Related Litigation The party that delivers the Arbitration Notice to the other party shall have the option to also commence concurrent legal proceedings with any state or federal court sitting in Salt Lake County, Utah (“Litigation Proceedings”), subject to the following: (a) the complaint in the Litigation Proceedings is to be substantially similar to the claims set forth in the Arbitration Notice, provided that an additional cause of action to compel arbitration will also be included therein, (b) so long as the other party files an answer to the complaint in the Litigation Proceedings and an answer to the Arbitration Notice, the Litigation Proceedings will be stayed pending an Arbitration Award (or Appeal Panel Award (defined below), as applicable) hereunder, (c) if the other party fails to file an answer in the Litigation Proceedings or an answer in the Arbitration proceedings, then the party initiating Arbitration shall be entitled to a default judgment consistent with the relief requested, to be entered in the Litigation Proceedings, and (d) any legal or procedural issue arising under the Arbitration Act that requires a decision of a court of competent jurisdiction may be determined in the Litigation Proceedings. Any award of the arbitrator (or of the Appeal Panel (defined below)) may be entered in such Litigation Proceedings pursuant to the Arbitration Act.
Litigation and Related Matters The commencement of, or any material development in, any action, suit, proceeding or investigation affecting the Borrower or any of its Subsidiaries or any of their respective properties before any arbitrator or Governmental Authority, (i) in which the amount involved that the Borrower reasonably determines is not covered by insurance or other indemnity arrangement is $50,000,000 or more, (ii) with respect to any Document or any material Indebtedness or preferred stock of the Borrower or any of its Subsidiaries or (iii) which, if determined adversely to the Borrower or any of its Subsidiaries, could reasonably be expected to have a Material Adverse Effect.
Certain Relationships and Related Transactions No relationship, direct or indirect, exists between or among any Partnership Entity, on the one hand, and the directors, officers, stockholders, affiliates, customers or suppliers of any Partnership Entity, on the other hand, that is required to be described in the Preliminary Prospectus or the Prospectus and is not so described.
Organization and Related Matters Buyer is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
Franchise Matters (a) Since June 30, 2003, the Company and its Subsidiaries (i) have maintained records of all franchise activities in which full, true, and complete entries have been made of all material dealings and transactions in relation to their franchise activities, including all offering circulars, Franchise Agreements (as defined below), correspondence with franchisees, written complaints by franchisees, and government audits, (ii) have complied in all material respects with all applicable Laws regarding franchise activities and other franchise-related matters, (iii) have complied with all franchise agreements and other agreements by which the Company or its Subsidiaries directly or indirectly grant any third party franchise rights (whether not such agreement was entered into before or after June 30, 2002, each, a “Franchise Agreement”), (iv) have obtained and maintained in place franchisee agreements which contain provisions requiring the franchisee to (A) indemnify the Company or any Subsidiary, as applicable, with respect to claims relating to the franchisee’s business and (B) to obtain insurance from financially sound and respectable insurers to cover such indemnity, naming the Company as additional insured and loss payee, (v) have timely filed with the applicable Governmental Entities all Uniform Franchise Offering Circulars and other required filings, (vi) each Uniform Franchise Offering Circular delivered to any franchisee, prospective franchisee, or Governmental Entity by the Company or any Subsidiary complied in all material respects as of the date delivered with all requirements of applicable Law, and, when delivered, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and (vii) the Company and its Subsidiaries have accounted for and administered in accordance with the Franchise Agreements and applicable franchise laws all advertising and marketing funds and cooperatives, if any, which the Company and its Subsidiaries administer and into which monies are paid by their franchisees. Section 3.25(a) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date hereof, of all currently effective Franchise Agreements, including the name of the franchisee and the date and expiration date of the applicable Franchise Agreement. The Company has provided the Buyer with true, complete and correct copies of all currently effective Franchise Agreements, including any amendments or modifications thereto, as of the date hereof, and there are no oral agreements, promises or understandings with respect to any currently effective Franchise Agreements.
