations or warranties become inaccurate, in each case so as to cause a condition to the Closing to be incapable of satisfaction, which failure, breach or inaccuracy is not cured within fifteen (15) days after Purchaser has notified Seller in writing of its intent to terminate this Agreement pursuant to this Section 11.01(e).

Section 11.02 Effect of Termination. If Seller or Purchaser terminates this Agreement pursuant to Section 11.01, (a) this Agreement shall forthwith become null and void and of no further force and effect, (b) the transactions contemplated by this Agreement shall be abandoned without further action by any Party and (c) all rights and obligations of the Parties hereunder shall terminate without any liability of any Party to any other Party; provided, however, that (i) nothing in this Section 11.02 shall relieve any Party hereto from any liability with respect to any willful or intentional breach of this Agreement prior to such termination and (ii) the provisions of Section 6.03, this Section 11.02 and Article XII (other than Section 12.12) shall survive the termination of this Agreement and shall remain in full force and effect.

ARTICLE XII

MISCELLANEOUS PROVISIONS

Section 12.01 Amendment and Modification. This Agreement may be amended, modified and supplemented only by a written instrument executed by each of the Parties.

Section 12.02 Waivers. No waiver shall be binding on a Party unless executed in writing by the Party making the waiver. No waiver of any of the provisions of this

Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. The failure by any Party to enforce against another Party any term or provision of this Agreement shall not be deemed to be a waiver of such Party’s right to enforce against the other Party the same or any other term or provision of this Agreement in the future.

Section 12.03 Notices. All notices, requests, demands and other communications required or permitted by this Agreement shall be in writing and shall be deemed to have been duly given upon (a) actual delivery, if delivered by personal delivery, or (b) one (1) Business Day after deposit with an overnight courier service for next day delivery, with service prepaid or (c) actual delivery if transmitted by facsimile during normal business hours (8:00 a.m.-5:00 p.m.) for the recipient, provided that the same notice is also deposited on the same day with an overnight courier for next day delivery, with service prepaid:

If to Purchaser or any Guarantor, to:

c/o Cedar Enterprises, Inc.

0000 Xxxxxx Xxxx, Xxxxx 000

Xxxxxxxx, Xxxx 00000

Attention: President

Facsimile No.: (000) 000-0000

or to such other Person or address as Purchaser shall furnish to Seller in writing;

If to Seller, to:

Wendy’s International, Inc.

Xxx Xxxx Xxxxxx Xxxxxxxxx

Xxxxxx, Xxxx 00000

Attention: Legal Department

Facsimile No.: (000) 000-0000

or to such Person or address as Seller shall furnish to Purchaser in writing.

Section 12.04 Assignment. This Agreement, and all of the provisions hereof, shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. No Party may assign this Agreement or any of its rights hereunder or delegate any of its obligations hereunder without the prior written consent of the other Parties; provided that Seller may, without the consent of Purchaser or any Guarantor, assign this Agreement or any of its rights hereunder, or delegate any of its obligations hereunder, to any of its Affiliates (provided that Seller remains principally liable for its obligations hereunder) or to

any successor in interest (whether by purchase, merger, consolidation, conversion or otherwise) to all or substantially all of the business operations and/or assets of Seller. Any attempt or purported assignment or delegation in contravention of the foregoing shall be deemed void ab initio.

Section 12.05 Governing Law. THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND ALL CLAIMS AND DEFENSES ARISING OUT OF OR RELATING TO ANY SUCH TRANSACTION OR THIS AGREEMENT OR THE FORMATION, BREACH, TERMINATION OR VALIDITY OF ANY PART OF THIS AGREEMENT, SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW PRINCIPLES OF SUCH STATE THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION.

