RESPECTS THE FINANCIAL CONDITION OF THE PARENT
AND ITS SUBSIDIARIES (ON A CONSOLIDATED BASIS) AS OF THE RESPECTIVE DATES
THEREOF AND THE RESULTS OF OPERATIONS OF THE PARENT AND ITS SUBSIDIARIES (ON A
CONSOLIDATED BASIS) FOR THE RESPECTIVE PERIODS THEN ENDED.
EXCEPT AS FULLY
REFLECTED IN THE MOST RECENT FINANCIAL STATEMENTS REFERRED TO ABOVE AND THE
NOTES THERETO, THERE ARE NO MATERIAL LIABILITIES OR OBLIGATIONS WITH RESPECT TO
THE PARENT AND ITS SUBSIDIARIES OF ANY NATURE WHATSOEVER (WHETHER ABSOLUTE,
CONTINGENT OR OTHERWISE AND WHETHER OR NOT DUE) THAT ARE REQUIRED IN ACCORDANCE
WITH GAAP TO BE REFLECTED IN SUCH FINANCIAL STATEMENTS AND THAT ARE NOT SO
REFLECTED.
(B)
THE PARENT HAS PREPARED, AND HAS HERETOFORE
FURNISHED TO THE ADMINISTRATIVE AGENT A COPY OF, PROJECTED CONSOLIDATED BALANCE
SHEETS AND STATEMENTS OF INCOME AND CASH FLOWS OF THE PARENT AND ITS
SUBSIDIARIES (CONSISTING OF BALANCE SHEETS AND STATEMENTS OF INCOME AND CASH
FLOWS PREPARED BY THE PARENT ON A QUARTERLY BASIS THROUGH FISCAL YEAR 2005 AND
ON AN ANNUAL BASIS THROUGH THE END OF FISCAL YEAR 2010), GIVING EFFECT TO THE
INITIAL EXTENSIONS OF CREDIT MADE UNDER THIS AGREEMENT, THE APPLICATION OF THE
PROCEEDS THEREOF AND 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.
(C)
AFTER GIVING EFFECT TO THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREBY, THE COMPANY 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
79
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