OF TIME OR BOTH) A DEFAULT (OR GIVE RISE TO ANY
RIGHT OF TERMINATION, CANCELLATION, PAYMENT OR ACCELERATION) UNDER, OR RESULT IN
THE CREATION OF ANY ENCUMBRANCE (OTHER THAN A PERMITTED ENCUMBRANCE) UPON ANY OF
THE PROPERTIES OR ASSETS OF EITHER SELLER UNDER ANY OF THE TERMS, CONDITIONS OR
PROVISIONS OF ANY CONTRACT OR ANY OTHER INSTRUMENT OR OBLIGATION TO WHICH EITHER
SELLER IS A PARTY, OR BY WHICH IT OR ANY OF THEIR RESPECTIVE PROPERTIES OR
ASSETS MAY BE BOUND; EXCLUDING FROM THE FOREGOING CLAUSES (B), (C) AND (D)
PERMITS, CONSENTS, APPROVALS, NOTICES AND FILINGS THE ABSENCE OF WHICH, AND
VIOLATIONS, BREACHES, DEFAULTS AND ENCUMBRANCES THE EXISTENCE OF WHICH, HAVE NOT
HAD, AND WOULD NOT REASONABLY BE EXPECTED, INDIVIDUALLY OR IN THE AGGREGATE, TO
HAVE A MATERIAL ADVERSE EFFECT.
19
4.4
Financial Statements.
(A)
THE SELLERS HAVE DELIVERED TO THE BUYER (I) AN AUDITED CONSOLIDATED
BALANCE SHEET OF MFFB AS OF DECEMBER 31, 2005 AND 2006, AND THE RELATED
CONSOLIDATED STATEMENTS OF OPERATIONS, MEMBERS' EQUITY AND CASH FLOWS FOR THE
FISCAL YEARS THEN ENDED, TOGETHER WITH THE REPORT THEREON OF KPMG LLP, MFFB'S
INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS (INCLUDING THE NOTES THERETO,
"FINANCIAL STATEMENTS"), AND (II) AN UNAUDITED CONSOLIDATED BALANCE SHEET OF
MFFB AS OF APRIL 30, 2007 (THE "BALANCE SHEET") AND THE RELATED UNAUDITED
CONSOLIDATED STATEMENTS OF OPERATIONS, MEMBERS' EQUITY AND CASH FLOWS (TOGETHER
WITH THE BALANCE SHEET, THE "INTERIM REPORTS") AS AT AND FOR THE FOUR (4)-MONTH
PERIOD ENDED APRIL 30, 2007.
(B) EXCEPT AS DISCLOSED ON SCHEDULE 4.4(B), NEITHER SELLER HAS ANY MATERIAL
LIABILITIES OR OBLIGATIONS (WHETHER ABSOLUTE, ACCRUED, CONTINGENT OR OTHERWISE
AND WHETHER DUE OR TO BECOME DUE), EXCEPT FOR (I) THOSE LIABILITIES AND
OBLIGATIONS ACCRUED OR DISCLOSED ON THE BALANCE SHEET AND (II) LIABILITIES AND
OBLIGATIONS INCURRED SINCE THE DATE OF THE BALANCE SHEET IN THE ORDINARY COURSE
OF BUSINESS CONSISTENT WITH PAST PRACTICE (NONE OF WHICH ARISE OUT OF A BREACH
OF ANY CONTRACT, TORT, INFRINGEMENT, CLAIM, LAWSUIT OR BREACH OF WARRANTY).
4.5
Real Property.
The Sellers do not own or lease any real property which is
used or intended to be used, or otherwise related to, the Businesses and are not
a party to, or bound by, any Real Property Leases.
4.6
Title to Assets.
Except for Excluded Assets and properties and assets
reflected on the Balance Sheet that have been sold or otherwise disposed of by
the Sellers in the ordinary course of business,
each Seller has good and
marketable title to, or a valid leasehold interest in, all properties and assets
used by such Seller, including, without limitation, all the properties and
assets reflected on the Balance Sheet as being owned by such Seller, free and
clear of all Encumbrances other than Permitted Encumbrances.
All of the
Personal Property is in good operating condition and repair (with the exception
of normal wear and tear), and is free from defects other than minor defects that
do not interfere with the present use thereof in the conduct of normal
operations.
4.7
Sufficiency