26, 2003, in the case of
clauses (i) and (ii), reported on by Deloitte & Touche LLP, independent public
accountants, and (iii) its consolidated balance sheet and consolidated
statements of income, stockholders' equity and cash flows as of and for the
fiscal quarter and nine-month period ended September 24, 2004 (and the
comparable period for the prior fiscal year), as reviewed by Deloitte & Touche
LLP, independent public accountants, in accordance with Statement on Auditing
Standards No.
100 and certified by the chief financial officer of the
Borrower.
Such financial statements present fairly, in all material respects,
the financial position and results of operations and cash flows of the Borrower
and the Subsidiaries, on a consolidated basis, as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause
(iii) above.
(B)
THE BORROWER HAS HERETOFORE FURNISHED TO THE
LENDERS ITS PRO FORMA CONSOLIDATED BALANCE SHEET AS OF SEPTEMBER 24, 2004,
PREPARED GIVING EFFECT TO THE TRANSACTIONS AS IF THE TRANSACTIONS HAD OCCURRED
ON SUCH DATE.
SUCH PRO FORMA CONSOLIDATED BALANCE SHEET (I) HAS BEEN PREPARED
IN GOOD FAITH BASED ON THE SAME ASSUMPTIONS USED TO PREPARE THE PRO FORMA
FINANCIAL STATEMENTS INCLUDED IN THE INFORMATION MEMORANDUM (WHICH ASSUMPTIONS
ARE BELIEVED BY THE BORROWER TO BE REASONABLE), (II) IS BASED ON THE BEST
INFORMATION AVAILABLE TO THE BORROWER AFTER DUE INQUIRY, (III) ACCURATELY
REFLECTS ALL ADJUSTMENTS NECESSARY TO GIVE EFFECT TO THE TRANSACTIONS AND
(IV) PRESENTS FAIRLY, IN ALL MATERIAL RESPECTS, THE PRO FORMA FINANCIAL POSITION
OF THE BORROWER AND THE SUBSIDIARIES, ON A CONSOLIDATED BASIS, AS OF THE
RESTATEMENT EFFECTIVE DATE AS IF THE TRANSACTIONS HAD OCCURRED ON SUCH DATE.
(C)
EXCEPT AS DISCLOSED IN THE FINANCIAL
STATEMENTS REFERRED TO ABOVE OR THE NOTES THERETO OR IN THE INFORMATION
MEMORANDUM AND EXCEPT FOR THE DISCLOSED MATTERS, AFTER GIVING EFFECT TO THE
TRANSACTIONS, NONE OF HOLDINGS, THE BORROWER OR THE SUBSIDIARIES HAS, AS OF THE
RESTATEMENT EFFECTIVE DATE, ANY MATERIAL CONTINGENT LIABILITIES, UNUSUAL
LONG-TERM COMMITMENTS OR UNREALIZED LOSSES.
(D)
SINCE DECEMBER 27, 2002, THERE HAS BEEN NO
MATERIAL ADVERSE CHANGE IN THE CONDITION (FINANCIAL OR OTHERWISE), ASSETS,
OPERATIONS OR BUSINESS OF HOLDINGS, THE BORROWER AND THE SUBSIDIARIES, TAKEN AS
A WHOLE.
52
SECTION 3.05.
Properties.
(a)
Each of Holdings, the Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all the real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that do not interfere with its
ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes.
(B)
EACH OF HOLDINGS, THE BORROWER AND THE
SUBSIDIARIES OWNS, OR IS LICENSED TO USE, ALL TRADEMARKS, TRADENAMES,
COPYRIGHTS, PATENTS AND OTHER INTELLECTUAL PROPERTY MATERIAL TO ITS BUSINESS,
AND, TO THE KNOWLEDGE OF HOLDINGS OR THE BORROWER, THE USE THEREOF BY HOLDINGS,
THE BORROWER AND THE SUBSIDIARIES DOES NOT INFRINGE UPON THE RIGHTS