to
the Borrower as of the date of delivery thereof, and presents fairly on a pro
forma basis the estimated financial condition of Borrower and its consolidated
Subsidiaries as at July 3, 2004, assuming that the events specified in the
preceding sentence had actually occurred at such date.
(B)
THE AUDITED CONSOLIDATED BALANCE SHEETS OF THE BORROWER AS AT DECEMBER 29,
2001, DECEMBER 28, 2002 AND JANUARY 3, 2004, AND THE RELATED CONSOLIDATED
STATEMENTS OF INCOME AND OF CASH FLOWS FOR THE FISCAL YEARS ENDED ON SUCH DATES,
REPORTED ON BY AND ACCOMPANIED BY AN UNQUALIFIED REPORT FROM KPMG LLP, PRESENT
FAIRLY THE CONSOLIDATED FINANCIAL CONDITION OF THE BORROWER AS AT SUCH DATE, AND
THE CONSOLIDATED RESULTS OF ITS OPERATIONS AND ITS CONSOLIDATED CASH FLOWS FOR
THE RESPECTIVE FISCAL YEARS THEN ENDED.
THE UNAUDITED CONSOLIDATED BALANCE
SHEET OF THE BORROWER AS AT JULY 3, 2004, AND THE RELATED UNAUDITED CONSOLIDATED
STATEMENTS OF INCOME AND CASH FLOWS FOR THE TWENTY-SIX WEEK PERIOD ENDED ON SUCH
DATE, PRESENT FAIRLY THE CONSOLIDATED FINANCIAL CONDITION OF BORROWER AS AT SUCH
DATE, AND THE CONSOLIDATED RESULTS OF ITS OPERATIONS AND ITS CONSOLIDATED CASH
FLOWS FOR THE TWENTY-SIX WEEK PERIOD THEN ENDED (SUBJECT TO NORMAL YEAR-END
AUDIT ADJUSTMENTS).
ALL SUCH FINANCIAL STATEMENTS, INCLUDING THE RELATED
SCHEDULES AND NOTES THERETO, HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP APPLIED
CONSISTENTLY THROUGHOUT THE PERIODS INVOLVED (EXCEPT AS APPROVED BY THE
AFOREMENTIONED FIRM OF ACCOUNTANTS AND DISCLOSED THEREIN AND SUBJECT, IN THE
CASE OF THE FINANCIAL STATEMENTS AS OF AND FOR THE PERIOD ENDED JULY 3, 2004, TO
NORMAL YEAR END AUDIT ADJUSTMENTS AND THE ABSENCE OF NOTES).
THE BORROWER AND
ITS SUBSIDIARIES DO NOT HAVE ANY MATERIAL GUARANTEE OBLIGATIONS, CONTINGENT
41
LIABILITIES AND LIABILITIES FOR TAXES, OR ANY LONG-TERM LEASES OR UNUSUAL
FORWARD OR LONG-TERM COMMITMENTS, INCLUDING, WITHOUT LIMITATION, ANY INTEREST
RATE OR FOREIGN CURRENCY SWAP OR EXCHANGE TRANSACTION OR OTHER OBLIGATION IN
RESPECT OF DERIVATIVES, THAT ARE NOT REFLECTED IN THE MOST RECENT FINANCIAL
STATEMENTS REFERRED TO IN THIS PARAGRAPH.
DURING THE PERIOD FROM JANUARY 3,
2004, TO AND INCLUDING THE DATE HEREOF THERE HAS BEEN NO DISPOSITION BY THE
BORROWER OF ANY MATERIAL PART OF ITS BUSINESS OR PROPERTY.
3.2
No Change.
Since January 3, 2004, there has been no development or event
that has had or could reasonably be expected to have a Material Adverse Effect.
3.3
Corporate Existence; Compliance with Law.
Each of the Borrower and its
Subsidiaries (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) has the corporate or
business trust power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation or business trust and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of Property or the conduct
of its business requires such qualification