AND ITS SUBSIDIARIES IS
SET FORTH ON SCHEDULE 5.4(B); AND (V) NO STOCK OF BORROWER OR ANY OF ITS
SUBSIDIARIES, OTHER THAN THOSE DESCRIBED ABOVE, ARE ISSUED AND OUTSTANDING.
EXCEPT AS PROVIDED IN SCHEDULE 5.4(B), AS OF THE CLOSING DATE, THERE ARE NO
PREEMPTIVE OR OTHER OUTSTANDING RIGHTS, OPTIONS, WARRANTS, CONVERSION RIGHTS OR
SIMILAR AGREEMENTS OR UNDERSTANDINGS FOR THE PURCHASE OR ACQUISITION FROM
HOLDINGS OR ANY OF ITS SUBSIDIARIES OF ANY STOCK OF ANY SUCH ENTITY.
(C)
BINDING OBLIGATION.
THIS AGREEMENT IS, AND THE OTHER RELATED
TRANSACTIONS DOCUMENTS WHEN EXECUTED AND DELIVERED WILL BE, THE LEGALLY VALID
AND BINDING OBLIGATIONS OF THE APPLICABLE PARTIES THERETO, EACH ENFORCEABLE
AGAINST EACH OF SUCH PARTIES, AS APPLICABLE, IN ACCORDANCE WITH THEIR RESPECTIVE
TERMS EXCEPT AS MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND THE EFFECTS
OF GENERAL PRINCIPLES OF EQUITY.
5.5
FINANCIAL STATEMENTS AND BUDGET.
ALL FINANCIAL STATEMENTS
CONCERNING HOLDINGS, BORROWER AND THEIR RESPECTIVE SUBSIDIARIES WHICH HAVE BEEN
OR WILL HEREAFTER BE FURNISHED TO AGENT PURSUANT TO THIS AGREEMENT, INCLUDING
THE CONSOLIDATED BALANCE SHEETS AT DECEMBER 31, 2004 AND THE RELATED STATEMENT
OF INCOME OF HOLDINGS AND ITS SUBSIDIARIES, FOR THE FISCAL YEAR THEN ENDED,
AUDITED BY ERNST & YOUNG LLP, HAVE BEEN OR WILL BE PREPARED IN ACCORDANCE WITH
GAAP CONSISTENTLY APPLIED (EXCEPT AS DISCLOSED THEREIN) AND DO OR WILL PRESENT
FAIRLY IN ALL MATERIAL RESPECTS THE FINANCIAL CONDITION OF THE ENTITIES COVERED
THEREBY AS AT THE DATES THEREOF AND THE RESULTS OF THEIR OPERATIONS FOR THE
PERIODS THEN ENDED, SUBJECT TO, IN THE CASE OF UNAUDITED FINANCIAL STATEMENTS,
THE ABSENCE OF FOOTNOTES AND NORMAL YEAR-END ADJUSTMENTS.
The Budget delivered on or prior to the Closing Date for Fiscal Year 2005 and
each Budget delivered pursuant to Section 4.5(e) represent or will represent as
of the date thereof the good faith estimate of Borrower and its senior
management concerning the most probable course of its business it being
understood that projections are subject to inherent uncertainties and that
actual results may differ.
5.6
INTELLECTUAL PROPERTY.
EACH OF HOLDINGS AND ITS SUBSIDIARIES
OWNS, IS LICENSED TO USE OR OTHERWISE HAS THE RIGHT TO USE, ALL INTELLECTUAL
PROPERTY USED IN OR NECESSARY FOR THE CONDUCT OF ITS BUSINESS AS CURRENTLY
CONDUCTED EXCEPT WHERE SUCH FAILURE COULD NOT BE REASONABLY EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT AND ALL REGISTERED INTELLECTUAL PROPERTY IS PROPERLY
REGISTERED AND IS IDENTIFIED ON SCHEDULE 5.6.
EXCEPT AS DISCLOSED IN SCHEDULE
5.6, TO THE KNOWLEDGE OF ANY RESPONSIBLE OFFICER OF HOLDINGS OR BORROWER, THE
USE OF SUCH INTELLECTUAL PROPERTY BY HOLDINGS AND ITS SUBSIDIARIES AND THE
CONDUCT OF THEIR BUSINESSES DOES NOT AND HAS NOT BEEN ALLEGED BY ANY PERSON TO
INFRINGE ON THE RIGHTS OF ANY PERSON.
5.7
INVESTIGATIONS, AUDITS, ETC.
AS OF THE CLOSING DATE, EXCEPT AS
SET FORTH ON SCHEDULE 5.7, NEITHER HOLDINGS NOR ANY OF ITS SUBSIDIARIES IS THE
SUBJECT OF ANY REVIEW OR AUDIT BY
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THE IRS OR ANY GOVERNMENTAL INVESTIGATION CONCERNING THE VIOLATION OR