ADDITIONAL WARRANTIES AND AGREEMENTS. Debtor warrants and agrees that: the execution of and performance by Debtor under the terms of this Agreement has been approved for Debtor by all necessary action and by Debtor's partners or board of directors, as applicable; the Equipment is currently and will continue be maintained in good operating condition, repair and appearance and is currently and will continue be used and operated with care only by qualified personnel in the regular course of Debtor's business and in conformity with all applicable governmental laws and regulations, manufacturer's specifications and the restrictions contained in any insurance policy insuring the Equipment; the Equipment is not currently and will not be used in conjunction with the storage, transportation or disposal of substances considered to be toxic and/or hazardous or in conjunction with any activity or for any use that would subject the Equipment to seizure or confiscation by any governmental body; and the Equipment is currently located at and will be kept by Debtor at the location set forth for it on the reverse side of this Agreement and will not be removed from said location without the prior written consent of Secured Party, except that if the Equipment is of a type which is mobile and normally used by Debtor at more than one location, Debtor may use the Equipment away from said location in the regular course of Debtor's business provided that (a) if the Equipment is not returned to said location within 30 days, Debtor will immediately thereafter, and each 30 days thereafter until the Equipment is returned, report the then current location of the Equipment to Secured Party in writing and (b) the Equipment shall not be removed from the State(s) of use indicated on the reverse side of this Agreement. Secured Party shall have the right to inspect the Equipment at all reasonable times and from time to time. Debtor further warrants and agrees that: the security interest in the Collateral granted to and/or retained by Secured Party is and will continue to be superior to any title to or interest in the Equipment now or hereafter held or claimed by any other party; the Collateral is free from and will be kept free from all liens, claims, security interests and encumbrances (whether superior or inferior to the interests of Secured Party) other than that created by this Agreement; notwithstanding Secured Party's interest in proceeds, Debtor will not and will not allow any other party to consign, sell, rent, lend, enc...
ADDITIONAL WARRANTIES AND AGREEMENTS. Borrower warrants and agrees that: the Collateral is currently and, subject to ordinary use, will continue to be maintained in good operating condition and repair, and is currently and will continue to be used and operated with care only by personnel experienced in the use of such Collateral in the regular course of Borrower's business and in substantial compliance with all applicable governmental laws and regulations, manufacturer's specifications and the restrictions contained in any insurance policy insuring the Collateral; and, the Collateral is not currently and will not be used in conjunction with the storage, transportation or disposal of substances considered to be toxic or hazardous, as defined in applicable environmental laws, or in conjunction with any activity that would be illegal or would subject the Collateral to confiscation by any governmental entity. Borrower further warrants and agrees that: the security interest in the Collateral granted to or retained by CitiCapital is and will continue to be superior to any title to or interest in the Collateral now or hereafter held or claimed by any other party except as specifically agreed to in writing by CitiCapital; the Collateral is free from and will be kept free from all liens, claims, security interests and encumbrances (whether superior or inferior to the interests of CitiCapital) other than that created by this Agreement and except as specifically agreed to in writing by CitiCapital; Borrower will not and will not allow any other party to consign, sell, encumber, pledge, transfer, secrete or otherwise dispose of any of the Collateral without CitiCapital's prior written consent except for sales in the ordinary course of business by Borrower; Borrower will take such action as CitiCapital reasonably requests to perfect or preserve the interests granted to CitiCapital under this Agreement and the first priority of such interests; any Manufacturer's Statement or Certificate of Origin or Certificate of Title relating to the Collateral shall be immediately delivered to CitiCapital in the event of default and, if a Certificate of Title or registration is required for any item of Collateral, Borrower will cooperate with CitiCapital in obtaining the Certificate of Title or registration disclosing the interests of Borrower and CitiCapital in the Collateral; Borrower will defend any action, proceeding or claim affecting the Collateral or the interests of CitiCapital in the Collateral; Borrower shall p...
ADDITIONAL WARRANTIES AND AGREEMENTS. (a) If, on or prior to March 31, 2008, the Purchaser directly or indirectly sells or transfers (in a single transaction or through a series of related transactions) to any third party (other than a direct or indirect wholly owned Subsidiary of the Purchaser (disregarding directors’ qualifying shares and similar arrangements for purposes of determining whether a Subsidiary is wholly owned by the Purchaser for this purpose), provided that (A) such Subsidiary assumes all of the Purchaser’s obligations under this Agreement and (B) the Purchaser remains liable for any breach of this Agreement by such Subsidiary): (1) securities representing greater than 50% of the outstanding voting power, or economic interest in, the Company (whether by way of a sale of securities, merger or otherwise), or (2) all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole (it being understood that such a sale by the Purchaser of the outstanding securities of a wholly owned Subsidiary held by the Purchaser (disregarding directors’ qualifying shares and similar arrangements for purposes of determining whether a Subsidiary is wholly owned by the Purchaser for this purpose) shall constitute a direct or indirect sale of all or substantially all of the assets of such Subsidiary), then the Purchaser or the Obligor shall pay to the Earn Out Seller an amount equal to the Payment Fraction multiplied by the lesser of (i) €138,411,300, and (ii) 60% multiplied by the amount by which the Gross Sale Proceeds (as defined below) exceeds Past Consideration (as defined below). Notwithstanding anything to the contrary contained in this Agreement: (x) this Section 4(a) shall not apply to (1) a sale of any or all shares of the Purchaser (whether by way of merger, consolidation or otherwise); (2) a sale of substantially all of the assets of the Purchaser (including the shares of the Purchaser’s Subsidiaries); or (3) a sale of substantially all of the assets of the Purchaser (other than the shares of the Purchaser’s Subsidiaries) accompanied by a sale of substantially all of the assets of the Purchaser’s Subsidiaries; and (y) for the avoidance of doubt, “directly or indirectly sells or transfers” shall mean actually consummates a sale or transfer and shall not include the commencement of a process intended to result in a sale or transfer or the execution by the Purchaser or any of the Purchaser’s Related Parties of a definitive agreement with respect to a sale or transfe...
