INCLUDING ALL SUCH PROPERTIES REFLECTED IN THE MOST
RECENT AUDITED BALANCE SHEET REFERRED TO IN SECTION 5.2(D) OR PURPORTED TO HAVE
BEEN ACQUIRED BY THE COMPANY OR ANY SUBSIDIARY AFTER SAID DATE (EXCEPT AS SOLD
OR OTHERWISE DISPOSED OF IN THE ORDINARY COURSE OF BUSINESS), IN EACH CASE FREE
AND CLEAR OF LIENS PROHIBITED BY THIS AGREEMENT.
ALL LEASES THAT INDIVIDUALLY
OR IN THE AGGREGATE ARE MATERIAL ARE VALID AND SUBSISTING AND ARE IN FULL FORCE
AND EFFECT IN ALL MATERIAL RESPECTS.
(P)
EXISTING DEBT; FUTURE LIENS.
(I)
EXCEPT AS DESCRIBED THEREIN, AS OF THE CLOSING DATE,
SCHEDULE 6.1(P) SETS FORTH A COMPLETE AND CORRECT LIST OF ALL OUTSTANDING DEBT
OF THE COMPANY AND ITS SUBSIDIARIES AS OF AUGUST 27, 2005, SINCE WHICH DATE TO
THE CLOSING DATE THERE HAS BEEN NO MATERIAL CHANGE IN THE AMOUNTS, INTEREST
RATES, SINKING FUNDS, INSTALLMENT PAYMENTS OR MATURITIES OF THE DEBT OF THE
COMPANY OR ITS SUBSIDIARIES.
NEITHER THE COMPANY NOR ANY SUBSIDIARY IS IN
DEFAULT AND NO WAIVER OF DEFAULT IS CURRENTLY IN EFFECT, IN THE PAYMENT OF ANY
PRINCIPAL OR INTEREST ON ANY MATERIAL DEBT OF THE COMPANY OR ANY OF ITS
SUBSIDIARIES, AND NO EVENT OR CONDITION EXISTS WITH RESPECT TO ANY MATERIAL DEBT
OF THE COMPANY OR ANY OF ITS SUBSIDIARIES, THAT WOULD PERMIT (OR
54
that with notice or the lapse of time, or both, would permit) one or more
Persons to cause such Material Debt to become due and payable before its stated
maturity or before its regularly scheduled dates of payment.
(II)
EXCEPT AS DISCLOSED IN SCHEDULE 6.1(P), NEITHER THE COMPANY NOR
ANY OF ITS SUBSIDIARIES HAS AGREED OR CONSENTED TO CAUSE OR PERMIT IN THE FUTURE
(UPON THE HAPPENING OF A CONTINGENCY OR OTHERWISE) ANY OF ITS PROPERTY, WHETHER
NOW OWNED OR HEREAFTER ACQUIRED, TO BE SUBJECT TO A LIEN NOT PERMITTED BY
SECTION 10.1.
(III)
AS OF THE CLOSING DATE, NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES IS A PARTY TO, OR OTHERWISE SUBJECT TO ANY PROVISION CONTAINED IN,
ANY INSTRUMENT EVIDENCING DEBT OF THE COMPANY OR SUCH SUBSIDIARY, ANY AGREEMENT
RELATING THERETO OR ANY OTHER AGREEMENT (INCLUDING, BUT NOT LIMITED TO, ITS
CHARTER OR OTHER ORGANIZATIONAL DOCUMENT) WHICH LIMITS THE AMOUNT OF, OR
OTHERWISE IMPOSES RESTRICTIONS ON THE INCURRING OF, DEBT OF THE COMPANY OR SUCH
SUBSIDIARY, EXCEPT AS SPECIFICALLY INDICATED IN SCHEDULE 6.1(P).
(Q)
LITIGATION; OBSERVANCE OF AGREEMENTS; STATUTES AND ORDERS. (I)
EXCEPT FOR THE FLSA LITIGATION, THERE ARE NO ACTIONS, SUITS, INVESTIGATIONS OR
PROCEEDINGS PENDING OR, TO THE KNOWLEDGE OF THE COMPANY, THREATENED AGAINST OR
AFFECTING THE COMPANY OR ANY SUBSIDIARY OR ANY PROPERTY OF THE COMPANY OR ANY
SUBSIDIARY IN ANY COURT OR BEFORE ANY ARBITRATOR OF ANY KIND OR BEFORE OR BY ANY
GOVERNMENTAL AUTHORITY THAT,
INDIVIDUALLY OR IN THE AGGREGATE, WOULD REASONABLY
BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT; (II) THE FLSA LITIGATION,
INDIVIDUALLY OR IN THE AGGREGATE, WOULD NOT REASONABLY BE EXPECTED TO HAVE A
LIMITED MATERIAL ADVERSE EFFECT AND (III) NEITHER THE COMPANY