5.2.
Incorporation of Certain MSA Provisions.
The
following provisions of the MSA shall be deemed to be incorporated herein by
reference (mutatis mutandis) and shall be deemed to apply solely with respect to
the Parties' performance of their respective obligations under this Transition
Agreement (including BE's performance of the Transition Services hereunder) from
and after the Effective Date (with the references in such incorporated
provisions to "Services" and "this Agreement" to be deemed to refer respectively
to the Transition Services and this Transition Agreement):
(A)
SECTION 5.5.3 (SUBCONTRACTS);
(B)
SECTION 7.6 (TAXES);
(C)
SECTION 9 (SUPPLIER RESOURCES);
(D)
SECTION 10.1.4 (DISCLAIMER);
(E)
SECTION 11 (DEVELOPMENTS);
(F)
SECTIONS 15.1.1 AND 15.1.2 (HT
INFORMATION);
(G)
SECTION 15.4 (RESIDUAL KNOWLEDGE);
(H)
SECTIONS 16.1, 16.2.1, 16.3, 16.5, 16.7,
16.8 AND 16.9 (REPRESENTATIONS AND WARRANTIES);
(I)
SECTION 18.7 (INDEMNIFICATION
PROCEDURES);
(J)
SECTION 18.8 (SUBROGATION);
13
(K)
SECTION 19.4 (FORCE MAJEURE);
(L)
EXHIBIT A (DEFINITIONS), BUT ONLY TO THE
EXTENT A DEFINITION THEREIN IS USED IN ANY OTHER PROVISION INCORPORATED BY
REFERENCE HEREIN OR IN THIS TRANSITION AGREEMENT; PROVIDED, HOWEVER, THAT IN THE
CASE OF ANY TERM DEFINED HEREIN THAT IS ALSO DEFINED IN EXHIBIT A, SUCH TERM
SHALL BE DEEMED TO HAVE THE MEANING GIVEN HEREIN; AND
(M)
EXHIBIT Y (BE TECHNICAL ELEMENTS AS OF THE
EXECUTION DATE).
For the avoidance of doubt, the incorporation by reference of the foregoing
provisions of the MSA is intended to solely apply to BE's performance of the
Transition Services and the Parties' other respective obligations to be
performed under this Transition Agreement from and after the Effective Date and
shall not diminish the scope of the terms of the releases set forth in the
Settlement Agreement.
5.3.
Certain Representations.
Each Party
represents and warrants to the other that:
(A)
IT HAS THE REQUISITE CORPORATE POWER AND
AUTHORITY TO ENTER INTO THIS TRANSITION AGREEMENT AND TO FULFILL ALL OF ITS
OBLIGATIONS UNDER THIS TRANSITION AGREEMENT, INCLUDING, IN THE CASE OF BE,
PERFORMING THE TRANSITION SERVICES;
(B)
THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS TRANSITION AGREEMENT DOES NOT VIOLATE ANY JUDGMENT, ORDER OR DECREE
APPLICABLE TO SUCH PARTY; AND THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
TRANSITION AGREEMENT DOES NOT CONSTITUTE A MATERIAL DEFAULT UNDER ANY MATERIAL
CONTRACT BY WHICH SUCH PARTY OR ITS AFFILIATES OR ANY OF ITS MATERIAL ASSETS ARE
BOUND, OR AN EVENT OF DEFAULT THAT WOULD, WITH NOTICE OR LAPSE OF TIME OR BOTH,
CONSTITUTE SUCH A DEFAULT; AND
(C)
TO THE KNOWLEDGE OF SUCH PARTY, THERE IS NO
CLAIM, LITIGATION, PROCEEDING, ARBITRATION, INVESTIGATION OR MATERIAL
CONTROVERSY PENDING, THREATENED OR CONTEMPLATED, WHICH WOULD HAVE A MATERIAL
ADVERSE EFFECT ON SUCH PARTY'S ABILITY TO ENTER INTO THIS TRANSITION AGREEMENT
AND PERFORM ITS OBLIGATIONS HEREUNDER.
5.4.
ADDITIONAL UNDERTAKINGS.
CERTAIN ADDITIONAL
UNDERTAKINGS OF THE PARTIES ARE SET FORTH IN ATTACHMENT 11.
ARTICLE VI.
INDEMNITIES
6.1.
Indemnity by BE.
BE agrees to indemnify,
defend and hold harmless HT and its Affiliates including their officers,
directors, employees, agents, successors, and assigns, from Third Party claims
(including all associated Losses) arising