PASSAGE OF TIME OR GIVING OF NOTICE (OR BOTH) WOULD CONSTITUTE A
MATERIAL DEFAULT BY GACCF OF ANY FRANCHISE AGREEMENT UNDER, OR PERMIT
TERMINATION OR RESCISSION OF, ANY SUCH FRANCHISE AGREEMENT.
NEITHER THE
EXECUTION OF THIS AGREEMENT NOR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREIN WOULD RESULT IN A VIOLATION OF OR A DEFAULT UNDER, OR GIVE
RISE TO A RIGHT OF TERMINATION, MODIFICATION, CANCELLATION, RESCISSION OR
ACCELERATION OF ANY OBLIGATION OR LOSS OF
42
MATERIAL BENEFITS UNDER, ANY FRANCHISE AGREEMENT.
NO CONSENT OR APPROVAL OF ANY
FRANCHISEE IS REQUIRED IN CONNECTION WITH THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THE AGREEMENT.
(V)
ALL FRANCHISE AGREEMENTS AND RELATED DOCUMENTS PROVIDED TO BUYER ARE
TRUE, CORRECT AND COMPLETE AND THEY CONSTITUTE ALL OF THE AGREEMENTS BETWEEN
GACCF AND ITS FRANCHISEES AND THERE EXISTS NO OTHER AGREEMENTS, ORAL OR WRITTEN,
BETWEEN GACCF AND ANY FRANCHISEE. THERE ARE NO MATERIAL AGREEMENTS OR SPECIAL
ARRANGEMENTS WITH ANY FRANCHISEE OTHER THAN AS SET FORTH IN THE SELLER UFOCS AND
FRANCHISE AGREEMENTS.
(W)
GACCF'S USE AND ADMINISTRATION OF ADVERTISING CONTRIBUTIONS AND FEES
MADE UNDER THE FRANCHISE AGREEMENTS HAS AT ALL TIMES COMPLIED WITH THE
PROVISIONS OF ALL FRANCHISE AGREEMENTS OR OTHER AGREEMENTS MADE BY GACCF WITH
RESPECT TO THEIR USE OF THE ADVERTISING CONTRIBUTIONS AND FEES, CONFORMS WITH
ANY DESCRIPTIONS OF SUCH ACTIVITIES CONTAINED IN APPLICABLE SELLER UFOCS AND
DOES NOT VIOLATE ANY LEGAL REQUIREMENTS.
(I)
SCHEDULE 4.23(W) SETS FORTH, AS TO
GACCF:
(A) A STATEMENT OF THE AMOUNT OF MARKETING FEES IN RESPECT OF THE TTM
PERIOD; (B) THE AMOUNT OF MARKETING FEES ACTUALLY SPENT BY EACH SELLER DURING
THE TTM PERIOD; AND (C) THE AMOUNT OF ANY RESIDUAL MARKETING FEES BEING HELD BY
EITHER SELLER OR THE DEFICIT IN MARKETING FEES FOR WHICH EITHER SELLER IS TO BE
REIMBURSED FROM FUTURE MARKETING FEES AS OF THE END OF THE TTM PERIOD, AS THE
CASE MAY BE (THE "MARKETING FEES BALANCE"). THE FOREGOING RECONCILIATION OF
MARKETING FEES IS REFERRED TO HEREIN AS THE "MARKETING FEES RECONCILIATION."
(II)
SCHEDULE 4.23(W) SETS FORTH A LISTING OF
EACH CONTRACT ENTERED INTO BY GACCF THAT IS NOT FULLY PERFORMED BY BOTH PARTIES
AS OF THE DATE OF THIS AGREEMENT PURSUANT TO WHICH GACCF HAS OBLIGATED ITSELF TO
THE EXPENDITURE OF MARKETING FEES, ALONG WITH A STATEMENT OF ANY PAYMENTS MADE,
AND REMAINING TO BE MADE, BY GACCF IN ORDER TO COMPLETE ITS PERFORMANCE UNDER
EACH SUCH CONTRACT.
(X)
EXCEPT AS SPECIFIED ON SCHEDULE 4.23(X), THERE IS NO ACTION,
PROCEEDING, OR INVESTIGATION PENDING OR, TO THE KNOWLEDGE OF GACCF, THREATENED
AGAINST OR INVOLVING GACCF WITH RESPECT TO ANY OF ITS DOMESTIC OR INTERNATIONAL
FRANCHISES, AND TO THE KNOWLEDGE OF GACCF, THERE IS NO BASIS FOR ANY SUCH
ACTION, PROCEEDING OR INVESTIGATION EXCEPT FOR ACTIONS, PROCEEDINGS OR
INVESTIGATIONS THAT COULD NOT, IN ANY INDIVIDUAL CASE OR IN THE AGGREGATE,
REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT ON GACCF.
GACCF IS NOT
SUBJECT TO ANY JUDGMENT, ORDER OR DECREE ENTERED IN ANY LAWSUIT OR PROCEEDING
WHICH HAS OR MAY