character that has had or would reasonably
be expected to have a Material Adverse Effect.
Without limiting the generality
of the foregoing, except as set forth on Schedule 4.15, since December 31, 2006,
each Seller has operated its portion of the Businesses in the ordinary course of
business consistent with past practice, and during such time period, neither
Seller has:
(A)
SOLD, LEASED, TRANSFERRED, OR ASSIGNED ANY OF ITS MATERIAL ASSETS, OTHER
THAN FOR A FAIR CONSIDERATION IN THE ORDINARY COURSE OF BUSINESS;
(B)
ENTERED INTO ANY MATERIAL CONTRACT OUTSIDE THE ORDINARY COURSE OF
BUSINESS;
(C)
ACCELERATED, TERMINATED, MADE MATERIAL MODIFICATIONS TO, OR CANCELLED ANY
MATERIAL CONTRACT IN ANY MATERIAL RESPECT;
(D)
TRANSFERRED, ASSIGNED, OR GRANTED ANY LICENSE OR SUBLICENSE OF ANY RIGHTS
UNDER OR WITH RESPECT TO ANY INTELLECTUAL PROPERTY RIGHT, OTHER THAN TO A
FRANCHISEE PURSUANT TO A FRANCHISE AGREEMENT ENTERED INTO IN THE ORDINARY COURSE
OF BUSINESS;
(E)
MADE ANY CAPITAL EXPENDITURE (OR SERIES OF RELATED CAPITAL EXPENDITURES)
EITHER INVOLVING MORE THAN $5,000, INDIVIDUALLY, OR $15,000, IN THE AGGREGATE,
OR OUTSIDE THE ORDINARY COURSE OF BUSINESS;
(F)
ENGAGED IN ANY SALES OR PROMOTIONAL DISCOUNT OR OTHER SIMILAR ACTIVITIES
WITH CUSTOMERS (INCLUDING, WITHOUT LIMITATION, MATERIALLY ALTERING CREDIT TERMS)
OTHER THAN ANY SUCH ACTIVITIES UNDERTAKEN IN ACCORDANCE WITH THE TERMS OF ITS
CURRENT FRANCHISE AGREEMENTS;
32
(G)
DELAYED OR POSTPONED THE PAYMENT OF ANY ACCOUNTS PAYABLE, OTHER PAYABLES,
EXPENSES OR OTHER LIABILITIES (INCLUDING MARKETING OR PROMOTIONAL EXPENSES), OR
ACCELERATED THE COLLECTION OF OR DISCOUNT ANY GACCF ACCOUNTS RECEIVABLE OR GAM
ACCOUNTS RECEIVABLE OR OTHERWISE ACCELERATED CASH COLLECTIONS OF ANY TYPE OTHER
THAN IN THE ORDINARY COURSE OF BUSINESS AND IN AN AMOUNT NOT GREATER THAN $5,000
IN THE AGGREGATE;
(H)
INCURRED ANY INDEBTEDNESS OR INCURRED OR BECOME SUBJECT TO ANY MATERIAL
LIABILITY, EXCEPT CURRENT LIABILITIES INCURRED IN THE ORDINARY COURSE OF
BUSINESS AND LIABILITIES UNDER CONTRACTS (OTHER THAN LIABILITIES FOR BREACH)
ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS;
(I)
SUFFERED ANY EXTRAORDINARY LOSSES OR WAIVED ANY RIGHTS OF MATERIAL VALUE,
WHETHER OR NOT IN THE ORDINARY COURSE OF BUSINESS;
(J)
EXPERIENCED ANY MATERIAL DAMAGE, DESTRUCTION, OR LOSS (WHETHER OR NOT
COVERED BY INSURANCE) TO ITS PROPERTY;
(K)
BECOME LIABLE FOR ANY DAMAGES IN CONNECTION WITH, OR BECOME OBLIGATED TO
RESCIND OR OTHERWISE MATERIALLY MODIFY, ANY FRANCHISE AGREEMENT; OR
(L)
COMMITTED TO DO ANY OF THE FOREGOING ACTIONS.
4.16
Material Contracts.
(A)
SCHEDULE 4.16(A) CONTAINS A COMPLETE AND CORRECT LIST IDENTIFIED BY THE
SELLERS, AS OF THE DATE OF THIS AGREEMENT, OF THE FOLLOWING CONTRACTS TO WHICH
EITHER SELLER IS A PARTY OR BY WHICH EITHER SELLER IS BOUND (COLLECTIVELY, THE
"MATERIAL CONTRACTS"):
(I)
ANY AGREEMENT (OR GROUP OF RELATED AGREEMENTS) FOR THE LEASE OF
PERSONAL PROPERTY TO OR FROM A PERSON PROVIDING FOR LEASE PAYMENT IN EXCESS OF
$5,000 PER ANNUM;
(II)
ANY AGREEMENT (OR GROUP OF RELATED AGREEMENTS) FOR THE PURCHASE
OR SALE OF RAW MATERIALS, COMMODITIES, SUPPLIES, PRODUCTS, OR OTHER PERSONAL
PROPERTY, OR FOR THE FURNISHING OR RECEIPT OF SERVICES, THE PERFORMANCE OF WHICH
WILL