Section 12.06 Jurisdiction. Each Party to this Agreement hereby irrevocably and unconditionally: (a) submits itself and its property to the exclusive jurisdiction of any federal or state court sitting in the State of Ohio in any action directly or indirectly arising out of or relating to this Agreement, the transactions contemplated by this Agreement, or the formation, breach, termination or validity of this Agreement and agrees that all claims in respect of any such action shall be heard and determined solely in such court; (b) consents that any such action shall be brought in such court and waives any objection that it may now or hereafter have to the venue or jurisdiction of any such action in such court or that such court is an inconvenient forum for the action and agrees not to assert, plead or claim the same; (c) agrees that the final judgment of such court shall be enforceable in any court having jurisdiction over the relevant Party or any of its assets; (d) agrees that service of process in any such action may be effected by mailing a copy of such process by registered or certified mail (or any substantially-similar form of mail), postage prepaid, to such Party at its address as provided in Section 12.03; and (e) agrees that nothing in this Agreement shall affect the right to effect service of process in any other manner permitted by the applicable rules of procedure.

Section 12.07 Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (a) NO OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (b) IT UNDERSTANDS AND HAS CONSIDERED THE

IMPLICATIONS OF THIS WAIVER, (c) IT MAKES THIS WAIVER VOLUNTARILY AND (d) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS OF THIS SECTION 12.07. ANY PARTY MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.

Section 12.08 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by exchange via facsimile or electronically of signature pages executed by the parties hereto and this Agreement shall be enforceable by the parties hereto upon the execution of the Agreement by each of the parties hereto by the exchange of such signature pages via facsimile or electronically. Any party executing this Agreement by facsimile or electronically as provided herein shall also deliver to the other party an executed original of this Agreement within three (3) Business Days of such facsimile or electronic delivery.

Section 12.09 Interpretation. Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (b) references to the terms Preamble, Recitals, Article, Section, paragraph, Schedule and Exhibit are references to the Preamble, Recitals, Articles, Sections, paragraphs, Schedules and Exhibits to this Agreement unless otherwise specified; (c) references to “$” shall mean U.S. dollars; (d) the word “including” and words of similar import shall mean “including without limitation,” unless otherwise specified; (e) the word “or” shall not be exclusive; (f) the words “herein,” “hereof,” “hereunder” or “hereby” and similar terms are to be deemed to refer to this Agreement as a whole and not to any specific Section; (g) this Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted; (h) if a word or phrase is defined, the other grammatical forms of such word or phrase have a corresponding meaning; (i) references to any statute, listing rule, rule, standard, regulation or other Law include a reference to (A) the corresponding rules and regulations and (B) each of them as amended, modified, supplemented, consolidated, replaced or rewritten from time to time; (j) references to any section of any statute, listing rule, rule, standard, regulation or other Law include any successor to such section; (k) references to any Person include such Person’s predecessors or successors, whether by merger, consolidation, amalgamation, reorganization or otherwise; (l) references to any contract (including this Agreement) or organizational document are to the contract or organizational document as amended, modified, supplemented or replaced from time to time, unless otherwise stated; (m) the table of contents, headings of the Sections and Articles of this Agreement and table of defined terms in Section 1.02 are inserted for convenience only

and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement; and (n) each representation, warranty, covenant, agreement and condition contained in this Agreement and in each of other agreements, documents and instruments contemplated hereby will be deemed to have independent significance.

Section 12.10 Entire Agreement. Except for the Ancillary Agreements, this Agreement, together with the Exhibits and Schedules hereto, and the Confidentiality Agreement set forth the entire understanding among the Parties concerning the subject matter of this Agreement and incorporates all prior negotiations and understandings. There are no covenants, promises, agreements, representations, warranties, conditions or understandings, either oral or written, among the Parties or their respective Affiliates relating to the subject matter of this Agreement, other than those set forth herein or in the Ancillary Agreements. To the extent there is any conflict between this Agreement and the Relationship Agreement, the Relationship Agreement shall control. No alteration, amendment, change or addition to this Agreement shall be binding upon any Party unless in writing and signed by all the Parties. The submission of any unexecuted copy of this Agreement shall not constitute an offer to be legally bound by any provision of the document submitted, either currently or in the future, and no Party shall be bound by this Agreement until it is fully executed and delivered by all Parties.

