FOR INTERIM FINANCIAL STATEMENTS.
(B)
HOLDINGS AND BORROWERS HAVE HERETOFORE
FURNISHED TO THE LENDERS: AUDITED CONSOLIDATED BALANCE SHEETS AND THE RELATED
STATEMENTS OF INCOME, STOCKHOLDERS' EQUITY AND CASH FLOWS OF THE ACQUIRED
BUSINESS AND ITS CONSOLIDATED SUBSIDIARIES AS OF AND FOR THE FISCAL YEARS ENDED
APRIL 30, 2005 AND APRIL 30, 2004, AUDITED BY AND ACCOMPANIED BY THE OPINION OF
PRICEWATERHOUSECOOPERS, INDEPENDENT PUBLIC ACCOUNTANTS.
SUCH FINANCIAL
STATEMENTS HAVE BEEN PREPARED IN ACCORDANCE WITH GAAP CONSISTENTLY APPLIED AND
PRESENT FAIRLY AND ACCURATELY, IN ALL MATERIAL RESPECTS, THE FINANCIAL CONDITION
AND RESULTS OF OPERATIONS AND CASH FLOWS OF THE ACQUIRED BUSINESS AND ITS
CONSOLIDATED SUBSIDIARIES AS OF SUCH DATES AND FOR SUCH PERIODS.
(C)
EXCEPT AS SET FORTH IN THE FINANCIAL
STATEMENTS DESCRIBED IN SECTION 3.04(A) AND 3.04(B) OR THE SCHEDULES HERETO, AS
OF THE CLOSING DATE, THERE ARE NO LIABILITIES OF ANY COMPANY OF ANY KIND,
WHETHER ACCRUED, CONTINGENT, ABSOLUTE, DETERMINED, DETERMINABLE OR OTHERWISE,
WHICH IF
44
UNPAID COULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE EFFECT, AND
THERE IS NO EXISTING CONDITION, SITUATION OR SET OF CIRCUMSTANCES WHICH COULD
REASONABLY BE EXPECTED TO RESULT IN SUCH A LIABILITY, OTHER THAN LIABILITIES
UNDER THE LOAN DOCUMENTS AND THE TERM LOAN DOCUMENTS.
(D)
HOLDINGS AND BORROWERS HAVE HERETOFORE
DELIVERED TO THE LENDERS UNAUDITED PRO FORMA CONSOLIDATED AND CONSOLIDATING
BALANCE SHEETS AND STATEMENTS OF INCOME, AS WELL AS PRO FORMA EBITDA, AS OF AND
FOR THE TWELVE-MONTH PERIOD ENDED JULY 31, 2005, AFTER GIVING EFFECT TO THE
TRANSACTIONS AS IF THEY HAD OCCURRED ON SUCH DATE.
SUCH PRO FORMA FINANCIAL
STATEMENTS HAVE BEEN PREPARED IN GOOD FAITH BY THE LOAN PARTIES, BASED ON THE
ASSUMPTIONS STATED THEREIN (WHICH ASSUMPTIONS ARE BELIEVED BY THE LOAN PARTIES
ON THE DATE HEREOF AND ON THE CLOSING DATE TO BE REASONABLE), ARE BASED ON THE
BEST INFORMATION AVAILABLE TO THE LOAN PARTIES AS OF THE DATE OF DELIVERY
THEREOF, ACCURATELY REFLECT ALL ADJUSTMENTS REQUIRED TO BE MADE TO GIVE EFFECT
TO THE TRANSACTIONS, AND IN ACCORDANCE WITH REGULATION S-X UNDER THE SECURITIES
ACT, AND PRESENT FAIRLY ON A PRO FORMA BASIS THE ESTIMATED CONSOLIDATED AND
CONSOLIDATING FINANCIAL POSITION AND RESULTS OF OPERATIONS OF HOLDINGS AND
BORROWERS (INCLUDING THE ACQUIRED BUSINESS) AS OF AND FOR SUCH DATES, ASSUMING
THAT THE TRANSACTIONS HAD ACTUALLY OCCURRED AT SUCH DATES, IT BEING RECOGNIZED
BY LENDERS, HOWEVER, THAT PROJECTIONS AS TO FUTURE EVENTS ARE NOT TO BE VIEWED
AS FACTS AND THAT THE ACTUAL RESULTS DURING THE PERIOD OR PERIODS COVERED BY
SAID PROJECTIONS MAY DIFFER FROM THE PROJECTED RESULTS.
(E)
SINCE APRIL 30, 2005 WITH RESPECT TO LENOX
AND ITS SUBSIDIARIES AND SINCE JANUARY 1, 2005 WITH RESPECT TO HOLDINGS AND ITS
SUBSIDIARIES, THERE HAS BEEN NO EVENT, CHANGE OR OCCURRENCE THAT, INDIVIDUALLY
OR IN THE AGGREGATE, HAS HAD OR COULD REASONABLY BE EXPECTED TO RESULT IN A
MATERIAL ADVERSE EFFECT.
SECTION 3.05
PROPERTIES.
(A)
EACH COMPANY HAS GOOD TITLE TO, OR VALID
LEASEHOLD INTERESTS IN, ALL ITS PROPERTY MATERIAL TO ITS BUSINESS, EXCEPT FOR
MINOR IRREGULARITIES OR