UNDER THIS AGREEMENT AS OF OR PRIOR TO THE CLOSING;
(III)
NO ACTION, SUIT OR PROCEEDING SHALL BE PENDING
BY OR BEFORE ANY GOVERNMENTAL ENTITY SEEKING TO PREVENT OR CHALLENGE THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND NO JUDGMENT,
ORDER, WRIT, STIPULATION, INJUNCTION OR DECREE ENJOINING OR PREVENTING THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT SHALL BE IN
EFFECT;
(IV)
SELLERS SHALL HAVE DELIVERED TO BUYER A
CERTIFICATE TO THE EFFECT THAT EACH OF THE CONDITIONS SPECIFIED IN CLAUSES
(I) THROUGH (III) OF THIS SECTION 9(A) IS SATISFIED;
29
(V)
SELLERS SHALL HAVE OBTAINED ALL THIRD
PARTY CONSENTS AND EITHER A LANDLORD CONSENT AND ESTOPPEL CERTIFICATE OR ANOTHER
ARRANGEMENT AS PROVIDED IN 8(D) OR AS PROVIDED IN THE LAST PARAGRAPH OF
SECTION 1(A) FOR EACH LEASE IN A FORM AND SUBSTANCE SATISFACTORY TO THE PARTIES
AND SHALL HAVE EFFECTED ALL GOVERNMENTAL FILINGS TO BE OBTAINED OR EFFECTED BY
SELLERS;
(vi)
Sellers shall caused to be conducted, and
deliver to Buyer not less than five days prior to the Closing Date, UCC lien
search reports evidencing that there are no liens on the Acquired Assets;
(VII)
THE ACQUIRED ASSETS SHALL BE FREE AND CLEAR OF
ALL SECURITY INTERESTS AND, AS OF THE FEE PROPERTY CLOSING DATE, THE FEE
PROPERTIES SHALL BE FREE AND CLEAR OF ALL TITLE DEFECTS (AS DEFINED IN THE CROSS
OPTION AGREEMENT) AND SECURITY INTERESTS;
(VIII)
BUYER SHALL HAVE RECEIVED (A) SUCH OTHER CUSTOMARY
CERTIFICATES (SUCH AS CERTIFICATES OF GOOD STANDING OF SELLERS IN ITS OR THEIR
JURISDICTIONS OF INCORPORATION AND CERTIFICATES AS TO THE INCUMBENCY OF OFFICERS
AND THE ADOPTION OF AUTHORIZING RESOLUTIONS) AS IT SHALL REASONABLY REQUEST IN
CONNECTION WITH THE CLOSING; AND (B) A TITLE REPORT WITH REGARD TO EACH FEE
PROPERTY REPRESENTING THAT EACH SUCH FEE PROPERTY IS FREE OF SECURITY INTERESTS
AND TITLE DEFECTS AND A CERTIFICATE OF OCCUPANCY WITH REGARD TO EACH STORE
AUTHORIZING THE USE THEREOF AS A PAPA JOHN'S RESTAURANT; AND (C) A BILL OF SALE
AND ASSIGNMENT CONVEYING TITLE TO THE ACQUIRED ASSETS TO BUYER; AND
(IX)
THERE SHALL NOT HAVE OCCURRED ANY CHANGE,
EVENT OR CIRCUMSTANCE THAT, INDIVIDUALLY OR IN THE AGGREGATE, IS MATERIALLY
ADVERSE TO THE BUSINESS, FINANCIAL CONDITION OR RESULTS OF OPERATIONS OF THE
BUSINESS AS A WHOLE (OTHER THAN CHANGES, EVENTS OR CIRCUMSTANCES THAT ARE THE
RESULT OF ECONOMIC FACTORS AFFECTING THE LOCAL OR NATIONAL ECONOMY AS A WHOLE OR
THAT ARE THE RESULT OF FACTORS GENERALLY AFFECTING THE INDUSTRY IN WHICH THE
BUSINESS COMPETES) (A "BUSINESS MATERIAL ADVERSE EFFECT").
(b)
Conditions to Obligations of Sellers.
The
obligation of Sellers to consummate the transactions to be consummated at the
Closing is subject to the satisfaction (or waiver by Sellers) of the following
conditions:
30
(I)
THE REPRESENTATIONS AND WARRANTIES OF
BUYER SET FORTH IN THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL
RESPECTS AS OF THE CLOSING DATE AS IF MADE AS OF THE CLOSING DATE;
(II)
BUYER SHALL HAVE PERFORMED OR COMPLIED WITH
ITS AGREEMENTS