Section 12.11 Third Parties. Except as specifically set forth or referred to herein, nothing herein expressed or implied is intended or shall be construed to confer upon or give to any Person other than the Parties hereto and their successors or assigns any rights or remedies under or by reason of this Agreement.

Section 12.12 Further Assurances. Subject to the terms and conditions of this Agreement, at any time after the Closing, each Party shall take such further actions and execute such further documents as may be necessary or reasonably requested by another Party in order to effectuate the intent of this Agreement.

Section 12.13 Schedules. Matters reflected in the schedules corresponding to the Sections of Article IV and Article V are not necessarily limited to matters required by this Agreement to be so reflected. Such additional matters are set forth for informational purposes and do not necessarily include other matters of a similar nature. No reference to or disclosure of any item or other matter in any such schedule shall be construed as an admission or indication that such item or other matter is material or that such item or other matter is required to be referred to or disclosed in this Agreement or such schedules. Without limiting the foregoing, no such reference to or disclosure of a possible breach or violation of any Contract or Law shall be construed as an admission or indication that a breach or violation exists or has actually occurred.

Section 12.14 Invalidity. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner adverse to any Party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually-acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible. Nothing in this Section 12.14 shall affect a Party’s right to terminate this Agreement pursuant to Section 11.01 of this Agreement.

Section 12.15 Confidentiality.

(a) Except to the extent (i) inconsistent with the terms of this Agreement, (ii) disclosure or use of any information subject to the terms of the Confidentiality Agreement (defined below) is reasonably necessary for the performance by a Party of any of their respective obligations under this Agreement or (iii) disclosure or use of any information subject to the terms of the Confidentiality Agreement is necessary in connection with the enforcement of any right or remedy relating to this Agreement, the terms of that certain Confidentiality Agreement (the “Confidentiality Agreement”), dated March 21, 2013, by and among Seller, Purchaser, and Cedar Enterprises, Inc. are incorporated into this Agreement by reference and shall continue in full force and effect until the Closing, at which time the confidentiality obligations under the Confidentiality Agreement shall terminate. The Parties agree that as of the date of this Agreement, Xxxxx Xxxxx, Xxxxxx X. Xxxxx, and Xxxxx X. Xxxxx are bound by and subject to all obligations under the Confidentiality Agreement as “Franchisees”, as such term is defined and used in the Confidentiality Agreement. If, for any reason, the transactions contemplated by this Agreement are not consummated, the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms.

(b) Whether or not the Closing occurs, except as otherwise agreed to in writing by the Parties or to the extent necessary to perform its obligations or enforce its rights under this Agreement, each Party hereto shall, and shall cause its respective Affiliates and its and their respective Representatives to, keep confidential the existence and terms of this Agreement and the transactions contemplated hereby; provided, however, that if Seller or its Affiliates determines that it is required by applicable Law or the rules of any stock exchange on which securities of Seller or any of its Affiliates are listed to make any public announcement or disclosure regarding the transactions contemplated hereby, nothing in the Confidentiality

Agreement or this Agreement shall prohibit or restrict Seller and its Affiliates from making any public announcement or disclosure that it determines is necessary or appropriate.

Section 12.16 Guarantee.

(a) To induce Seller to enter into this Agreement, each Guarantor hereby absolutely, unconditionally and irrevocably guarantees to Seller, as a primary obligor and not merely as a surety, the due and punctual performance and observance of, and compliance with, all covenants, agreements, liabilities, representations and warranties of Purchaser under or arising out of this Agreement from and after the date hereof (all such obligations, the “Guaranteed Obligations”). The Guaranteed Obligations hereunder are joint and several. Each Guarantor further agrees that the Guaranteed Obligations may be amended, modified, extended or renewed, in whole or in part, without notice to or further assent from any of the Guarantors, and that each Guarantor will remain bound upon its guarantee notwithstanding any amendment, modification, extension or renewal of any of the Guaranteed Obligations, whether or not any of the foregoing would in any way increase any Guarantor’s obligations hereunder.

