EFFECT.
5.4
ORGANIZATION, POWERS, CAPITALIZATION AND
GOOD STANDING.
(A)
ORGANIZATION AND POWERS.
EACH OF THE
CREDIT PARTIES AND EACH OF THEIR SUBSIDIARIES IS DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION
AND QUALIFIED TO DO BUSINESS IN ALL STATES WHERE SUCH QUALIFICATION IS REQUIRED
EXCEPT WHERE FAILURE TO BE SO QUALIFIED COULD NOT REASONABLY BE EXPECTED TO HAVE
A MATERIAL ADVERSE EFFECT.
AS OF THE CLOSING DATE, THE JURISDICTION OF
ORGANIZATION AND ALL JURISDICTIONS IN WHICH EACH CREDIT PARTY IS QUALIFIED TO DO
BUSINESS ARE SET FORTH ON SCHEDULE 5.4(A).
EACH OF THE CREDIT PARTIES AND EACH
OF THEIR SUBSIDIARIES HAS ALL REQUISITE ORGANIZATIONAL POWER AND AUTHORITY TO
OWN AND OPERATE ITS PROPERTIES, TO CARRY ON ITS BUSINESS AS NOW CONDUCTED AND
PROPOSED TO BE CONDUCTED, TO ENTER INTO EACH LOAN DOCUMENT TO WHICH IT IS A
PARTY AND TO INCUR THE OBLIGATIONS, GRANT LIENS AND SECURITY INTERESTS IN THE
COLLATERAL AND CARRY OUT THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS.
(B)
CAPITALIZATION.
AS OF THE CLOSING DATE:
(I) THE AUTHORIZED STOCK OF EACH OF THE CREDIT PARTIES AND EACH OF THEIR
SUBSIDIARIES IS AS SET FORTH ON SCHEDULE 5.4(B); (II) ALL ISSUED AND OUTSTANDING
STOCK OF EACH OF THE CREDIT PARTIES AND EACH OF THEIR SUBSIDIARIES IS DULY
AUTHORIZED AND VALIDLY ISSUED, FULLY PAID, NONASSESSABLE, FREE AND CLEAR OF ALL
LIENS OTHER THAN THOSE IN FAVOR OF AGENT FOR THE BENEFIT OF AGENT AND LENDERS,
AND OTHER THAN PERMITTED ENCUMBRANCES DESCRIBED IN CLAUSE (A) AND CLAUSE (L) OF
THE DEFINITION OF THE TERM "PERMITTED ENCUMBRANCES", AND SUCH STOCK WAS ISSUED
IN COMPLIANCE WITH ALL APPLICABLE STATE, FEDERAL AND FOREIGN LAWS CONCERNING THE
ISSUANCE OF SECURITIES; (III) THE IDENTITY OF THE HOLDERS OF THE STOCK OF EACH
OF THE CREDIT PARTIES (OTHER THAN BORROWER) AND EACH OF THEIR SUBSIDIARIES AND
THE PERCENTAGE OF THEIR FULLY-DILUTED OWNERSHIP OF THE STOCK OF EACH OF THE
CREDIT PARTIES (OTHER THAN BORROWER) AND EACH OF THEIR SUBSIDIARIES IS SET FORTH
ON SCHEDULE 5.4(B); AND (IV) NO STOCK OF ANY CREDIT PARTY OR ANY OF THEIR
SUBSIDIARIES, OTHER THAN THOSE DESCRIBED ABOVE, ARE ISSUED AND OUTSTANDING.
EXCEPT AS PROVIDED IN SCHEDULE 5.4(B), AS OF THE CLOSING DATE, THERE ARE NO
PREEMPTIVE OR OTHER OUTSTANDING RIGHTS, OPTIONS, WARRANTS, CONVERSION RIGHTS OR
SIMILAR AGREEMENTS OR UNDERSTANDINGS FOR THE PURCHASE OR ACQUISITION FROM ANY
CREDIT PARTY OR ANY OF THEIR SUBSIDIARIES OF ANY STOCK OF ANY SUCH ENTITY.
41
(C)
BINDING OBLIGATION.
THIS AGREEMENT IS, AND
THE OTHER RELATED TRANSACTIONS DOCUMENTS WHEN EXECUTED AND DELIVERED WILL BE,
THE LEGALLY VALID AND BINDING OBLIGATIONS OF THE APPLICABLE PARTIES THERETO,
EACH ENFORCEABLE AGAINST EACH OF SUCH PARTIES, AS APPLICABLE, IN ACCORDANCE WITH
THEIR RESPECTIVE TERMS.
5.5
FINANCIAL STATEMENTS AND PROJECTIONS.
ALL
FINANCIAL STATEMENTS CONCERNING CREDIT PARTIES AND THEIR SUBSIDIARIES WHICH HAVE
BEEN OR WILL HEREAFTER BE FURNISHED TO AGENT PURSUANT TO THIS AGREEMENT,
INCLUDING THOSE LISTED BELOW, HAVE BEEN OR WILL BE PREPARED IN ACCORDANCE WITH
GAAP CONSISTENTLY APPLIED (EXCEPT AS