and are in full force and effect or where the failure to
do so, individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
5.4.
ORGANIZATION, POWERS, CAPITALIZATION AND GOOD STANDING.
(A)
ORGANIZATION AND POWERS.
HOLDINGS AND EACH OF ITS 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.
THE (I) JURISDICTION
OF ORGANIZATION OF HOLDING AND EACH OF ITS SUBSIDIARIES AND (II) JURISDICTIONS
IN WHICH HOLDINGS AND EACH OF ITS SUBSIDIARIES IS AS OF THE CLOSING DATE
QUALIFIED TO DO BUSINESS ARE SET FORTH ON SCHEDULE 5.4(A).
HOLDINGS AND EACH OF
ITS 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 RELATED TRANSACTIONS.
AS OF THE CLOSING DATE, THE SUBSIDIARIES OF
HOLDINGS THAT ARE CREDIT PARTIES ARE INDICATED AS SUCH ON SCHEDULE 5.4(A).
49
(B)
CAPITALIZATION.
AS OF THE CLOSING DATE:
(I) THE AUTHORIZED STOCK OF
HOLDINGS AND EACH OF ITS SUBSIDIARIES IS AS SET FORTH ON SCHEDULE 5.4(B);
(II) ALL ISSUED AND OUTSTANDING STOCK OF HOLDINGS AND EACH OF ITS SUBSIDIARIES
IS DULY AUTHORIZED AND VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE, AND SUCH
STOCK WAS ISSUED IN COMPLIANCE IN ALL MATERIAL RESPECTS WITH ALL APPLICABLE
STATE, FEDERAL AND FOREIGN LAWS CONCERNING THE ISSUANCE OF SECURITIES; (III) ALL
ISSUED AND OUTSTANDING STOCK OF BORROWER AND EACH OF ITS SUBSIDIARIES IS FREE
AND CLEAR OF ALL LIENS OTHER THAN THOSE IN FAVOR OF AGENT FOR THE BENEFIT OF
AGENT AND LENDERS; (IV) THE IDENTITY OF THE HOLDERS OF THE STOCK OF EACH OF
BORROWER AND ITS SUBSIDIARIES AND THE PERCENTAGE OF THEIR FULLY-DILUTED
OWNERSHIP OF THE STOCK OF EACH OF BORROWER AND ITS SUBSIDIARIES IS SET FORTH ON
SCHEDULE 5.4(B); AND (V) NO STOCK OF BORROWER OR ANY OF ITS 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 HOLDINGS OR ANY OF ITS
SUBSIDIARIES OF ANY STOCK OF BORROWER OR ANY OF ITS SUBSIDIARIES.
(C)
BINDING OBLIGATION.
THIS AGREEMENT IS, AND THE OTHER LOAN 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 EXCEPT AS MAY
BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS
AFFECTING CREDITORS' RIGHTS GENERALLY AND THE EFFECTS OF GENERAL PRINCIPLES