(b) The obligations of each Guarantor hereunder shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected, at any time, by: (i) any compromise, waiver or release in respect of any Guaranteed Obligation of Purchaser, by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of Purchaser, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Purchaser or its assets or any resulting release or discharge of any obligation of Purchaser or any of the Guarantors contained in this Agreement; (iii) the existence of any claim, set-off or other rights that any of the Guarantors may have at any time against Seller or Purchaser, whether in connection herewith or otherwise; (iv) any invalidity or unenforceability of this Agreement relating to or against Purchaser for any reason, or any provision of applicable Law purporting to prohibit the payment or performance by Purchaser at the time and place specified herein of any of the Guaranteed Obligations; or (v) any other act or omission to act or delay of any kind by Purchaser, Seller or any other Person, or any other circumstance whatsoever that might, but for the provisions of this paragraph, constitute a legal or equitable discharge or defense of a guarantor or surety. Each Guarantor irrevocably waives presentment, demand, protest and notice, as well as any requirement that at any time any action be taken by any Person against Purchaser or any other Person.

(c) Without limitation to the foregoing, each Guarantor further agrees that its guarantee is a continuing guarantee of payment and performance of the Guaranteed Obligations when due (whether or not any bankruptcy, insolvency or similar proceeding under applicable Law shall have stayed the accrual or collection of any of the Guaranteed Obligations or operated as a discharge thereof) and not of collection, and waives any right to require that

resort be had by Seller to the Purchaser for the collection and performance of the Guaranteed Obligations. If at any time any payment of any Guaranteed Obligation by Purchaser is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Purchaser or otherwise, each Guarantor’s obligations hereunder with respect to such payment shall be reinstated at such time as though such payment had been due but not made at such time.

(d) Each Guarantor shall indemnify and reimburse Seller for any and all costs and expenses (including reasonable attorneys’ fees) incurred by Seller in enforcing any rights under this Section 12.16.

[The remainder of this page is intentionally left blank.]

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the date first above written.

SELLER:

WENDY’S INTERNATIONAL, INC.

By:    /s/ Xxxx X. Xxxxxxx
    Xxxx X. Xxxxxxx
    Senior Vice President and Chief Financial Officer

By:    /s/ Xxxxxx X. Xxxxxxx
    Xxxxxx X. Xxxxxxx
    Senior Vice President - Treasurer & M&A

PURCHASER:

SEAWEND, LTD.

By:    /s/ Xxxxx X. Xxxxx
    Xxxxx X. Xxxxx
    President

GUARANTOR:

CEDAR ENTERPRISES, INC.

By:    /s/ Xxxxx X. Xxxxx
    Name:    Xxxxx X. Xxxxx
    Title: President

GUARANTOR:

/s/ J. Xxxxx Xxxxx
J. XXXXX XXXXX

GUARANTOR:

/s/ Xxxxxx X. Xxxxx
XXXXXX X. XXXXX

GUARANTOR:

/s/ Xxxxx X. Xxxxx
XXXXX X. XXXXX

Signature Page to Asset Purchase Agreement

Exhibits and schedules to the Asset Purchase Agreement have been omitted pursuant to Regulation S-K Item 601(b)(2). The Company agrees to furnish a copy of the omitted exhibits and schedules to the Securities and Exchange Commission upon request.

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ASSET PURCHASE AGREEMENT By and Among WENDY’S INTERNATIONAL, INC., SEAWEND, LTD., CEDAR ENTERPRISES, INC., J. DAVID KARAM, JOSEPH D. KARAM, and JAMES M. KARAM

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