STATE A MATERIAL FACT NECESSARY IN ORDER TO
MAKE THE STATEMENTS CONTAINED HEREIN OR THEREIN NOT MISLEADING IN LIGHT OF THE
CIRCUMSTANCES IN WHICH THE SAME WERE MADE.
5.2
NO MATERIAL ADVERSE EFFECT.
SINCE DECEMBER 31, 2004, THERE HAVE
BEEN NO EVENTS OR CHANGES IN FACTS OR CIRCUMSTANCES AFFECTING HOLDINGS OR ANY OF
ITS SUBSIDIARIES WHICH HAD OR COULD REASONABLY BE EXPECTED TO HAVE A MATERIAL
ADVERSE EFFECT AND THAT HAVE NOT BEEN DISCLOSED HEREIN OR IN THE ATTACHED
DISCLOSURE SCHEDULES.
5.3
NO CONFLICT.
THE CONSUMMATION OF THE RELATED TRANSACTIONS DOES
NOT AND WILL NOT VIOLATE OR CONFLICT WITH ANY LAWS, RULES, REGULATIONS OR ORDERS
OF ANY GOVERNMENTAL AUTHORITY OR VIOLATE, CONFLICT WITH, RESULT IN A BREACH OF,
OR CONSTITUTE A DEFAULT (WITH DUE NOTICE OR LAPSE OF TIME OR BOTH) UNDER ANY
CONTRACTUAL OBLIGATION OR ORGANIZATIONAL DOCUMENTS OF HOLDINGS OR ANY OF ITS
SUBSIDIARIES EXCEPT IF SUCH VIOLATIONS, CONFLICTS, BREACHES OR DEFAULTS HAVE NOT
HAD AND COULD NOT REASONABLY BE EXPECTED TO HAVE, EITHER INDIVIDUALLY OR IN THE
AGGREGATE, 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 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
CLOSING DATE, THE SUBSIDIARIES OF HOLDINGS THAT ARE CREDIT PARTIES ARE INDICATED
AS SUCH ON SCHEDULE 5.4(A).
(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
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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