Representations and Warranties Regarding Collateral. (a) Pursuant to the Liens created pursuant to Section 10.1 and pursuant to all of the other Security Documents (if any) (including, without limitation, any and all UCC financing statements being filed by Administrative Agent against any Credit Party), 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. Except for the Patents, Trademarks and Copyrights disclosed on Schedule 3.19 (if any), none of the Collateral is federal registration collateral. To the best of Borrower’s Knowledge, all such Collateral is free and clear of any Liens other than Permitted Liens. (b) Schedule 10.2(b) sets forth all of the addresses at which any of the Personal Property is located and/or books and records of Borrowers regarding any of the 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 address not owned or leased by one or more of the Borrower(s) and listed on Schedule 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 for (i) 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 (ii) 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 goods or rendition of services to the applicable Account Debtor, made by each applicable Borrower in the Ordinary Course of Business; (ii) the exclusive property of the applicable Borrower free and clear of any Liens, consignment arrangements or financing statements whatsoever (other than Liens in favor of Administrative Agent created hereunder and under the other Security Documents) (and any and all goods and Inventory being sold by the applicable Borrower giving rise in whole or in part to such Account shall also be the exclusive property of such applicable Borrower free and clear of any such Liens, consignment arrangements and financing statements other than those in favor of Administrative Agent), 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, 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) All Inventory is and will be of good and merchantable quality, free from any material defects. No Inventory of any Borrower is produced or sold by the applicable Borrower subject to any licensing agreement (including any agreement regarding the use of any Intellectual Property) with any Person that would restrict in any way the ability of Borrowers or Administrative Agent to produce or sell such Inventory under any circumstances. Other than pursuant to Borrowers’ Returned Product Policy, no Borrower sells any Inventory to any customer on approval or on any other basis that entitles the Account Debtor to return such Inventory or which may obligate the applicable Borrower to repurchase such Inventory. No Inventory of any Borrower has been or will be produced in violation of any provision of the Fair Labor Standards Act of 1938 or in violation of any other Law. (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 Chattel Paper, letter of credit rights, commercial tort claims, documents or investment property that constitute part of the Collateral. 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 Chattel Paper, letter of credit rights, commercial tort claims or documents. (h) No Person other than Administrative Agent or (if applicable) any Lender has “control” (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including securities accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, securities account or commodities account of Borrowers is maintained). (i) Except as set forth on Schedule 10.2(i), no Borrower has any item of Collateral that is a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law.
Appears in 1 contract
Sources: Credit Agreement (Cyberonics Inc)
Representations and Warranties Regarding Collateral. (a) Pursuant to the Liens created pursuant to Section 10.1 and pursuant to all of the other Security Documents (if any) (including, without limitation, any and all UCC financing statements being filed by Administrative Agent against any Credit Party), 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. Except for the Patents, Trademarks and Copyrights disclosed on Schedule 3.19 (if any), none of the Collateral is federal registration collateralFederal Registration Collateral. To the best of Borrower’s Knowledge, all All such Collateral is free and clear of any Liens other than Permitted Liens.
(b) Schedule 10.2(b) (as amended from time to time in accordance with Section 10.3(a) below) sets forth all of the addresses at which any of the Personal Property is located and/or books and records of Borrowers regarding any of the 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 address not owned or leased by one or more of the Borrower(s) and listed on Schedule 3.203.20 (as amended from time to time in accordance with Section 10.3(a) below), 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 for (i) 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 (ii) 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 goods or rendition of services to the applicable Account Debtor, made by each applicable Borrower in the Ordinary Course of Business; (ii) the exclusive property of the applicable Borrower free and clear of any Liens, consignment arrangements or financing statements whatsoever (other than Liens in favor of Administrative Agent created hereunder and under the other Security Documents) (and any and all goods and Inventory being sold by the applicable Borrower giving rise in whole or in part to such Account shall also be the exclusive property of such applicable Borrower free and clear of any such Liens, consignment arrangements and financing statements other than those in favor of Administrative Agent), 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 or credit card payments received by Borrowers with respect to such Account subsequent to the issuance of such invoice). No Account Debtor has, or will 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 '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) All Inventory is and will be of good and merchantable quality, free from any material defects. No Inventory of any Borrower is produced or sold by the applicable Borrower subject to any licensing agreement (including any agreement regarding the use of any Intellectual Property) with any Person that would restrict in any way the ability of Borrowers or Administrative Agent to produce or sell such Inventory under any circumstances. Other than pursuant to Borrowers’ Returned Product Policy, no No Borrower sells any Inventory to any customer on approval or on any other basis that entitles the Account Debtor to return such Inventory or which may obligate the applicable Borrower to repurchase such Inventory. No Inventory of any Borrower has been or will be produced in violation of any provision of the Fair Labor Standards Act of 1938 or in violation of any other Law.
(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 Chattel Paper, letter of credit rights, commercial tort claims, documents or investment property that constitute part of the Collateral. 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 Chattel Paper, letter of credit rights, commercial tort claims or documents.
(h) No Person other than Administrative Agent or (if applicable) any Lender has “"control” " (as defined in Article 9 of the UCC) over any Deposit Account, investment property (including securities accounts and commodities account), letter of credit rights or electronic chattel paper in which any Borrower has any interest (except for such control arising by operation of law in favor of any bank or securities intermediary or commodities intermediary with whom any Deposit Account, securities account or commodities account of Borrowers is maintained).
(i) Except as set forth on Schedule 10.2(i10.2(h), no Borrower has any item of Collateral that is a claim against any Governmental Authority, including, without limitation, the federal government of the United States or any instrumentality or agency thereof, the assignment of which claim is restricted by any applicable Law, including, without limitation, the federal Assignment of Claims Act and any other comparable Law.
Appears in 1 contract