take any action that is inconsistent with such
treatment.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1.
Representations of the Members.
As of the date hereof, each of the Members, severally and not jointly,
represents and warrants to the others as set forth below.
3.1.1
POWER AND AUTHORITY. IT HAS ALL REQUISITE CORPORATE
POWER AND AUTHORITY AND HAS TAKEN ALL CORPORATE ACTION NECESSARY IN ORDER TO
EXECUTE AND DELIVER THIS AGREEMENT AND TO PERFORM FULLY ITS OBLIGATIONS
HEREUNDER.
3.1.2
BINDING AGREEMENT. THIS AGREEMENT HAS BEEN DULY
EXECUTED AND DELIVERED BY IT AND IS A VALID AND BINDING AGREEMENT OF IT
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO BANKRUPTCY,
INSOLVENCY, FRAUDULENT TRANSFER, REORGANIZATION, MORATORIUM
10
AND SIMILAR LAWS OF GENERAL APPLICABILITY RELATING TO OR AFFECTING CREDITORS'
RIGHTS AND TO GENERAL EQUITY PRINCIPLES.
3.1.3
NOTICES, REPORTS AND FILINGS. NO NOTICES, REPORTS OR
OTHER FILINGS ARE REQUIRED TO BE MADE BY IT WITH, NOR ARE ANY CONSENTS,
REGISTRATIONS, APPROVALS, PERMITS OR AUTHORIZATIONS REQUIRED TO BE OBTAINED BY
IT FROM, ANY GOVERNMENTAL ENTITY, IN CONNECTION WITH ITS EXECUTION AND DELIVERY
OF THIS AGREEMENT, EXCEPT THOSE THAT HAVE BEEN MADE OR OBTAINED OR THAT THE
FAILURE TO MAKE OR OBTAIN ARE NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY
LIKELY TO RESULT IN A MATERIAL ADVERSE EFFECT ON THE OPERATING COMPANY.
3.1.4
NON-CONTRAVENTION. THE EXECUTION, DELIVERY AND
PERFORMANCE OF THIS AGREEMENT BY IT DOES NOT, AND THE CONSUMMATION BY IT OF THE
TRANSACTIONS CONTEMPLATED HEREBY WILL NOT, CONSTITUTE OR RESULT IN (A) A BREACH
OR VIOLATION OF, OR A DEFAULT UNDER, ITS ORGANIZATIONAL DOCUMENTS, (B) A BREACH
OF OR VIOLATION OF OR A DEFAULT UNDER, OR THE ACCELERATION OF ANY OBLIGATIONS OF
OR THE CREATION OF A LIEN OR ENCUMBRANCE ON ITS ASSETS (WITH OR WITHOUT NOTICE,
LAPSE OF TIME OR BOTH) PURSUANT TO ANY CONTRACTS BINDING UPON IT OR ANY LAW,
STATUTE OR REGULATION OR GOVERNMENTAL OR NON-GOVERNMENTAL PERMIT OR LICENSE TO
WHICH IT IS SUBJECT OR (C) ANY CHANGE IN THE RIGHTS OR OBLIGATIONS OF ANY PARTY
UNDER ANY OF SUCH CONTRACTS TO WHICH IT IS A PARTY, EXCEPT, IN THE CASE OF
CLAUSE (B) OR (C) ABOVE, FOR ANY BREACH, VIOLATION, DEFAULT, ACCELERATION,
CREATION OR CHANGE THAT, INDIVIDUALLY OR IN THE AGGREGATE, IS NOT REASONABLY
LIKELY TO RESULT IN A MATERIAL ADVERSE EFFECT ON THE OPERATING COMPANY.
ARTICLE 4
TRANSFER RESTRICTIONS
4.1.
Transfer Restrictions. Until such time as a
Triggering Event (as defined in Article 5 of the Management Company Certificate)
shall occur, each Member agrees that it and its Subsidiaries and Parent Entities
shall not Transfer or permit any Transfer, in any single transaction or series
of related transactions, any JV Securities that are, directly or indirectly,
Beneficially Owned by it, except in accordance with the terms of this Agreement
and the Stockholders' Agreement. Any Transfer of any JV Securities other than in
accordance with this Agreement and the Stockholders' Agreement shall be null and
void.
4.1.1
LOCK-IN PERIOD. UNTIL MARCH 24, 2008 (THE "LOCK-IN
PERIOD"), THE MEMBERS AND THEIR