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 RESTATEMENT 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 RELATED TRANSACTIONS 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 RESTATEMENT DATE,
THE SUBSIDIARIES OF HOLDINGS THAT ARE CREDIT PARTIES ARE INDICATED AS SUCH ON
SCHEDULE 5.4(A).
(B)
CAPITALIZATION.
AS OF THE RESTATEMENT 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 RESTATEMENT 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 ANY SUCH ENTITY.
47
(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 EXCEPT AS MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION,
MORATORIUM OR OTHER LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND THE EFFECTS
OF GENERAL PRINCIPLES OF EQUITY.
5.5
Financial Statements and Budget.
All Financial Statements
concerning Holdings, Borrower and their respective Subsidiaries which have been
or will hereafter be furnished to Agent pursuant to this Agreement have been or
will be prepared in accordance with GAAP consistently applied (except as
disclosed therein) and do or will present fairly in all material respects the
financial condition of the entities covered thereby as at the dates thereof and
the