Common use of Representations and Warranties Regarding Collateral Clause in Contracts

Representations and Warranties Regarding Collateral. (i) Counterparty has not (A) created or permitted to exist any Lien (as defined in this Annex A) (other than the Security Interests (as defined in this Annex A)) or any Transfer Restriction upon or with respect to the Collateral (as defined in this Annex A), (B) sold or otherwise disposed of, or granted any option with respect to, any of the Collateral or (C) entered into or consented to any agreement (other than, in the case of clause (xi), the Confirmation) (x) that restricts in any manner the rights of any present or future owner of any Collateral with respect EXECUTION thereto or (y) pursuant to which any person other than Counterparty, Dealer and any securities intermediary through whom any of the Collateral is held (but in the case of any such securities intermediary only in respect of Collateral held through it) has or will have Control (as defined in this Annex A) in respect of any Collateral. (ii) Other than financing statements or other similar or equivalent documents or instruments with respect to the Security Interests, no financing statement, security agreement or similar or equivalent document or instrument covering all or any part of (A) the Collateral or (B) any other assets of Counterparty is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect a lien, security interest or other encumbrance of any kind on such Collateral. (iii) All Collateral consisting of securities and all financial assets underlying Collateral consisting of security entitlements (each as defined in Section 8-102 of the UCC) at any time pledged hereunder is and will be issued by an issuer organized under the laws of the United States, any State thereof or the District of Columbia (or, if the issuer is organized elsewhere (a “Foreign Entity”), Counterparty shall have performed its covenant under paragraph (c)(i)(A) above in respect thereof) and is and will be represented by a certificate in the name of the Depository Trust Company or its nominee, without any restrictive legend (other than a restrictive legend which can be removed upon request), and held through a securities intermediary whose securities intermediary’s jurisdiction (within the meaning of Section 8-110(e) of the UCC) is located in the United States (or, if the issuer is a Foreign Entity, held as required by applicable law and Counterparty shall have performed its covenant under paragraph (c)(i)(A) above in respect thereof). (iv) No registration, recordation or filing with any governmental body, agency or official is required or necessary for the perfection or enforcement of the Security Interests, other than, with regard to Collateral that does not constitute investment property or a deposit account, the filing of a financing statement in any appropriate jurisdiction. (v) Counterparty has not performed and will not perform any acts that might reasonably be expected to prevent Dealer from enforcing any of the terms of Annex A or that might limit Dealer in any such enforcement.

Representations and Warranties Regarding Collateral. (ia) Counterparty has not Pursuant to the Liens created pursuant to Section 10.1 and pursuant to all of the other Security Documents (A) created or permitted to exist any Lien (as defined in this Annex Aif any) (including without limitation any and all UCC financing statements being filed by Administrative Agent against any Borrower), and assuming that any such Security Document that is intended to be filed with any governmental public recording office has been so filed, Administrative Agent has been granted and has a valid and perfected first priority security interest and Lien in the Collateral, including the Personal Property (subject only to any Permitted Liens permitted under the terms of this Agreement and the other Financing Documents) securing the payment of the Obligations and such security interests and Liens are entitled to all of the rights, priorities and benefits afforded by the UCC or other applicable Laws as enacted in any relevant jurisdiction which relate to perfected security interests. All such Collateral is free and clear of any Liens other than Permitted Liens. (b) Schedule 10.2(b) sets forth all of the Security Interests (as defined in this Annex A)) or any Transfer Restriction upon or with respect to the Collateral (as defined in this Annex A), (B) sold or otherwise disposed of, or granted any option with respect to, addresses at which any of the Collateral or (C) entered into or consented to any agreement (other than, in the case Personal Property is located and/or books and records of clause (xi), the Confirmation) (x) that restricts in any manner the rights of any present or future owner of any Collateral with respect EXECUTION thereto or (y) pursuant to which any person other than Counterparty, Dealer and any securities intermediary through whom Borrowers regarding any of the Collateral is held (but Personal Property are kept, indicating in each case which Borrower(s) have Personal Property and/or books and records located at such address, and, in the case of any such securities intermediary only address not owned or leased by one or more of the Borrower(s) and listed on Schedules 3.17 and 3.20, indicating the nature of such location (e.g., third party warehouse, consignment location, processor location, etc.) and the name and address of the third party operating such location. (c) Without limiting the generality of Section 3.2, no authorization, approval or other action by, and no notice to or filing with, any Governmental Authority or consent of any other Person is required with respect to Borrowers for (a) the grant by each Borrower to Administrative Agent of the security interests and Liens in the Collateral, including the Personal Property, provided for under this Agreement and the other Security Documents (if any) or (b) the exercise by Administrative Agent of its rights and remedies with