AND CASH FLOWS FOR THE FISCAL YEARS THEN ENDED AND THE UNAUDITED COMBINED
BALANCE SHEET OF THE BUSINESS AS AT MARCH 28, 2008 AND THE RELATED STATEMENT OF
INCOME (SUBJECT TO NORMAL YEAR-END ADJUSTMENTS AND THE OMISSION OF FOOTNOTES TO
THE FINANCIAL STATEMENTS) FOR THE PERIOD THEN ENDED (SEPTEMBER 28, 2007 BEING
REFERRED TO HEREIN AS THE "BALANCE SHEET DATE") (THE COMBINED BALANCE SHEET OF
THE BUSINESS AT THE BALANCE SHEET DATE IS HEREINAFTER REFERRED TO AS THE
"BALANCE SHEET"), ARE INCLUDED AS SCHEDULE 3.6(A)(I) OF THE SELLER DISCLOSURE
LETTER AND WERE PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED, EXCEPT AS
DESCRIBED IN SCHEDULE 3.6(A)(II) AND SCHEDULE 3.6(A)(III) OF THE SELLER
DISCLOSURE LETTER.
(B)
EXCEPT AS DESCRIBED IN SCHEDULE 3.6(A)(II) AND SCHEDULE 3.6(A)(III) OF THE
SELLER DISCLOSURE LETTER, AS OF THE DATE OF SUCH FINANCIAL STATEMENTS, THE
COMBINED BALANCE SHEETS OF THE BUSINESS REFERRED TO IN SECTION 3.6(A) FAIRLY
PRESENTED, IN ALL MATERIAL RESPECTS, THE FINANCIAL POSITION OF THE BUSINESS AT
SEPTEMBER 28, 2007, SEPTEMBER 29, 2006, SEPTEMBER 30, 2005 AND MARCH 28, 2008,
RESPECTIVELY, AND THE RELATED STATEMENTS OF INCOME AND CASH FLOWS REFERRED TO IN
SECTION 3.6(A) FAIRLY PRESENTED, IN ALL MATERIAL RESPECTS, THE RESULTS OF
OPERATIONS AND CASH FLOWS OF THE BUSINESS FOR THE PERIODS THEN ENDED.
(C)
THE BUSINESS DOES NOT HAVE ANY LIABILITIES (WHETHER ACCRUED, ABSOLUTE,
CONTINGENT OR OTHERWISE) THAT WOULD BE REQUIRED TO BE SET FORTH ON A
CONSOLIDATED BALANCE SHEET PREPARED IN ACCORDANCE WITH GAAP (OR IN THE NOTES
THERETO), EXCEPT (I) LIABILITIES REFLECTED ON THE BALANCE SHEET OR DISCLOSED IN
THE NOTES THERETO INCLUDED IN THE FINANCIAL STATEMENTS REFERRED TO IN
SECTION 3.6(A), (II) RETAINED LIABILITIES, (III) LIABILITIES INCURRED IN THE
ORDINARY COURSE OF THE BUSINESS AND CONSISTENT WITH PAST PRACTICE SINCE THE
BALANCE SHEET DATE OR WHICH WOULD BE INCLUDED IN CLOSING DATE WORKING CAPITAL,
(IV) LIABILITIES INCURRED IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY, (V) LIABILITIES ARISING FROM PERFORMANCE OBLIGATIONS UNDER ANY CONTRACT
OR OUTSTANDING PURCHASE ORDER, OR (VI) LIABILITIES WHICH WOULD NOT REASONABLY BE
EXPECTED TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL ADVERSE EFFECT.
FOR THE AVOIDANCE OF DOUBT, THIS SECTION 3.6(C) DOES NOT ADDRESS ANY MATTERS
SPECIFICALLY ADDRESSED ELSEWHERE IN ARTICLE III, INCLUDING THOSE MATTERS
ADDRESSED IN SECTIONS 3.10 AND 3.16.
Section 3.7
Absence of Certain Changes.
From the Balance Sheet
Date to the date of this Agreement, there has not occurred a Material Adverse
Effect.
Except as set forth on Schedule 3.7 of the Seller Disclosure Letter,
since the Balance Sheet Date to the date of this Agreement, the Business has
been conducted in all material respects in the ordinary course of business and
consistent with past practice.
From the Balance Sheet Date to the date of this
Agreement, the Asset Selling Entities and the Conveyed Entities have not
suffered any material damage, destruction or other casualty loss (whether or not
covered by insurance) with respect to the Business or any Purchased Assets.
29
SECTION 3.8
NO LITIGATION.
EXCEPT AS SET FORTH ON SCHEDULE