ended December 31, 2003 and the unaudited interim
consolidated balance sheet as of September 30, 2004 and the related unaudited
interim consolidated statements of income and cash flows of Holdings and its
Subsidiaries for the period ended September 30, 2004, which were prepared in
accordance with US GAAP consistently applied (except as may be indicated in the
notes thereto), fairly present in all material respects the consolidated
financial position of the respective parties as of the dates thereof and the
consolidated results of operations and cash flows for the period then ended (in
the case of the unaudited interim statements, subject to normal year-end
adjustments and the absence of notes).
(B)
HOLDINGS HAS HERETOFORE FURNISHED TO THE
LENDERS A PRO FORMA CONSOLIDATED BALANCE SHEET AS OF SEPTEMBER 30, 2004 PREPARED
GIVING EFFECT TO THE TRANSACTION AS IF THE TRANSACTION HAD OCCURRED ON SUCH
DATE.
SUCH PRO FORMA CONSOLIDATED BALANCE SHEET (I) HAS BEEN PREPARED IN GOOD
FAITH BASED ON THE ASSUMPTIONS BELIEVED BY HOLDINGS AND THE COMPANY TO HAVE BEEN
REASONABLE AT THE TIME MADE AND TO BE REASONABLE AS OF THE RESTATEMENT EFFECTIVE
DATE (IT BEING UNDERSTOOD THAT SUCH ASSUMPTIONS ARE BASED ON GOOD FAITH
ESTIMATES WITH RESPECT TO CERTAIN ITEMS AND THAT THE ACTUAL AMOUNTS OF SUCH
ITEMS ON THE RESTATEMENT EFFECTIVE DATE IS SUBJECT TO VARIATION AND THAT
PURCHASE ACCOUNTING WILL NOT HAVE BEEN APPLIED), (II) SUBJECT TO THE ASSUMPTIONS
AND QUALIFICATIONS DESCRIBED THEREIN, ACCURATELY REFLECTS ALL ADJUSTMENTS
NECESSARY TO GIVE EFFECT TO THE TRANSACTION AND (III) SUBJECT TO THE ASSUMPTIONS
AND QUALIFICATIONS DESCRIBED THEREIN, PRESENTS FAIRLY, IN ALL MATERIAL RESPECTS,
THE PRO FORMA CONSOLIDATED FINANCIAL POSITION OF HOLDINGS AND ITS CONSOLIDATED
SUBSIDIARIES AS OF SEPTEMBER 30, 2004, AS IF THE TRANSACTION HAD OCCURRED ON
SUCH DATE.
SECTION 3.06
No Material Adverse Effect.
Since December 31, 2003 (but after
giving effect to the Transaction) no Material Adverse Effect has occurred.
SECTION 3.07
Title to Properties; Possession Under Leases.
(a)
Each of
Holdings, the Company and the Material Subsidiaries has good and valid record
fee simple title (insurable at ordinary rates) to, or valid leasehold interests
in, or easements or other limited property interests in, all its properties and
assets (including all Mortgaged Properties), except where the failure to have
such title could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
All such properties and assets are free
and clear of Liens, other than Liens expressly permitted by Section 6.02 or
arising by operation of law.
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(B)
EACH OF HOLDINGS, THE COMPANY AND THE
MATERIAL SUBSIDIARIES HAS COMPLIED WITH ALL OBLIGATIONS UNDER ALL LEASES TO
WHICH IT IS A PARTY, EXCEPT WHERE THE FAILURE TO COMPLY WOULD NOT HAVE A
MATERIAL ADVERSE EFFECT, AND ALL SUCH LEASES ARE IN FULL FORCE AND EFFECT,
EXCEPT LEASES IN RESPECT OF WHICH THE FAILURE TO BE IN FULL FORCE AND EFFECT
COULD NOT REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
EACH OF
HOLDINGS, THE COMPANY AND EACH OF THE MATERIAL