AN AUDITED CONSOLIDATED BALANCE SHEET OF
MFFB AS OF DECEMBER 31, 2005 AND 2006, AND THE RELATED CONSOLIDATED STATEMENTS
OF OPERATIONS, MEMBERS' EQUITY AND CASH FLOWS FOR THE FISCAL YEARS THEN ENDED,
TOGETHER WITH THE REPORT THEREON OF KPMG LLP, ITS INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS (INCLUDING THE NOTES THERETO, "FINANCIAL STATEMENTS"), AND (II) AN
UNAUDITED CONSOLIDATED BALANCE SHEET OF MFFB AS OF SEPTEMBER 29, 2007 (THE
"BALANCE SHEET") AND THE RELATED UNAUDITED CONSOLIDATED STATEMENTS OF
OPERATIONS, MEMBERS' EQUITY AND CASH FLOWS (TOGETHER WITH THE BALANCE SHEET, THE
"INTERIM REPORTS") AS AT AND FOR THE TRAILING THIRTY-NINE (39) WEEK PERIOD ENDED
SEPTEMBER 29, 2007.
(B)
EXCEPT AS DISCLOSED ON SCHEDULE 4.4(B), THERE ARE NO MATERIAL LIABILITIES
OR OBLIGATIONS OF EITHER SELLER (WHETHER ABSOLUTE, ACCRUED, CONTINGENT OR
OTHERWISE AND WHETHER DUE OR TO BECOME DUE), EXCEPT FOR (I) THOSE LIABILITIES
AND OBLIGATIONS ACCRUED OR DISCLOSED ON THE BALANCE SHEET AND (II) LIABILITIES
AND OBLIGATIONS INCURRED SINCE THE DATE OF THE BALANCE SHEET IN THE ORDINARY
COURSE OF BUSINESS CONSISTENT WITH PAST PRACTICE (NONE OF WHICH ARISE OUT OF A
BREACH OF ANY CONTRACT, TORT, INFRINGEMENT, CLAIM, LAWSUIT OR BREACH OF
WARRANTY).
4.5
Real Property.
(A)
OWNED REAL PROPERTY.
SCHEDULE 4.5(A) SETS FORTH A TRUE AND CORRECT LIST
OF EACH PARCEL OF REAL PROPERTY OWNED BY EITHER SELLER AND IDENTIFIED BY OWNER
(THE "OWNED REAL PROPERTY"), INCLUDING THE ADDRESS AND A DESCRIPTION OF EACH
SUCH PARCEL.
EXCEPT AS SET FORTH ON
24
SCHEDULE 4.5(A): (I) THE APPLICABLE SELLER HAS GOOD, VALID AND MARKETABLE FEE
SIMPLE TITLE TO SUCH OWNED REAL PROPERTY, FREE AND CLEAR OF ALL LIENS AND
ENCUMBRANCES AS OF THE DATE HEREOF AND AS OF THE CLOSING DATE, EXCEPT FOR
PERMITTED ENCUMBRANCES; (II) SUCH SELLER IS IN ACTUAL POSSESSION OF EACH SUCH
PARCEL; (III) NEITHER SELLERS NOR MFFB HAVE LEASED OR OTHERWISE GRANTED TO ANY
PERSON THE RIGHT TO USE OR OCCUPY SUCH OWNED REAL PROPERTY OR ANY PORTION
THEREOF; AND (IV) THERE ARE NO OUTSTANDING OPTIONS, RIGHTS OF FIRST OFFER OR
RIGHTS OF FIRST REFUSAL GRANTED BY THE SELLERS, OR, TO THE SELLERS' KNOWLEDGE,
BY ANY OTHER PARTY, TO PURCHASE SUCH OWNED REAL PROPERTY OR ANY PORTION THEREOF
OR INTEREST THEREIN.
NEITHER SELLER IS A PARTY TO ANY AGREEMENT OR OPTION TO
PURCHASE ANY REAL PROPERTY OR INTEREST THEREIN RELATING TO, OR INTENDED TO BE
USED IN THE OPERATION OF THE BUSINESSES.
(B)
LEASED REAL PROPERTY.
SCHEDULE 4.5(B) SETS FORTH A TRUE AND CORRECT LIST
OF EACH PARCEL OF REAL PROPERTY IN WHICH EACH SELLER HOLDS A LEASEHOLD ESTATE
AND IDENTIFIED BY SUCH SELLER (THE "LEASED REAL PROPERTY"), INCLUDING THE
ADDRESS OF EACH SUCH LEASED PROPERTY.
ACCURATE AND CURRENT COPIES OF ALL REAL
PROPERTY LEASES, SUBLEASES, LICENSES OR OTHER OCCUPANCY AGREEMENTS (AND ALL
AMENDMENTS THERETO) SET FORTH ON SCHEDULE 4.5(B) (THE "LEASES") HAVE BEEN
DELIVERED TO PARENT AND BUYER.
EXCEPT AS SET FORTH ON SCHEDULE 4.5(B), WITH
RESPECT TO EACH OF THE LEASES: (I) SUCH LEASE IS VALID, BINDING, ENFORCEABLE AND
IN FULL FORCE AND EFFECT AGAINST SELLER; (II)