7
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1
REPRESENTATIONS AND WARRANTIES.
EACH OF THE OBLIGORS
REPRESENTS AND WARRANTS TO EACH BENEFICIARY AS SET FORTH BELOW.
(A)
SUCH OBLIGOR IS A CORPORATION DULY ORGANIZED AND VALIDLY EXISTING
IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF ORGANIZATION.
(B)
THIS AGREEMENT HAS BEEN DULY AUTHORIZED, EXECUTED, AND DELIVERED
BY SUCH OBLIGOR AND, ASSUMING DUE AUTHORIZATION, EXECUTION, AND DELIVERY BY THE
OTHER PARTIES HERETO, IS A LEGAL, VALID, AND BINDING OBLIGATION OF SUCH OBLIGOR,
ENFORCEABLE AGAINST SUCH OBLIGOR IN ACCORDANCE WITH ITS TERMS, EXCEPT AS
ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY, INSOLVENCY, OR SIMILAR LAWS
AFFECTING ENFORCEMENT OF CREDITORS' RIGHTS GENERALLY AND BY GENERAL PRINCIPLES
OF EQUITY.
SUCH OBLIGOR'S EXECUTION AND DELIVERY OF, AND PERFORMANCE OF ITS
OBLIGATIONS UNDER, THIS AGREEMENT DO NOT AND WILL NOT VIOLATE ITS ARTICLES OF
INCORPORATION OR BY-LAWS, DO NOT AND WILL NOT CONTRAVENE ANY EXISTING LAW,
GOVERNMENTAL RULE OR REGULATION, JUDGMENT, OR ORDER APPLICABLE TO OR BINDING ON
SUCH OBLIGOR, AND DO NOT AND WILL NOT CONTRAVENE ANY PROVISION OF, OR CONSTITUTE
A DEFAULT UNDER, ANY CONTRACT TO WHICH SUCH OBLIGOR IS A PARTY OR BY WHICH IT OR
ANY OF ITS PROPERTIES IS BOUND, AND DO NOT AND WILL NOT REQUIRE THE CONSENT OR
APPROVAL OF ITS STOCKHOLDERS OR ANY TRUSTEE OR HOLDERS OF ANY INDEBTEDNESS OR
OBLIGATIONS OF SUCH OBLIGOR, EXCEPT SUCH AS HAVE BEEN DULY OBTAINED.
(C)
NEITHER OBLIGOR'S EXECUTION AND DELIVERY OF THIS AGREEMENT, NOR
OBLIGOR'S CONSUMMATION OF ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, REQUIRES
THE CONSENT OR APPROVAL OF, GIVING OF NOTICE (OTHER THAN SUBSEQUENT REPORTING
REQUIREMENTS) TO, REGISTRATION WITH, OR TAKING OF ANY OTHER ACTION IN RESPECT
OF, ANY GOVERNMENTAL AUTHORITY, EXCEPT ANY WHICH ARE IN FULL FORCE AND EFFECT.
ARTICLE IV
INDEMNITY/EXPENSES
SECTION 4.1
INDEMNITY OBLIGATION.
LESSEE AGREES TO INDEMNIFY AND
HOLD HARMLESS ON A NET AFTER-TAX BASIS EACH BENEFICIARY, AND EACH OF THEIR
RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS IN SUCH CAPACITIES, AGENTS,
SERVANTS, OFFICERS, EMPLOYEES AND DIRECTORS (HEREINAFTER IN THIS ARTICLE IV
REFERRED TO INDIVIDUALLY AS AN "INDEMNITEE," AND, COLLECTIVELY, AS
"INDEMNITEES") AGAINST ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES, DAMAGES,
PENALTIES, CLAIMS, DEMANDS, ACTIONS, SUITS, JUDGMENTS AND ANY AND ALL COSTS AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES, DISBURSEMENTS AND OTHER CHARGES)
(FOR THE PURPOSES OF THIS ARTICLE IV THE FOREGOING ARE COLLECTIVELY CALLED
"LOSSES") INCURRED OR SUFFERED BY ANY OF THE INDEMNITEES ARISING OUT OF, OR
RELATING TO LESSEE'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT OR
THE BREACH OF ANY REPRESENTATION OR WARRANTY IN THIS AGREEMENT OR THE EXERCISE
OR ENFORCEMENT OF ANY OF THE TERMS, RIGHTS OR REMEDIES HEREUNDER, (BUT EXCLUDING
ANY SUCH LOSSES TO THE EXTENT INCURRED BY REASON OF (I) THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SUCH INDEMNITEE OR ANY RELATED INDEMNITEE (AS DEFINED
BELOW), OR (II) BREACHES BY SUCH INDEMNITEE OF THIS AGREEMENT).
FOR
8
purposes of subclause (i) above, an Indemnitee shall be considered a "related"
Indemnitee with respect to another Indemnitee if such Indemnitee is an Affiliate