Common use of Other Liens; Adverse Claim Clause in Contracts

Other Liens; Adverse Claim. (a) Borrower represents and warrants, as of the date hereof, that: (i) it has not assigned any of its rights under any Accounts except as part of the Collateral; (ii) it has not executed and is not aware of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, except those in favor of the Collateral Agent; and (iii) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts and all financial assets held therein or credited thereto and all proceeds thereof hereunder. Borrower represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than Collateral Agent) any interest in any of the Accounts and that it has kept, and shall keep, the Accounts free from all other Liens (other than Liens in favor of the Collateral Agent and Permitted Liens). (b) Depositary, to the best of its knowledge without any independent investigation, represents and warrants that it has no knowledge of any Lien on any of the Accounts other than the claims and interest of the parties as provided herein. To the extent that Depositary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any security entitlement credited thereto, Depositary hereby subordinates to the security interest in the Accounts of Collateral Agent all property credited thereto, all security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accounts. (c) The financial assets credited to the Accounts shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than Collateral Agent and the Depositary.

Other Liens; Adverse Claim. (ai) Borrower The Company and each of the Guarantors represents and warrants, as of the date hereof, warrants that: (iA) it has not assigned any of its rights under any Accounts except as part of the CollateralAsset Sale Proceeds Account; (iiB) it has not executed and is not aware of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, Asset Sale Proceeds Account except those in favor of the Collateral Agent; and (iiiC) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts Asset Sale Proceeds Account and all financial assets and other assets held therein or credited thereto and all proceeds thereof hereunder. Borrower . (ii) The Company and each of the Guarantors represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than the Collateral Agent) Agent any interest in any of the Accounts Asset Sale Proceeds Account and that it has kept, and shall keep, the Accounts Asset Sale Proceeds Account free from all other Liens (other than Liens in favor of the Collateral Agent and Permitted Liens). (biii) Depositary, to the best of its knowledge without any independent investigation, The Depositary Agent represents and warrants that it has no actual knowledge (without having conducted an independent investigation or inquiry) of any Lien on any of the Accounts Asset Sale Proceeds Account other than the claims and interest of the parties hereto as provided herein. To In the extent event that the Depositary Agent has or subsequently obtains by agreement, operation of law or otherwise a security interest in any the Asset Sale Proceeds Account or any security entitlement financial asset or other asset credited thereto, the Depositary Agent hereby subordinates agrees that such security interest shall be subordinate to the security interest in of the Accounts of Collateral Agent all property for the benefit of the holders of the Secured Obligations. (iv) Each of the Collateral Agent and the Depositary Agent represents and warrants that it has no written notice (without having conducted an independent investigation or inquiry) of any adverse claim to the financial assets or other assets deposited in or credited thereto, all to the Asset Sale Proceeds Account or to security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accountsthereto. (cv) The financial assets and other assets credited to the Accounts Asset Sale Proceeds Account shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Collateral Agent and the DepositaryAgent.

Other Liens; Adverse Claim. (a) Borrower represents and warrants, as of the date hereof, warrants that: (i) it has not assigned any of its rights under any the Accounts except as part of permitted herein or by the Collateralother First Lien Collateral Documents and the Junior Security Documents; (ii) it has not executed and is not aware has no Knowledge of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, except those such as may have been filed in favor of connection with this Agreement or the other First Lien Collateral AgentDocuments, the Junior Security Documents, the Energy Hedge Provider Control Agreement and other Permitted Liens; and (iii) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts and all financial assets held therein or credited thereto and all proceeds thereof hereunder. Borrower represents, warrants and covenants that it has not granted, and shall not grant, subject to any Person (other than Collateral Agent) any interest in any of the Accounts and that it has kept, and shall keep, the Accounts free from all other Liens (other than Liens in favor of the Collateral Agent and Permitted Liens). (b) Depositary, Depositary represents and warrants that to the best of its knowledge without any independent investigation, represents and warrants that it has investigation there is no knowledge of any Lien on any of the Accounts other than Permitted Liens, other than the claims and interest of the parties as provided herein. To In the extent event that Depositary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any security entitlement credited theretothereto other than Permitted Liens, Depositary hereby subordinates agrees that such security interest shall be subordinate to the security interest in the Accounts of Collateral Agent all property for the benefit of the Secured Parties. (c) Depositary represents and warrants that to its knowledge without any independent investigation it has no notice of any adverse claim to the financial assets deposited in or credited thereto, all to the various Accounts or to security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accountsthereto. (cd) The financial assets credited to the Accounts shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than Collateral Agent (except for Permitted Liens and to the Depositaryextent of returned items and chargebacks either for uncollected checks or other items of payment and transfers previously credited to one or more of the Accounts and Borrower and Collateral Agent hereby authorize Depositary to debit the relevant Accounts for such amount).

