IS DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION AND IS
QUALIFIED AS A FOREIGN CORPORATION IN EACH JURISDICTION WHERE IT CONDUCTS
BUSINESS WHERE SUCH QUALIFICATION IS REQUIRED, EXCEPT WHERE THE FAILURE TO BE SO
QUALIFIED COULD NOT REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT;
(B)
SUCH PARTY HAS DELIVERED TO PARTY A TRUE AND
COMPLETE COPIES OF ITS ORGANIZATIONAL DOCUMENTS AS AMENDED OR AMENDED AND
RESTATED THROUGH THE DATE HEREOF AND AS IN EFFECT ON THE DATE HEREOF;
(C)
SUCH PARTY HAS THE FULL CORPORATE POWER AND
CORPORATE AUTHORITY TO EXECUTE AND DELIVER THIS AGREEMENT AND THE OTHER
SPECIFIED AGREEMENTS AND TO PERFORM ITS OBLIGATIONS HEREUNDER AND THEREUNDER;
AND
(D)
THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT AND ANY OTHER SPECIFIED AGREEMENT BY SUCH PARTY HAVE BEEN AND
REMAIN DULY AUTHORIZED BY ALL NECESSARY CORPORATE, LIMITED LIABILITY COMPANY OR
PARTNERSHIP ACTION, AS APPLICABLE, AND DO NOT CONTRAVENE (I) ANY PROVISION OF
ITS ORGANIZATIONAL DOCUMENTS, (II) APPLICABLE LAW, OR (III) THE TERMS OF ANY
MATERIAL CONTRACT.
16
(II)
ENFORCEABILITY.
THIS AGREEMENT AND EACH
SPECIFIED AGREEMENT TO WHICH IT IS A PARTY CONSTITUTE THE LEGAL, VALID AND
BINDING OBLIGATIONS OF SUCH PARTY, ENFORCEABLE AGAINST SUCH PARTY IN ACCORDANCE
WITH THEIR RESPECTIVE TERMS, EXCEPT AS ENFORCEMENT HEREOF OR THEREOF MAY BE
LIMITED BY APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION OR OTHER SIMILAR
LAWS AFFECTING THE ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY OR BY GENERAL
EQUITY PRINCIPLES.
(III)
CAPITALIZATION, INDEBTEDNESS AND HEDGING
TRANSACTIONS.
(A)
EXHIBIT 5(J)(III)(A) SETS FORTH THE
CAPITALIZATION OF SUCH PARTY AS OF THE DATE HEREOF, INCLUDING (I) THE AUTHORIZED
CAPITAL, (II) THE EQUITY INTERESTS OUTSTANDING AND (III) EACH PERSON OWNING, OF
RECORD OR BENEFICIALLY, 10% OR MORE OF ANY CLASS OF SUCH PARTY'S EQUITY
INTERESTS, TOGETHER WITH THE NUMBER OF EQUITY INTERESTS OF EACH SUCH CLASS AND
THE PERCENTAGE SO HELD BY EACH SUCH PERSON.
ALL OUTSTANDING EQUITY INTERESTS
ARE DULY AND VALIDLY ISSUED, FULLY PAID AND NON-ASSESSABLE. EXCEPT FOR OPTIONS
AND WARRANTS OF MX HOLDINGS OUTSTANDING ON THE DATE HEREOF OR WHICH MAY BE
ISSUED PURSUANT TO THE MANAGEMENT INCENTIVE PLAN, SUCH PARTY DOES NOT HAVE
OUTSTANDING ANY SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE FOR ITS EQUITY
INTERESTS OR ANY RIGHTS TO SUBSCRIBE FOR OR TO PURCHASE, OR ANY OPTION FOR THE
PURCHASE OF, OR ANY AGREEMENT, ARRANGEMENT OR UNDERSTANDING PROVIDING FOR THE
ISSUANCE (CONTINGENT OR OTHERWISE) OF, OR ANY CALL, COMMITMENT OR CLAIMS OF ANY
CHARACTER RELATING TO, ITS EQUITY INTERESTS.
(B)
EXHIBIT 5(J)(III)(B) SETS FORTH THE
INDEBTEDNESS OF SUCH PARTY AS OF THE DATE OF THIS AGREEMENT, INCLUDING, AS TO
EACH ITEM OF INDEBTEDNESS (TO THE EXTENT APPLICABLE) INCLUDING CREDIT SUPPORT,
(I) THE COUNTERPARTY OR COUNTERPARTIES OR ISSUERS, (II) THE NATURE OF THE
INDEBTEDNESS OR CREDIT SUPPORT, (III) THE AMOUNT OF THE OBLIGATIONS, REMAINING
PURCHASE PRICE OR FACE AMOUNT, (IV) THE FINAL MATURITY DATE OR EXPIRATION OR
TERMINATION DATE AND A DESCRIPTION OF REQUIRED INTERIM PAYMENTS AND (V) THE
RATE, AND THE TIMING OF PAYMENTS, OF INTEREST, FEES