(b) Except as set forth in Section 3.25(b) of the Company Disclosure Letter:
(i) the royalty rates and required advertising contributions specified in each currently effective Franchise Agreement remain in effect, are being paid when due and have not been reduced, modified, waived, or otherwise affected by any Franchise Agreement “side letter,” modification, amendment, waiver, or suspension, in whole or in part and each currently effective Franchise Agreement is in full force and effect;
(ii) all franchise registrations remain in full force and effect and are not the subject of any existing or threatened action by a Governmental Entity or otherwise intended, in whole or in part, to result in the termination, revocation, modification, suspension, conditioning, or dissolution of any such franchise registration and/or any other circumstance which might or would impair, impede or preclude the Company’s ability routinely to renew or amend (as the case may be) any such franchise registration and/or enter into Franchise Agreements in any jurisdiction;
(iii) there are no written, or to the Knowledge of the Company, threatened, franchisee complaints, threats to initiate litigation or arbitration, or threats to file complaints with a Governmental Entity, whether such threats have been filed either with the Company or any Subsidiary and/or any third party (including any Governmental Entity);
(iv) there exists no extant formal or, to the Knowledge of the Company, informal, complaint, inquiry, investigation, or judicial or administrative action or proceeding, communicated or commenced (as the case may be) by any Governmental Entity, to or against the Company or any Subsidiary regarding its offer and sale of franchises; the administration of its franchise network; advancing or referring to any complaint received from any franchisee; inquiring of or contesting any element of the Company’s franchise program or franchise relationships (including antitrust issues such as predatory pricing or monopolization); and/or, otherwise related to the Company’s or any Subsidiary’s compliance with any franchise Law;
(v) there exists no litigation or other claims asserted by any third party against any of the Company’s franchisees in which the Company or any Subsidiary is a party thereto under any theory, including negligence or “vicarious liability”;
(vi) no supply Contract to which the Company or any Subsidiary is a party may be unilaterally terminated by the subject supplier as a result of this Agreement, the Offer, the Merger or any of the other transactions contemplated by this Agreement, if that supply contract is material to the operation of the Company’s network of franchisees, taken as a whole;
(vii) since December 31, 2004, neither the Company, nor any of its Subsidiaries has refused to renew any Franchise Agreement;
(viii) to the Company’s Knowledge, no franchisee of the Company or any of its Subsidiaries is currently in default in any material respect under any Franchise Agreement;
(ix) since December 31, 2004, neither the Company nor any of its Subsidiaries has terminated any Franchise Agreement; and
(x) the Company may enter into this Agreement and consummate the transactions contemplated hereby without the consent of any Franchisee.
Investigations; Litigation There is no investigation or review pending (or, to the knowledge of Parent, threatened) by any Governmental Entity with respect to Parent or any of its Subsidiaries which would have, individually or in the aggregate, a Parent Material Adverse Effect, and there are no actions, suits, inquiries, investigations or proceedings pending (or, to Parent’s knowledge, threatened) against or affecting Parent or its Subsidiaries, or any of their respective properties at law or in equity before, and there are no orders, judgments or decrees of, or before, any Governmental Entity, in each case which would have, individually or in the aggregate, a Parent Material Adverse Effect.
Governmental Filings; No Violations; Certain Contracts (i) Other than the filing of the Certificate of Merger pursuant to Section 1.6, no notices, reports or other filings are required to be made by the Company with, nor are any consents, registrations, approvals, permits or authorizations required to be obtained by the Company from, any Governmental Entity, in connection with the execution, delivery and performance of this Agreement by the Company and the consummation of the Transactions, or in connection with the continuing operation of the business of the Company and its Subsidiaries following the Effective Time.
(ii) The execution, delivery and performance of this Agreement by the Company do not, and the consummation of the Transactions will not, constitute or result in (A) a breach or violation of, or a default under, the certificate of incorporation or by-laws of the Company or the comparable governing instruments of any of its Subsidiaries, (B) with or without notice, lapse of time or both, a breach or violation of, a termination (or right of termination) or a default under, the creation or acceleration of any obligations under, or the creation of a Lien on any of the assets of the Company or any of its Subsidiaries pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation, whether oral or in writing (each, a “Contract”), binding upon the Company or any of its Subsidiaries or, assuming (solely with respect to performance of this Agreement and consummation of the Transactions) compliance with the matters referred to in Section 5.2(d)(i), under any Law to which the Company or any of its Subsidiaries is subject, or (C) any change in the rights or obligations of any party under any Contract binding on the Company or any of its Subsidiaries. Section 5.2(d)(ii) of the Company Disclosure Letter sets forth a correct and complete list of Contracts that would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act of 1933, as amended, pursuant to which consents or waivers are or may be required prior to consummation of the Transactions (whether or not subject to the exception set forth with respect to clauses (B) and (C) above).