respect to the Collateral, including the Personal Property, provided for under this Agreement and the other Security Documents or under any applicable Law including the UCC. (d) Each existing Account is and each hereafter arising Account will be: (i) based on an actual and bona fide sale of Collateral held through itgoods or rendition of services to the applicable Account Debtor, made by each applicable Borrower in the Ordinary Course of Business; (ii) has the exclusive property of the applicable Borrower free and clear of any Liens, consignment arrangements or financing statements whatsoever (other than Permitted Liens in favor of Administrative Agent created hereunder and under the other Security Documents) and (iii), the legal, valid and binding obligation of the applicable Account Debtor. The amount represented by Borrowers to Administrative Agent as owing by each Account Debtor with respect to each Account from time to time is and will be the correct amount actually and unconditionally owning from such Account Debtor with respect to such Account and will be the amount shown as owing on the invoice(s) issued by Borrowers to the Account Debtor with respect to such Account (subject to any cash payments received by Borrowers with respect to such Account subsequent to the issuance of such invoice). No Account Debtor has, or will have Control have, any defense, set-off, claim or counterclaim against the applicable Borrower that can be asserted against Administrative Agent with respect to any Account, whether in any proceeding to enforce Administrative Agent’s rights in the Collateral or otherwise, except for defenses, set-offs, claims or counterclaims that are not, in the aggregate, material to the value of the Accounts. None of the Accounts is nor will any hereafter arising Account be evidenced by a promissory note or other Instrument unless such Instrument is delivered by Borrowers to Administrative Agent within one (1) business day of the execution and delivery by the Account Debtor thereof. For the avoidance of doubt, none of the provisions of this paragraph (d) shall limit or be deemed to contradict any of the provisions of the definition of “Eligible Accounts”. (e) [RESERVED]. (f) [RESERVED]. (g) Except as set forth on Schedule 10.2(g), as of the Closing Date, no Borrower has any ownership interest in any commercial tort claims, documents or investment property. Borrowers shall execute and deliver any documents, agreements or instruments and take any other actions (and shall cause any necessary third parties to execute and deliver any documents, agreements or instruments and take any other actions) as Administrative Agent may request from time to time in order for Administrative Agent to perfect, preserve or protect the Liens, rights and remedies of Administrative Agent with respect to any such commercial tort claims or documents or investment property. (h) No Person other than Administrative Agent or (if applicable) any Lender has “control” (as defined in this Annex A) in respect of any Collateral. (ii) Other than financing statements or other similar or equivalent documents or instruments with respect to the Security Interests, no financing statement, security agreement or similar or equivalent document or instrument covering all or any part of (A) the Collateral or (B) any other assets of Counterparty is on file or of record in any jurisdiction in which such filing or recording would be effective to perfect a lien, security interest or other encumbrance of any kind on such Collateral. (iii) All Collateral consisting of securities and all financial assets underlying Collateral consisting of security entitlements (each as defined in Section 8-102 Article 9 of the UCC) at over any time pledged hereunder is Deposit Account, investment property (including securities accounts and will be issued by an issuer organized under the laws of the United States, any State thereof or the District of Columbia (or, if the issuer is organized elsewhere (a “Foreign Entity”commodities account), Counterparty shall have performed its covenant under paragraph letter of credit rights or electronic chattel paper in which any Borrower has any interest (c)(i)(A) above except for such control arising by operation of law in respect thereof) and is and will be represented by a certificate in the name favor of the Depository Trust Company any bank or its nominee, without any restrictive legend (other than a restrictive legend which can be removed upon request), and held through a securities intermediary whose or commodities intermediary with whom any Deposit Account, securities intermediary’s jurisdiction (within the meaning account or commodities account of Section 8-110(e) of the UCC) Borrowers is located in the United States (or, if the issuer is a Foreign Entity, held as required by applicable law and Counterparty shall have performed its covenant under paragraph (c)(i)(A) above in respect thereofmaintained). (ivi) No registrationExcept with respect to Accounts on which the Account Debtor is a Governmental Account Debtor making payments under Medicare, recordation or filing with Medicaid, and except as set forth on Schedule 10.2(h), no Borrower has any governmental bodyitem of Collateral that is a claim against any Governmental Authority, agency or official is required or necessary for including without limitation the perfection or enforcement federal government of the Security Interests, other than, with regard to Collateral that does not constitute investment property United States or a deposit accountany instrumentality or agency thereof, the filing assignment of a financing statement in which claim is restricted by any appropriate jurisdictionapplicable Law, including without limitation the federal Assignment of Claims Act and any other comparable Law. (v) Counterparty has not performed and will not perform any acts that might reasonably be expected to prevent Dealer from enforcing any of the terms of Annex A or that might limit Dealer in any such enforcement.