for the fiscal years ended January 3, 2004, January 1, 2005,
December 31, 2005 and December 30, 2006, audited by and accompanied by the
unqualified opinion of KPMG LLP, independent public accountants (the
"Accountants") and (ii) the unaudited consolidated balance sheets and related
statements of income, stockholders' equity and cash flows of the Acquired
Business as of and for the fiscal quarter ended March 31, 2007 (with respect to
which the Accountants have performed SAS 100 reviews), in each case, certified
by the chief financial officer of US Borrowers.
Such financial statements and
all financial statements delivered pursuant to Section 5.01(a), Section 5.01(b)
and Section 5.01(c) since the Original Closing Date have been prepared in
accordance with GAAP and present fairly and accurately the financial condition
and results of operations and cash flows of the Acquired Business as of the
dates and for the periods to which they relate, subject in the case of unaudited
statements, to year-end audit adjustments.
104
(B)
NO LIABILITIES.
EXCEPT AS SET FORTH IN THE FINANCIAL STATEMENTS
REFERRED TO IN SECTION 3.04(A) (INCLUDING THE NOTES THERETO), THERE ARE NO
LIABILITIES OF ANY COMPANY OF ANY KIND, WHETHER ACCRUED, CONTINGENT, ABSOLUTE,
DETERMINED, DETERMINABLE OR OTHERWISE, WHICH COULD REASONABLY BE EXPECTED TO
RESULT IN A MATERIAL ADVERSE EFFECT, AND THERE IS NO EXISTING CONDITION,
SITUATION OR SET OF CIRCUMSTANCES WHICH COULD REASONABLY BE EXPECTED TO RESULT
IN SUCH A LIABILITY, OTHER THAN LIABILITIES UNDER THE LOAN DOCUMENTS AND THE
SENIOR NOTE DOCUMENTS.
SINCE DECEMBER 30, 2006, THERE HAS BEEN NO EVENT,
CHANGE, CIRCUMSTANCE OR OCCURRENCE THAT, INDIVIDUALLY OR IN THE AGGREGATE, HAS
HAD OR COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(C)
FORECASTS.
THE FORECASTS OF FINANCIAL PERFORMANCE OF HOLDINGS AND
ITS SUBSIDIARIES FURNISHED TO THE LENDERS HAVE BEEN PREPARED IN GOOD FAITH BY
THE BORROWERS AND BASED ON ASSUMPTIONS BELIEVED BY THE BORROWERS TO BE
REASONABLE.
SECTION 3.05.
Properties.
(A)
GENERALLY.
EACH COMPANY HAS GOOD TITLE TO, OR VALID LEASEHOLD
INTERESTS IN, ALL ITS PROPERTY MATERIAL TO ITS BUSINESS, FREE AND CLEAR OF ALL
LIENS EXCEPT FOR, PERMITTED LIENS AND MINOR IRREGULARITIES OR DEFICIENCIES IN
TITLE THAT, INDIVIDUALLY OR IN THE AGGREGATE, DO NOT INTERFERE WITH ITS ABILITY
TO CONDUCT ITS BUSINESS AS CURRENTLY CONDUCTED OR TO UTILIZE SUCH PROPERTY FOR
ITS INTENDED PURPOSE.
THE PROPERTY OF THE COMPANIES, TAKEN AS A WHOLE, (I) IS
IN GOOD OPERATING ORDER, CONDITION AND REPAIR (ORDINARY WEAR AND TEAR EXCEPTED),
EXCEPT TO THE EXTENT THAT THE FAILURE TO BE IN SUCH CONDITION COULD NOT
REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT AND
(II) CONSTITUTES ALL THE PROPERTY WHICH IS REQUIRED FOR THE BUSINESS AND
OPERATIONS OF THE COMPANIES AS PRESENTLY CONDUCTED.
(B)
REAL PROPERTY.
(I)
SCHEDULES 8(A) AND 8(B) TO THE PERFECTION CERTIFICATE DATED
THE CLOSING DATE CONTAIN A TRUE AND COMPLETE LIST OF EACH INTEREST IN REAL
PROPERTY (X) OWNED BY ANY COMPANY AS OF THE DATE HEREOF AND DESCRIBES THE TYPE
OF INTEREST THEREIN HELD BY SUCH COMPANY AND