Compliance with Laws; Litigation (a) Each Seller is in compliance with all Laws of or from Governmental Bodies applicable to the Business and the Acquired Assets.
(b) There are no Actions pending or, to Sellers’ Knowledge, threatened, against a Seller or any of its officers, managers, Employees or members in their capacity as such, with respect to the Business, the Acquired Assets or the Assumed Contracts. No Seller is subject to any order (consent or other), judgment, decree, injunction or stipulation of or with any court or other Governmental Body that names such Seller and imposes a material ongoing obligation with respect to the operation of the Business and the Acquired Assets.
(c) There are no Actions pending or, to Seller’s Knowledge, threatened by or against Seller with respect to this Agreement or any of the Transaction Agreements, or in connection with the transactions contemplated hereby or thereby, that would reasonably be expected to prevent or materially delay the consummation by Sellers of the transactions contemplated hereby or thereby or would reasonably be expected individually or in the aggregate to have a Material Adverse Effect.
TRAINING AND RELATED MATTERS The parties recognise that in order to increase the efficiency and productivity of the company a significant commitment to structured training and skill development is required. Accordingly the parties commit themselves to:
a) The parties to this Agreement recognise the importance of the apprenticeship system to the construction industry. It is agreed that every employer party to this Agreement who employs five (5) or more tradespersons in any one classification shall undertake to employ at least one (1) apprentice or make arrangements to host an apprentice from an agreed group apprenticeship scheme. Where an employer does not currently have an apprentice as per this provision, reasonable time shall be allowed to enable the employer to comply with this clause. Further, the parties are committed to a strong ratio of apprentices in the industry. Apprenticeship levels on a specific project may be discussed at the Project Pre-Commencement Conference (refer Clause 16).
b) Providing employees with the opportunity to acquire additional skills within relevant career path structures through appropriate structured training based on nationally endorsed (i.e. Construction Training Australia endorsed) competency standards and curriculum;
c) Actively encouraging employees to seek formal recognition of their skills (i.e. recognition of prior learning); and
d) Using training providers accredited and acceptable to the parties. The CFMEU, MBAV and other employer associations are legitimately engaged in providing training to industry and it is hereby agreed that all parties will properly recognise and accept the validity of nationally accredited training as provided by the other parties.
e) The parties will consult on the development of training programs which are consistent with the following: • Training provided will be consistent with the company’s business requirements, relevant to the work of the employees, consistent with the skills development of each employee and with applicable national competency standards. • Training may be taken either on or off the job with all reasonable steps being taken to conduct training in normal working hours. • If an approved training activity is undertaken during ordinary working hours, the employee/s concerned shall not suffer any loss of pay. • Approved training activities undertaken outside of ordinary hours will be paid at single time or will, at the employee’s option, be taken as time off in lieu of payment. Provided that the scheduling of time off must be consistent with the needs of the business and be by agreement with the company. • Training costs of courses approved by the company will be met by the company. • The company will not be asked to meet the costs of training undertaken by employees which was not approved by the company. • Leave of absence granted pursuant to this clause shall count as service for all purposes of the award and this agreement. • Accredited members of the union will be allowed up to 5 days per year, without loss of pay, to attend trade union educational courses conducted or approved by the union. (see appendix H)
f) The parties to this Agreement recognise the importance of the role that Apprentices/Trainees fulfill within the industry and, more importantly, a role that they will fulfill as trades persons following the conclusion of the indentures. To this end the Victorian Building Industry Consultative Committee will investigate ways of enhancing employment prospects for Apprentice/Trainees. In addition it is agreed that, where appropriate, employers will use their best endeavours to employ Apprentices/Trainees in order to ensure appropriate trade persons levels for the future.
Press Releases and Related Matters Each Credit Party executing this Agreement agrees that neither it nor its Affiliates will in the future issue any press releases or other public disclosure using the name of GE Capital or its affiliates or referring to this Agreement, the other Loan Documents or the Related Transactions Documents without at least 2 Business Days' prior notice to GE Capital and without the prior written consent of GE Capital unless (and only to the extent that) such Credit Party or Affiliate is required to do so under law and then, in any event, such Credit Party or Affiliate will consult with GE Capital before issuing such press release or other public disclosure. Each Credit Party consents to the publication by Agent or any Lender of a tombstone or similar advertising material relating to the financing transactions contemplated by this Agreement. Agent reserves the right to provide to industry trade organizations information necessary and customary for inclusion in league table measurements.