Other Liens; Adverse Claim. (a) Borrower represents and warrants, as of the date hereof, warrants that: (i) it has not assigned any of its rights under any the Accounts except as part of permitted herein or by the Collateralother Financing Documents and the Junior Security Documents; (ii) it has not executed and is not aware has no Knowledge of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, except those such as may have been filed in favor of connection with this Agreement or the Collateral Agentother Financing Documents, the CS Control Agreement and other Permitted Liens; and (iii) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts and all financial assets held therein or credited thereto and all proceeds thereof hereunder, subject to Permitted Liens. Borrower represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than Collateral Administrative Agent) any interest in any of the Accounts except such as may have been granted in connection with this Agreement, the Junior Security Documents or the Permitted Liens and that it has kept, and shall keep, the Accounts free from all other Liens (other than Liens in favor of the Collateral Agent and Permitted Liens). (b) Depositary, Depositary represents and warrants that to the best of its knowledge without any independent investigation, represents and warrants that it has investigation there is no knowledge of any Lien on any of the Accounts other than Permitted Liens, other than the claims and interest of the parties as provided herein. To In the extent event that Depositary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any security entitlement credited theretothereto other than Permitted Liens, Depositary hereby subordinates agrees that such security interest shall be subordinate to the security interest of Administrative Agent for the benefit of the Secured Parties. (c) Depositary represents and warrants that to its knowledge without any independent investigation it has no notice of any adverse claim to the financial assets deposited in or credited to the various Accounts of Collateral Agent all property credited thereto, all or to security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accountsthereto. (cd) The financial assets credited to the Accounts shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than Collateral Administrative Agent (except for Permitted Liens and to the Depositaryextent of returned items and chargebacks either for uncollected checks or other items of payment and transfers previously credited to one or more of the Accounts and Borrower and Administrative Agent hereby authorize Depositary to debit the relevant Accounts for such amount).

Other Liens; Adverse Claim. (ai) Borrower The Company and each of the Guarantors represents and warrants, as of the date hereof, warrants that: (iA) it has not assigned any of its rights under any Accounts except as part of the CollateralCollateral Account; (iiB) it has not executed and is not aware of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, Collateral Account except those in favor of the Collateral Agent; and (iiiC) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts Collateral Account and all financial assets and other assets held therein or credited thereto and all proceeds thereof hereunder. Borrower . (ii) The Company and each of the Guarantors represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than the Collateral Agent) Agent any interest in any of the Accounts Collateral Account and that it has kept, and shall keep, the Accounts Collateral Account free from all other Liens (other than Liens in favor of the Collateral Agent and Permitted Liens). (biii) Depositary, to the best of its knowledge without any independent investigation, The Depositary Agent represents and warrants that it has no actual knowledge (without having conducted an independent investigation or inquiry) of any Lien on any of the Accounts Collateral Account other than the claims and interest of the parties hereto as provided herein. To In the extent event that the Depositary Agent has or subsequently obtains by agreement, operation of law or otherwise a security interest in any the Collateral Account or any security entitlement financial asset or other asset credited thereto, the Depositary Agent hereby subordinates agrees that such security interest shall be subordinate to the security interest in of the Accounts of Collateral Agent all property for the benefit of the holders of the Secured Obligations. (iv) Each of the Collateral Agent and the Depositary Agent represents and warrants that it has no written notice (without having conducted an independent investigation or inquiry) of any adverse claim to the financial assets or other assets deposited in or credited thereto, all to the Collateral Account or to security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accountsthereto. (cv) The financial assets and other assets credited to the Accounts Collateral Account shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Collateral Agent and the DepositaryAgent.

Other Liens; Adverse Claim. (a) The Borrower represents and warrantswarrants that, as of the date hereof, thatEffective Date: (i) it has not assigned any of its rights under any the Accounts except as part of other than pursuant to the CollateralFinancing Documents; (ii) it has not executed and there is not aware of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, except those such as may have been filed in favor connection with this Agreement or the other Financing Documents or, with respect to such other instrument, in respect of the Collateral AgentPermitted Liens; and (iii) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts and all financial assets Financial Assets held therein or credited thereto and all proceeds thereof hereunder, subject to Permitted Liens. The Borrower represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than Collateral Agentthe Common Security Trustee) any interest in any of the Accounts except such as may have been granted in connection with this Agreement or Permitted Liens and that it has kept, and shall keep, the Accounts free from all other Liens (other than Liens in favor of the Collateral Agent and Permitted Liens). (b) Depositary, to the best of its knowledge without any independent investigation, The Accounts Bank represents and warrants that it has to its knowledge there is no knowledge of any Lien on any of the Accounts other than Permitted Liens and the claims and interest of the parties as provided herein. To Except as otherwise provided in Section 3.05(c) (Other Liens; Adverse Claim), in the extent event that Depositary the Accounts Bank has or subsequently obtains by agreement, operation of law Government Rule or otherwise a security interest in any Account or any security entitlement credited theretothereto other than Permitted Liens, Depositary the Accounts Bank hereby subordinates agrees that such security interest shall be fully subordinated in payment and with respect to any right to exercise remedies to the security interest in the Accounts of Collateral Agent all property credited thereto, all security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement Common Security Trustee for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration benefit of the AccountsSecured Parties. (c) The financial assets Accounts Bank represents and warrants on the date hereof that it has no notice of any adverse claim to the Financial Assets deposited in or credited to the various Accounts or to security entitlements with respect thereto. If any Person asserts any Lien (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Account or in any Financial Assets deposited in, or credited to, the various Accounts or to security entitlements with respect thereto, the Accounts Bank, upon obtaining actual knowledge thereof, will promptly notify the Common Security Trustee and the Borrower thereof. (d) The Financial Assets credited to the Accounts shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person (including the Accounts Bank) other than Collateral Agent the Common Security Trustee (except for Permitted Liens and to the Depositaryextent of returned items and chargebacks either for uncollected checks or other items of payment and transfers previously credited to one or more of the Accounts).