LIMITED LIABILITY COMPANIES IN EACH
JURISDICTION IN WHICH THEIR RESPECTIVE OWNERSHIP OR LEASE OF PROPERTY OR THE
CONDUCT OF THEIR RESPECTIVE BUSINESSES REQUIRES SUCH QUALIFICATION, AND HAVE ALL
POWER AND AUTHORITY NECESSARY TO OWN OR HOLD THEIR RESPECTIVE PROPERTIES AND TO
CONDUCT THE BUSINESSES IN WHICH THEY ARE ENGAGED, EXCEPT WHERE THE FAILURE TO SO
QUALIFY OR HAVE SUCH POWER OR AUTHORITY WOULD NOT, SINGULARLY OR IN THE
AGGREGATE, HAVE A MATERIAL ADVERSE EFFECT ON THE CONDITION (FINANCIAL OR
OTHERWISE), RESULTS OF OPERATIONS, BUSINESS OR PROSPECTS OF THE COMPANY AND ITS
SUBSIDIARIES TAKEN AS A WHOLE (A "MATERIAL ADVERSE EFFECT").
(D)
AS OF THE CLOSING DATE, THE COMPANY WILL HAVE AN AUTHORIZED CAPITALIZATION
AS SET FORTH IN THE OFFERING MEMORANDUM UNDER THE HEADING "CAPITALIZATION", AND
ALL OF THE OUTSTANDING SHARES OF CAPITAL STOCK OF THE COMPANY HAVE BEEN DULY AND
VALIDLY AUTHORIZED AND ISSUED AND ARE FULLY PAID AND NON-ASSESSABLE.
ALL OF THE
OUTSTANDING SHARES OF CAPITAL STOCK OF EACH SUBSIDIARY OF THE COMPANY HAVE BEEN
DULY AND VALIDLY AUTHORIZED AND ISSUED, ARE FULLY PAID AND NON-ASSESSABLE AND,
EXCEPT FOR DIRECTOR QUALIFYING SHARES, ARE OWNED DIRECTLY OR INDIRECTLY BY THE
COMPANY, FREE AND CLEAR OF ANY LIEN, CHARGE, ENCUMBRANCE, SECURITY INTEREST,
RESTRICTION UPON VOTING OR TRANSFER OR ANY OTHER CLAIM OF ANY THIRD PARTY
(COLLECTIVELY, "LIENS"), EXCEPT FOR THOSE EXPRESSLY PERMITTED BY OR CREATED
PURSUANT TO THE CREDIT AGREEMENT AND THE SECURITY DOCUMENTS RELATING THERETO,
THE INDENTURE GOVERNING THE MAY 2003 NOTES AND THE SECURITY DOCUMENTS RELATING
THERETO, THE INDENTURE OR THE SECURITY DOCUMENTS (COLLECTIVELY, "PERMITTED
LIENS").
(E)
THE COMPANY AND EACH OF THE NOTE GUARANTORS EACH HAD, HAS OR AS OF THE
CLOSING DATE WILL HAVE, FULL RIGHT, POWER AND AUTHORITY TO EXECUTE AND DELIVER
THIS AGREEMENT, THE INDENTURE, THE REGISTRATION RIGHTS AGREEMENT, EACH SECURITY
DOCUMENT TO WHICH IT IS A PARTY AND THE NOTES (IN THE CASE OF THE COMPANY ONLY)
(COLLECTIVELY, THE "TRANSACTION DOCUMENTS") AND TO PERFORM THEIR RESPECTIVE
OBLIGATIONS HEREUNDER AND THEREUNDER; AND ALL REQUISITE ACTION REQUIRED TO BE
TAKEN FOR THE DUE AND PROPER AUTHORIZATION, EXECUTION AND DELIVERY OF EACH OF
THE TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED THEREBY HAVE BEEN, OR AS OF THE CLOSING DATE WILL BE,
DULY AND VALIDLY TAKEN.
(F)
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE
COMPANY AND EACH OF THE NOTE GUARANTORS AND CONSTITUTES A VALID AND LEGALLY
BINDING AGREEMENT OF THE COMPANY AND EACH OF THE NOTE GUARANTORS, ENFORCEABLE
AGAINST THE COMPANY AND EACH OF THE NOTE GUARANTORS IN ACCORDANCE WITH ITS
TERMS, EXCEPT TO THE EXTENT THAT (I) SUCH ENFORCEABILITY MAY BE SUBJECT TO
(A) BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE, REORGANIZATION, MORATORIUM
AND OTHER SIMILAR LAWS AFFECTING CREDITORS' RIGHTS GENERALLY AND (B) GENERAL
EQUITABLE PRINCIPLES (WHETHER CONSIDERED IN A PROCEEDING IN EQUITY OR AT LAW)
AND (II) THE VALIDITY OR ENFORCEABILITY OF RIGHTS TO
4
INDEMNIFICATION AND CONTRIBUTION HEREUNDER MAY BE LIMITED BY FEDERAL OR STATE
SECURITIES LAWS OR REGULATIONS OR THE PUBLIC POLICY