THE PAYMENT OF TRANSACTION FEES AND EXPENSES RELATED TO THE
FOREGOING (THE "PROJECTIONS").
IN THE GOOD FAITH OPINION OF MANAGEMENT OF THE
PARENT, THE ASSUMPTIONS USED IN THE PREPARATION OF THE PROJECTIONS WERE FAIR,
COMPLETE AND REASONABLE WHEN MADE AND CONTINUE TO BE FAIR, COMPLETE AND
REASONABLE AS OF THE DATE HEREOF.
THE PROJECTIONS HAVE BEEN PREPARED IN GOOD
FAITH BY THE EXECUTIVE AND FINANCIAL PERSONNEL OF THE PARENT, ARE COMPLETE AND
REPRESENT A REASONABLE ESTIMATE OF THE FUTURE PERFORMANCE AND FINANCIAL
CONDITION OF THE PARENT AND ITS SUBSIDIARIES, SUBJECT TO THE UNCERTAINTIES AND
APPROXIMATIONS INHERENT IN ANY PROJECTIONS.
(D)
AFTER GIVING EFFECT TO THE CONSUMMATION OF
THE BGS ACQUISITION AND THE TRANSACTIONS CONTEMPLATED HEREBY, THE BORROWER AND
THE CREDIT PARTIES TAKEN AS A WHOLE (I) HAVE CAPITAL SUFFICIENT TO CARRY ON
THEIR BUSINESSES AS CONDUCTED AND AS PROPOSED TO BE CONDUCTED, (II) HAVE ASSETS
WITH A FAIR SALEABLE VALUE, DETERMINED ON A GOING CONCERN BASIS, WHICH, TOGETHER
WITH ANTICIPATED CASH FLOWS, ARE (Y) NOT LESS THAN THE AMOUNT REQUIRED TO PAY
THE PROBABLE LIABILITY ON THEIR EXISTING DEBTS AS THEY BECOME ABSOLUTE AND
MATURED AND (Z) GREATER THAN THE TOTAL AMOUNT OF THEIR LIABILITIES (INCLUDING
IDENTIFIED CONTINGENT LIABILITIES, VALUED AT THE AMOUNT THAT CAN REASONABLY BE
EXPECTED TO BECOME ABSOLUTE AND MATURED IN THEIR ORDINARY COURSE), AND (III) DO
NOT INTEND TO, AND DO NOT BELIEVE THAT THEY WILL, INCUR DEBTS OR LIABILITIES
BEYOND THEIR ABILITY TO PAY SUCH DEBTS AND LIABILITIES AS THEY MATURE IN THEIR
ORDINARY COURSE.
5.12
Ownership of Properties.
Each Credit Party
(i) has good and marketable title to all real property owned by it, (ii) holds
interests as lessee under valid leases in full force and effect with respect to
all material leased real and personal property used in connection with its
business, and (iii) has good title to all of its other material properties and
assets reflected in the most recent financial statements referred to in
Section 5.11(a) (except as sold or otherwise disposed of since the date thereof
in the ordinary course of business), in each case free and clear of all Liens
other than Permitted Liens.
Schedule 5.12(a) lists, as of the Closing Date and
after
67
giving effect to the BGS Acquisition, all Realty of the Credit Parties,
indicating in each case the identity of the owner, the address of the property,
the nature of use of the premises, and whether such interest is a leasehold or
fee ownership interest.
5.13
ERISA.
(A)
EACH CREDIT PARTY AND ITS ERISA AFFILIATES
IS IN COMPLIANCE WITH THE APPLICABLE PROVISIONS OF ERISA, AND EACH PLAN IS AND
HAS BEEN ADMINISTERED IN COMPLIANCE WITH ALL APPLICABLE REQUIREMENTS OF LAW,
INCLUDING, WITHOUT LIMITATION, THE APPLICABLE PROVISIONS OF ERISA AND THE
INTERNAL REVENUE CODE, IN EACH CASE EXCEPT WHERE THE FAILURE SO TO COMPLY,
INDIVIDUALLY OR IN THE AGGREGATE, COULD NOT REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
NO ERISA EVENT (I) HAS OCCURRED WITHIN THE FIVE (5)
YEAR PERIOD PRIOR TO THE