heretofore made available to the Lenders its pro
forma consolidated balance sheet as of September 30, 2005, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the applicable pro forma financial
statements, which were simultaneously made available to the Lenders (which
assumptions are believed by the Parent Borrower to be reasonable), (ii) is based
on the best information available to the Parent Borrower after due inquiry,
(iii) accurately reflects all material adjustments necessary to give effect to
the Transactions and (iv) presents fairly, in all material respects, the pro
forma financial position of the Parent Borrower and its consolidated
Subsidiaries as of September 30, 2005, as if the Transactions had occurred on
such date.
(C)
EXCEPT AS DISCLOSED IN THE FINANCIAL STATEMENTS REFERRED TO ABOVE OR THE
NOTES THERETO, AFTER GIVING EFFECT TO THE TRANSACTIONS, NONE OF THE PARENT
BORROWER OR ANY OF THE SUBSIDIARIES HAS, AS OF THE EFFECTIVE DATE, ANY MATERIAL
CONTINGENT LIABILITIES, UNUSUAL LONG-TERM COMMITMENTS OR UNREALIZED LOSSES.
(D)
SINCE JUNE 30, 2005 OR AS OTHERWISE DISCLOSED TO THE AGENTS ON OR BEFORE
THE EFFECTIVE DATE, THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN THE BUSINESS,
OPERATIONS, PROPERTIES, ASSETS, CONDITION (FINANCIAL OR OTHERWISE) OR CONTINGENT
OR OTHER LIABILITIES OF THE PARENT BORROWER AND THE SUBSIDIARIES, TAKEN AS A
WHOLE.
SECTION 3.05. PROPERTIES. (A)
EACH OF THE PARENT BORROWER AND THE SUBSIDIARIES
HAS GOOD TITLE TO, OR VALID LEASEHOLD INTERESTS IN, ALL ITS REAL AND PERSONAL
PROPERTY MATERIAL TO ITS BUSINESS (INCLUDING ITS MORTGAGED PROPERTIES), EXCEPT
FOR MINOR DEFECTS IN TITLE THAT DO NOT INTERFERE WITH ITS ABILITY TO CONDUCT ITS
BUSINESS AS CURRENTLY CONDUCTED OR TO UTILIZE SUCH PROPERTIES FOR THEIR INTENDED
PURPOSES AND OTHER PERMITTED ENCUMBRANCES.
(B)
EACH OF THE PARENT BORROWER AND THE SUBSIDIARIES OWNS, OR IS LICENSED OR
OTHERWISE PERMITTED TO USE, ALL TRADEMARKS, TRADENAMES, COPYRIGHTS, PATENTS AND
OTHER INTELLECTUAL PROPERTY MATERIAL TO THE BUSINESS OF THE PARENT BORROWER AND
THE SUBSIDIARIES, TAKEN AS A WHOLE, AND THE USE THEREOF BY THE PARENT BORROWER
AND THE SUBSIDIARIES DOES NOT INFRINGE UPON THE RIGHTS OF ANY OTHER PERSON,
EXCEPT FOR ANY SUCH INFRINGEMENTS THAT, INDIVIDUALLY OR IN THE AGGREGATE, COULD
NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT.
(C)
SCHEDULE 3.05 SETS FORTH THE ADDRESS OF EACH PARCEL OF REAL PROPERTY THAT
IS OWNED OR LEASED (THE "REAL ESTATE") BY THE PARENT BORROWER OR ANY OF THE
SUBSIDIARIES AS OF THE EFFECTIVE DATE.
(D)
AS OF THE EFFECTIVE DATE, NEITHER THE PARENT BORROWER NOR ANY OF THE
SUBSIDIARIES HAS RECEIVED NOTICE OF, OR HAS KNOWLEDGE OF, ANY PENDING OR
CONTEMPLATED
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CONDEMNATION PROCEEDING AFFECTING ANY MORTGAGED PROPERTY OR ANY SALE OR
DISPOSITION THEREOF IN LIEU OF CONDEMNATION. NEITHER ANY MORTGAGED PROPERTY NOR
ANY INTEREST THEREIN IS SUBJECT TO ANY RIGHT OF FIRST REFUSAL, OPTION OR OTHER
CONTRACTUAL RIGHT TO PURCHASE SUCH MORTGAGED PROPERTY OR