FINANCIAL STATEMENTS REFERRED TO
IN SUBSECTION 5.8 AND ANY OTHER DOCUMENT, CERTIFICATE, OPINION OR WRITTEN
STATEMENT FURNISHED TO ADMINISTRATIVE AGENT OR ANY LENDER PURSUANT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT (OTHER THAN PROJECTIONS), TAKEN AS A WHOLE,
DOES NOT CONTAIN ANY UNTRUE STATEMENT OF A MATERIAL FACT OR OMIT TO 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 WAS
MADE.
ANY PROJECTIONS PROVIDED BY OR ON BEHALF OF THE LOAN PARTIES OR ANY OF
THEIR RESPECTIVE SUBSIDIARIES HAVE BEEN PREPARED BY MANAGEMENT IN GOOD FAITH AND
BASED UPON ASSUMPTIONS BELIEVED BY MANAGEMENT TO BE REASONABLE AT THE TIME THE
PROJECTIONS WERE PREPARED.
5.2
NO MATERIAL ADVERSE EFFECT.
SINCE
DECEMBER 31, 2008, THERE HAS BEEN NO EVENT OR CHANGE IN FACTS OR CIRCUMSTANCES
AFFECTING THE LOAN PARTIES OR ANY OF THEIR RESPECTIVE SUBSIDIARIES WHICH
INDIVIDUALLY OR IN THE AGGREGATE HAVE HAD OR COULD REASONABLY BE EXPECTED TO
46
HAVE A MATERIAL ADVERSE EFFECT AND THAT HAVE NOT BEEN DISCLOSED HEREIN, IN
BORROWER'S PRIOR SEC FILINGS MADE PRIOR TO THE DATE HEREOF, OR IN THE ATTACHED
SCHEDULES.
5.3
ORGANIZATION, POWERS, AUTHORIZATION AND GOOD
STANDING.
(A)
ORGANIZATION AND POWERS.
EACH OF THE LOAN
PARTIES AND THEIR RESPECTIVE SUBSIDIARIES IS A LIMITED LIABILITY COMPANY,
CORPORATION OR PARTNERSHIP DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING
UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION OR INCORPORATION (WHICH
JURISDICTION IS SET FORTH ON SCHEDULE 5.3(A)).
EXCEPT AS DISCLOSED ON SCHEDULE
5.3(A), EACH OF THE LOAN PARTIES AND THEIR RESPECTIVE SUBSIDIARIES HAS ALL
REQUISITE LEGAL 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 CARRY OUT ITS RESPECTIVE
OBLIGATIONS WITH RESPECT THERETO.
(B)
AUTHORIZATION; BINDING OBLIGATION.
EACH OF
THE LOAN PARTIES AND THEIR RESPECTIVE SUBSIDIARIES HAS TAKEN ALL NECESSARY
LIMITED LIABILITY COMPANY, PARTNERSHIP, CORPORATE AND OTHER ACTION TO AUTHORIZE
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND EACH OF THE OTHER
LOAN DOCUMENTS TO WHICH IT IS A PARTY. 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 (OTHER THAN ADMINISTRATIVE AGENT
AND LENDERS), EACH ENFORCEABLE AGAINST EACH OF SUCH PARTIES, AS APPLICABLE, IN
ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT AS SUCH ENFORCEMENT MAY BE
LIMITED BY BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR SIMILAR STATE
OR FEDERAL DEBT OR RELIEF LAWS FROM TIME TO TIME IN EFFECT WHICH AFFECT THE
ENFORCEMENT OF CREDITORS' RIGHTS IN GENERAL AND GENERAL PRINCIPLES OF EQUITY.
(C)
QUALIFICATION.
EACH OF THE LOAN PARTIES AND
THEIR RESPECTIVE SUBSIDIARIES IS DULY QUALIFIED AND AUTHORIZED TO DO BUSINESS
AND IN GOOD STANDING IN EACH JURISDICTION WHERE THE NATURE OF ITS BUSINESS AND
OPERATIONS REQUIRES SUCH QUALIFICATION AND AUTHORIZATION, EXCEPT WHERE THE
FAILURE TO BE SO QUALIFIED, AUTHORIZED AND IN GOOD STANDING