Lenders to issue Letters of Credit and to induce other Lenders to
purchase participations therein, Company represents and warrants to each Lender,
in each case after giving effect to the Transaction, all of which shall survive
the execution and delivery of this Agreement and the Notes and the making of the
Loans and the issuance of the Letters of Credit, on the date of this Agreement,
on each Funding Date and on the date of issuance of each Letter of Credit, that
the following statements are true, correct and complete (it being understood and
agreed that any representation or warranty which by its terms is made as of a
specified date shall be required to be true and correct in all material respects
only as of such specified date):
5.1
Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A.
ORGANIZATION AND POWERS.
COMPANY AND EACH MATERIAL SUBSIDIARY IS
AN ENTITY DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF ITS JURISDICTION OF ORGANIZATION AS SPECIFIED IN SCHEDULE 5.1 ANNEXED HERETO
AND HAS ALL REQUISITE ORGANIZATIONAL POWER AND AUTHORITY TO OWN AND OPERATE ITS
PROPERTIES AND ASSETS AND TO CARRY ON ITS BUSINESS AS NOW CONDUCTED AND AS
PROPOSED TO BE CONDUCTED.
EACH LOAN PARTY HAS ALL REQUISITE ORGANIZATIONAL
POWER AND AUTHORITY TO ENTER INTO THE LOAN DOCUMENTS AND RELATED AGREEMENTS TO
WHICH IT IS A PARTY AND TO CARRY OUT THE TRANSACTIONS CONTEMPLATED THEREBY.
B.
QUALIFICATION AND GOOD STANDING.
COMPANY AND EACH MATERIAL
SUBSIDIARY IS QUALIFIED TO DO BUSINESS AND IN GOOD STANDING IN EVERY
JURISDICTION WHERE ITS ASSETS ARE LOCATED AND WHEREVER NECESSARY TO CARRY OUT
ITS BUSINESS AND OPERATIONS, EXCEPT TO THE EXTENT THAT THE FAILURE TO BE SO
QUALIFIED OR IN GOOD STANDING HAS NOT HAD AND WILL NOT HAVE A MATERIAL ADVERSE
EFFECT.
95
C.
SUBSIDIARIES.
ALL OF THE SUBSIDIARIES AND UNRESTRICTED
SUBSIDIARIES OF COMPANY AS OF THE CLOSING DATE ARE IDENTIFIED IN SCHEDULE 5.1
ANNEXED HERETO AND, TO THE BEST KNOWLEDGE OF COMPANY, EACH MATERIAL SUBSIDIARY
AS OF THE CLOSING DATE HAS BEEN SO DESIGNATED ON SAID SCHEDULE 5.1.
5.2
Authorization of Borrowing, etc.
A.
AUTHORIZATION OF BORROWING.
THE EXECUTION, DELIVERY AND
PERFORMANCE OF THE LOAN DOCUMENTS AND THE RELATED AGREEMENTS HAVE BEEN DULY
AUTHORIZED BY ALL NECESSARY CORPORATE OR OTHER ACTION ON THE PART OF EACH LOAN
PARTY THAT IS A PARTY THERETO.
B.
NO CONFLICT.
THE EXECUTION, DELIVERY AND PERFORMANCE BY LOAN
PARTIES OF THE LOAN DOCUMENTS TO WHICH THEY ARE PARTIES AND THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED BY THE LOAN DOCUMENTS AND THE RELATED AGREEMENTS
DO NOT AND WILL NOT (I) VIOLATE ANY PROVISION OF ANY MATERIAL LAW OR ANY
MATERIAL GOVERNMENTAL RULE OR REGULATION APPLICABLE TO COMPANY OR ANY OF ITS
MATERIAL SUBSIDIARIES OR ANY OTHER LOAN PARTY, THE CERTIFICATE OR ARTICLES OF
INCORPORATION OR BYLAWS (OR EQUIVALENT CONSTITUTIONAL DOCUMENTS) OF COMPANY OR
ANY OF ITS SUBSIDIARIES, OR ANY MATERIAL ORDER, JUDGMENT OR DECREE OF ANY COURT
OR OTHER AGENCY OF GOVERNMENT BINDING ON COMPANY OR