REQUIRED, STOCKHOLDER ACTION OF SUCH LOAN PARTY.
EACH LOAN DOCUMENT TO WHICH EACH LOAN PARTY IS A PARTY HAVE BEEN DULY EXECUTED
AND DELIVERED BY SUCH LOAN PARTY AND IS A LEGAL, VALID AND BINDING OBLIGATION OF
SUCH LOAN PARTY, ENFORCEABLE IN ACCORDANCE WITH ITS TERMS, SUBJECT TO APPLICABLE
BANKRUPTCY, INSOLVENCY OR SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND
TO GENERAL PRINCIPLES OF EQUITY.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS.
THE TRANSACTIONS (A) DO NOT
REQUIRE ANY CONSENT OR APPROVAL OF, REGISTRATION OR FILING WITH, OR ANY OTHER
ACTION BY, ANY GOVERNMENTAL AUTHORITY, EXCEPT SUCH AS HAVE BEEN OBTAINED OR MADE
AND ARE IN FULL FORCE AND EFFECT, EXCEPT FOR FILINGS NECESSARY TO PERFECT LIENS
CREATED PURSUANT TO THE LOAN DOCUMENTS AND THE TERM LOAN SECURITY DOCUMENTS AND
EXCEPT FOR FILINGS IN CONNECTION WITH CONSUMMATING THE MERGER AND FILINGS AS MAY
BE REQUIRED UNDER THE EXCHANGE ACT AND APPLICABLE STOCK EXCHANGE RULES IN
CONNECTION THEREWITH, (B) WILL NOT VIOLATE ANY REQUIREMENT OF LAW APPLICABLE TO
ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES, (C) WILL NOT VIOLATE OR RESULT IN A
DEFAULT UNDER ANY INDENTURE, AGREEMENT OR OTHER INSTRUMENT BINDING UPON ANY LOAN
PARTY OR ANY OF ITS SUBSIDIARIES OR ITS ASSETS, OR (EXCEPT FOR THE MERGER
CONSIDERATION AND THE 2008 NOTES CALL FOR REDEMPTION) GIVE RISE TO A RIGHT
THEREUNDER TO REQUIRE ANY PAYMENT TO BE MADE BY ANY LOAN PARTY OR ANY OF ITS
SUBSIDIARIES, AND (D) WILL NOT RESULT IN THE CREATION OR IMPOSITION OF ANY LIEN
ON ANY ASSET OF ANY LOAN PARTY OR ANY OF ITS SUBSIDIARIES, EXCEPT LIENS CREATED
PURSUANT TO THE LOAN DOCUMENTS AND THE TERM LOAN SECURITY DOCUMENTS; EXCEPT, IN
EACH CASE OTHER THAN WITH RESPECT TO THE CREATION OF LIENS, TO THE EXTENT THAT
ANY SUCH VIOLATION, DEFAULT OR RIGHT, OR ANY FAILURE TO OBTAIN SUCH CONSENT OR
APPROVAL OR TO TAKE ANY SUCH ACTION, WOULD NOT REASONABLY BE EXPECTED TO RESULT
IN A MATERIAL ADVERSE EFFECT.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE.
(A)
THE
BORROWER HAS HERETOFORE FURNISHED TO THE LENDERS ITS CONSOLIDATED BALANCE SHEET
AND STATEMENTS OF EARNINGS, SHAREHOLDERS' EQUITY AND CASH FLOWS (I) AS OF AND
FOR THE FISCAL YEARS ENDED JULY 31, 2004 AND JULY 30, 2005, EACH REPORTED ON BY
DELOITTE & TOUCHE LLP, INDEPENDENT PUBLIC ACCOUNTANTS, AND (II) TO THE EXTENT
POSSIBLE IN THE EXERCISE OF THE BORROWER'S COMMERCIALLY REASONABLE EFFORTS, AS
OF AND FOR EACH SUBSEQUENT FISCAL MONTH ENDED AT LEAST THIRTY (30) DAYS BEFORE
THE CLOSING DATE, CERTIFIED BY ITS CHIEF FINANCIAL OFFICER.
SUCH FINANCIAL
STATEMENTS PRESENT FAIRLY, IN ALL MATERIAL RESPECTS, THE FINANCIAL POSITION AND
RESULTS OF OPERATIONS AND CASH FLOWS OF THE BORROWER AND ITS CONSOLIDATED
SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS IN ACCORDANCE WITH GAAP,
SUBJECT TO THE ABSENCE OF FOOTNOTES AND NORMAL YEAR-END ADJUSTMENTS IN THE CASE
OF THE STATEMENTS REFERRED TO IN CLAUSE (II) ABOVE.
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(B) THE BORROWER HAS HERETOFORE DELIVERED TO THE LENDERS ITS UNAUDITED PRO FORMA
CONSOLIDATED BALANCE SHEET