OF SUCH DATE AND THEIR CONSOLIDATED RESULTS OF OPERATIONS AND
CASH FLOWS FOR SUCH FISCAL YEAR.
(B)
THE UNAUDITED CONSOLIDATED BALANCE SHEET OF THE BORROWER AND ITS
CONSOLIDATED SUBSIDIARIES AS OF JANUARY 31, 2004 AND THE RELATED UNAUDITED
CONSOLIDATED STATEMENTS OF OPERATIONS AND CASH FLOWS FOR THE 26 WEEKS THEN
ENDED, SET FORTH IN THE BORROWERS QUARTERLY REPORT FOR THE FISCAL QUARTER ENDED
JANUARY 31, 2004 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FORM
10-Q, A COPY OF WHICH HAS BEEN DELIVERED TO EACH OF THE LENDERS, FAIRLY PRESENT,
IN CONFORMITY WITH UNITED STATES GENERALLY ACCEPTED ACCOUNTING PRINCIPLES
APPLIED ON A BASIS CONSISTENT WITH THE FINANCIAL STATEMENTS REFERRED TO IN
SUBSECTION (A) OF THIS SECTION, THE CONSOLIDATED FINANCIAL POSITION OF THE
BORROWER AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATE AND THEIR
CONSOLIDATED RESULTS OF OPERATIONS AND CASH FLOWS FOR SUCH 26-WEEK PERIOD
(SUBJECT TO NORMAL YEAR-END ADJUSTMENTS).
35
(C)
SINCE AUGUST 2, 2003 THERE HAS BEEN NO MATERIAL ADVERSE CHANGE IN
THE BUSINESS, FINANCIAL POSITION OR RESULTS OF OPERATIONS OF THE BORROWER AND
ITS CONSOLIDATED SUBSIDIARIES, CONSIDERED AS A WHOLE.
SECTION 4.05.
LITIGATION.
THERE ARE NO ACTIONS, SUITS OR PROCEEDINGS
PENDING AGAINST OR, TO THE KNOWLEDGE OF THE BORROWER, THREATENED AGAINST, THE
BORROWER OR ANY SIGNIFICANT SUBSIDIARY IN ANY COURT OR BEFORE OR BY ANY
GOVERNMENTAL DEPARTMENT, AGENCY OR INSTRUMENTALITY, IN WHICH THERE IS A
REASONABLE POSSIBILITY OF AN ADVERSE DECISION WHICH WOULD MATERIALLY AND
ADVERSELY AFFECT THE FINANCIAL CONDITION OR BUSINESS OF THE BORROWER AND ITS
SUBSIDIARIES, TAKEN AS A WHOLE.
SECTION 4.06.
GOVERNMENTAL AND OTHER APPROVALS.
NO APPROVAL, CONSENT
OR AUTHORIZATION OF OR FILING OR REGISTRATION WITH ANY GOVERNMENTAL AUTHORITY OR
BODY IS NECESSARY FOR THE EXECUTION, DELIVERY OR PERFORMANCE BY THE BORROWER OF
THIS AGREEMENT OR THE NOTES OR FOR THE PERFORMANCE BY THE BORROWER OF ANY OF THE
TERMS OR CONDITIONS HEREOF OR THEREOF.
SECTION 4.07.
FULL DISCLOSURE.
ALL FINANCIAL STATEMENTS AND OTHER
DOCUMENTS FURNISHED BY THE BORROWER TO THE LENDERS IN CONNECTION WITH THIS
AGREEMENT DO NOT AND WILL NOT CONTAIN ANY UNTRUE STATEMENT OF MATERIAL FACT OR
OMIT TO STATE A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
CONTAINED THEREIN NOT MISLEADING.
THE BORROWER HAS DISCLOSED TO THE LENDERS IN
WRITING ANY AND ALL FACTS WHICH MATERIALLY AND ADVERSELY AFFECT THE BUSINESS,
OPERATIONS OR CONDITION, FINANCIAL OR OTHERWISE, OF THE BORROWER AND ITS
SUBSIDIARIES OR THE BORROWER'S ABILITY TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT.
SECTION 4.08.
COMPLIANCE WITH ERISA.
EACH MEMBER OF THE ERISA GROUP
HAS FULFILLED ITS OBLIGATIONS UNDER THE MINIMUM FUNDING STANDARDS OF ERISA AND
THE INTERNAL REVENUE CODE WITH RESPECT TO EACH PLAN AND IS IN COMPLIANCE IN ALL
MATERIAL RESPECTS WITH THE PRESENTLY APPLICABLE PROVISIONS OF ERISA AND THE
INTERNAL REVENUE CODE WITH RESPECT TO EACH PLAN. NO MEMBER OF THE ERISA GROUP
HAS (I) SOUGHT A WAIVER OF THE MINIMUM FUNDING STANDARD UNDER SECTION 412 OF THE
INTERNAL REVENUE CODE IN RESPECT OF ANY PLAN, (II) FAILED TO MAKE ANY
CONTRIBUTION OR