JANUARY 1, 2004, NEITHER
SELLER HAS OR HAD ANY SUBSIDIARY OR AFFILIATE OFFERING OR SELLING FRANCHISES
DOMESTICALLY OR INTERNATIONALLY.
THE SELLERS AND THEIR AFFILIATES ARE THE ONLY
PERSONS OR ENTITIES THAT HAVE OFFERED OR SOLD FRANCHISES FOR THEIR RESPECTIVE
BRANDS SINCE JANUARY 1, 2000.
(B)
SCHEDULE 4.23(B) SETS FORTH A LISTING OF, AND EACH SELLER HAS PROVIDED
BUYER WITH A TRUE AND COMPLETE COPY OF, EACH SELLER'S CURRENTLY EFFECTIVE SELLER
UFOC(S), TOGETHER WITH TRUE AND COMPLETE COPIES OF ALL SELLER UFOCS USED BY SUCH
SELLER SINCE JANUARY 1, 2004 IN CONNECTION WITH THE OFFER AND SALE OF
FRANCHISES.
(C)
SCHEDULE 4.23(C) SETS FORTH A TRUE AND COMPLETE LIST OF ALL FRANCHISE
AGREEMENTS TO WHICH EACH SELLER IS A PARTY, INCLUDING FOR EACH FRANCHISE
AGREEMENT (I) THE NAME, ADDRESS AND TELEPHONE NUMBER OF EACH AND EVERY
FRANCHISEE; (II) THE EFFECTIVE DATES AND EXPIRATION DATES; AND (III) A
DESCRIPTION OF ANY PROTECTED OR EXCLUSIVE TERRITORY.
THERE ARE NO OTHER
CURRENTLY EFFECTIVE FRANCHISE AGREEMENTS RELATING TO THE BRANDS.
EXCEPT AS
NOTED IN SCHEDULE 4.23(C), EACH FRANCHISE AGREEMENT ENTERED IS SUBSTANTIALLY
SIMILAR TO THE FORM OF FRANCHISE AGREEMENT INCORPORATED INTO THE SELLER UFOC
THAT WAS ISSUED TO THE FRANCHISEE
28
CONTEMPORANEOUSLY WITH THE SALE OF SUCH FRANCHISE BY EACH SELLER TO THE
FRANCHISEE.
EACH SELLER HAS AND HAS HAD MADE AVAILABLE TO BUYER TRUE, COMPLETE
AND CORRECT COPIES OF ALL FRANCHISE AGREEMENTS LISTED OR REQUIRED TO BE LISTED
ON SCHEDULE 4.23(C), INCLUDING ALL AMENDMENTS AND ADDENDA THERETO, EXCEPT THOSE
IN RESPECT OF WHICH SELLERS HAVE INDICATED ON SCHEDULE 4.23(C) THAT THE
FRANCHISE AGREEMENT ON FILE IS MISSING.
(D)
FROM AND AFTER THE DATE OF ITS FORMATION, EACH SELLER HAS AND HAS HAD AT
ALL RELEVANT TIMES, THE LIMITED LIABILITY COMPANY POWER AND AUTHORITY AND LEGAL
RIGHT TO ENTER INTO AND CARRY OUT THE TERMS OF EACH FRANCHISE AGREEMENT.
ALL OF
THE FRANCHISE AGREEMENTS ARE VALID, BINDING AND ENFORCEABLE AGAINST THE
FRANCHISEE THEREUNDER IN ACCORDANCE WITH ITS TERMS, SUBJECT TO ANY SUCH
FRANCHISEE'S BANKRUPTCY, INSOLVENCY, RECEIVERSHIP OR SIMILAR PROCEEDING UNDER
STATE OR FEDERAL LAW AND SUBJECT TO ANY EQUITABLE DOCTRINES AND LEGAL
REQUIREMENTS WHICH MAY AFFECT THE ENFORCEABILITY OF THE FRANCHISE AGREEMENTS
AGAINST FRANCHISEES.
EACH SELLER HAS MAINTAINED A STANDARD PRACTIVE OF
REFRAINING FROM THE NEGOTIATION OF THE FRANCHISE AGREEMENTS ON A FRANCHISEE BY
FRANCHISEE BASIS.
(E)
SCHEDULE 4.23(E) IDENTIFIES EACH EXISTING FRANCHISEE THAT (I) IS, TO EACH
SELLER'S KNOWLEDGE, CURRENTLY IN MATERIAL DEFAULT UNDER ANY FRANCHISE AGREEMENT,
WHETHER OR NOT SUCH SELLER HAS NOTIFIED THE FRANCHISEE ABOUT THE DEFAULT; (II)
HAS RECEIVED WITHIN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE OF THIS
AGREEMENT A NOTICE OF DEFAULT FROM EITHER SELLER THAT SUCH FRANCHISEE HAS
INCURRED A DEFAULT UNDER SUCH FRANCHISE AGREEMENT; (III) HAS ON THREE OR MORE
OCCASIONS WITHIN ANY TWELVE (12) MONTH PERIOD RECEIVED NOTICES OF DEFAULT UNDER
A FRANCHISE AGREEMENT; OR (IV) IS A PARTY TO A FRANCHISE AGREEMENT UNDER WHICH
THE FRANCHISE UNIT IS NOT YET OPEN AND OPERATING.
(F)
SCHEDULE 4.23(F) SETS FORTH A TRUE AND COMPLETE