AUTHORITY AND DO NOT VIOLATE, CONFLICT WITH OR CAUSE A BREACH OR A
DEFAULT UNDER (A) ANY LAW OR ANY OF THE ORGANIZATIONAL DOCUMENTS OF ANY NOTE
PARTY OR (B) ANY AGREEMENT OR INSTRUMENT BINDING UPON IT, EXCEPT FOR SUCH
VIOLATIONS, CONFLICTS, BREACHES OR DEFAULTS AS COULD NOT, WITH RESPECT TO THIS
CLAUSE (B), REASONABLY BE EXPECTED TO HAVE A MATERIAL ADVERSE EFFECT.
4.3
BINDING EFFECT.
EACH OF THE OPERATIVE
DOCUMENTS TO WHICH ANY NOTE PARTY IS A PARTY CONSTITUTES A VALID AND BINDING
AGREEMENT OR INSTRUMENT OF SUCH NOTE PARTY, ENFORCEABLE AGAINST SUCH NOTE PARTY
IN ACCORDANCE WITH ITS RESPECTIVE TERMS, EXCEPT AS THE ENFORCEABILITY THEREOF
MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY OR OTHER SIMILAR LAWS RELATING TO THE
ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND BY GENERAL EQUITABLE PRINCIPLES.
4.4
CAPITALIZATION.
THE AUTHORIZED EQUITY
SECURITIES OF EACH OF THE NOTE PARTIES AS OF THE CLOSING DATE IS AS SET FORTH ON
SCHEDULE 4.4.
ALL ISSUED AND OUTSTANDING EQUITY SECURITIES OF EACH OF THE NOTE
PARTIES ARE DULY AUTHORIZED AND VALIDLY ISSUED, FULLY PAID AND NONASSESSABLE AND
ALL OF SUCH EQUITY SECURITIES (OTHER THAN THOSE ISSUED BY COMPANY, AS TO WHICH
NO REPRESENTATION OR WARRANTY IS MADE) ARE FREE AND CLEAR OF ALL LIENS OTHER
THAN THOSE IN FAVOR OF AGENT FOR THE BENEFIT OF AGENT AND SENIOR LENDERS, AND
ALL SUCH EQUITY SECURITIES WERE ISSUED IN COMPLIANCE WITH ALL APPLICABLE LAWS.
THE IDENTITY OF THE HOLDERS OF THE EQUITY SECURITIES OF EACH OF THE NOTE PARTIES
(OTHER THAN COMPANY, AS TO WHICH NO SUCH REPRESENTATION OR WARRANTY IS MADE) AND
THE PERCENTAGE OF THEIR FULLY-DILUTED OWNERSHIP OF THE EQUITY SECURITIES OF EACH
OF THE NOTE PARTIES AS OF THE CLOSING DATE IS SET FORTH ON SCHEDULE 4.4.
AS OF
THE CLOSING DATE, ON A FULLY DILUTED BASIS, INVESTOR OWNS NOT LESS THAN
SIXTY-FOUR AND ONE HALF PERCENT (64 1⁄2%) OF THE ISSUED
6
AND OUTSTANDING SHARE OF EACH CLASS OF EQUITY SECURITIES OF COMPANY.
NO SHARES
OF THE CAPITAL STOCK OR OTHER EQUITY SECURITIES OF ANY NOTE PARTY, OTHER THAN
THOSE DESCRIBED ABOVE, ARE ISSUED AND OUTSTANDING AS OF THE CLOSING DATE.
EXCEPT AS SET FORTH ON SCHEDULE 4.4, 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
NOTE PARTY OF ANY EQUITY SECURITIES OF ANY SUCH ENTITY.
4.5
FINANCIAL INFORMATION.
(A)
THE CONSOLIDATED AND CONSOLIDATING BALANCE
SHEET OF COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF DECEMBER 31, 2004 AND
THE RELATED CONSOLIDATED AND CONSOLIDATING STATEMENTS OF OPERATIONS,
STOCKHOLDERS' EQUITY (OR COMPARABLE CALCULATION, IF SUCH PERSON IS NOT A
CORPORATION) AND CASH FLOWS FOR THE FISCAL YEAR THEN ENDED, REPORTED ON BY KPMG,
COPIES OF WHICH HAVE BEEN DELIVERED TO EACH PURCHASER, FAIRLY PRESENT, IN ALL
MATERIAL RESPECTS IN CONFORMITY WITH GAAP, THE CONSOLIDATED AND CONSOLIDATING
FINANCIAL POSITION OF COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF SUCH DATE
AND THEIR CONSOLIDATED AND CONSOLIDATING RESULTS OF OPERATIONS, CHANGES IN