Representations Relating to Security Interests in the Assets. (a) The Borrower hereby represents and warrants that, as of the Closing Date (which representations and warranties shall survive the execution of this Agreement and be deemed to be repeated on each date on which an Asset is Granted to the Collateral Trustee under the Indenture), with respect to the Assets: (i) The Borrower owns such Asset free and clear of any lien, claim or encumbrance of any person, other than such as are (i) created under, or permitted by, the Indenture and (ii) released on the related Cut-Off Date contemporaneously with the purchase of such Asset on the Cut-Off Date. (ii) Other than the security interest Granted to the Collateral Trustee pursuant to the Indenture, except as permitted by the Indenture, the Borrower has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Assets. The Borrower has not authorized the filing of and is not aware of any Financing Statements against the Borrower that include a description of collateral covering the Assets other than any Financing Statement relating to the security interest Granted to the Collateral Trustee under the Indenture or that has been terminated; the Borrower is not aware of any judgment, PBGC liens or Tax lien filings against the Borrower. (iii) All Accounts constitute “securities accounts” under Article 8 of the UCC. (iv) The Indenture creates a valid and continuing security interest (as defined in Article 1 of the UCC) in such Assets in favor of the Collateral Trustee, for the benefit and security of the Secured Parties, which security interest is prior to all other liens, claims and encumbrances (except as permitted otherwise in the Indenture), and is enforceable as such against creditors of and purchasers from the Borrower; provided that, the Indenture will only create a security interest in those commercial tort claims, if any, and timber to be cut, if any, that are described in a notice delivered to the Collateral Trustee as contemplated by Section 7.5(d) of the Indenture. (v) The Borrower has caused or shall have caused, within ten (10) days of the Closing Date, the filing of all appropriate Financing Statements in the proper office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets Granted to the Collateral Trustee, for the benefit and security of the Secured Parties. (vi) None of the Instruments that constitute or evidence the Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Collateral Trustee, for the benefit of the Secured Parties. (vii) The Borrower has received any consents and approvals required by the terms of the Assets to the pledge under the Indenture to the Collateral Trustee of its interest and rights in the Assets. (viii) (A) the Borrower has delivered to the Collateral Trustee a fully executed Securities Account Control Agreement pursuant to which the Custodian has agreed to comply with all instructions originated by the Collateral Trustee relating to the Accounts without further consent by the Borrower or (B) the Borrower has taken all steps necessary to cause the Custodian to identify in its records the Collateral Trustee as the person having a Security Entitlement against the Custodian in each of the Accounts. (ix) The Accounts are not in the name of any person other than the Borrower or the Collateral Trustee. The Borrower has not consented to the Custodian complying with the Entitlement Order of any person other than the Collateral Trustee (and the Borrower prior to a notice of exclusive control being provided by the Collateral Trustee, which notice the Collateral Trustee agrees it shall not deliver except after the occurrence and during the continuance of an Event of Default). (x) The Borrower agrees to promptly provide notice to the Rating Agencies if it becomes aware of the breach of any of the representations and warranties contained in this Section 5.15 and shall not waive any of the representations and warranties in this Section 5.15.
Appears in 1 contract
Samples: Credit Agreement (Bain Capital Specialty Finance, Inc.)
Representations Relating to Security Interests in the Assets. (a) The Borrower Issuer hereby represents and warrants that, as of the Closing Date (which representations and warranties shall survive the execution of this Agreement Indenture and be deemed to be repeated on each date on which an Asset is Granted to the Collateral Trustee under the Indenturehereunder), with respect to the Assets:
(i) This Indenture creates valid and continuing security interests (as defined in the applicable Uniform Commercial Code) in the Assets in favor of the Trustee for the benefit of the Secured Parties, which security interest is prior to all other liens, claims and encumbrances and is enforceable as such as against creditors of and purchasers from the Issuer, except as otherwise permitted under this Indenture.
(ii) The Borrower Issuer owns such Asset the Assets free and clear of any lien, claim or encumbrance of any personPerson, other than such as are (i) the security interests created under, or permitted by, the Indenture and (ii) released on the related Cut-Off Date contemporaneously with the purchase of such Asset on the Cut-Off Dateunder this Indenture.
(iiiii) The Issuer has received all consents and approvals required by the terms of any item of Assets to the transfer to the Trustee of its interest and rights in the Assets hereunder.
(iv) All Assets other than the Accounts has been credited to one or more Accounts (other than any “general intangibles” within the meaning of the applicable Uniform Commercial Code, any instruments evidencing debt underlying a participation held by a collateral agent).
(v) The Securities Intermediary for each Account has agreed to treat all assets credited to each Account as “financial assets” within the meaning of the applicable Uniform Commercial Code.
(vi) The Issuer has taken all steps necessary to cause the Securities Intermediary to identify in its records the Trustee as the Entitlement Holder of each of the Accounts. The Accounts are not in the name of any person other than the Trustee. The Issuer has not consented for the Securities Intermediary of any Account to comply with entitlement orders of any person other than the Trustee.
(vii) None of the promissory notes that constitute or evidence the Assets have any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than to the Trustee.
(viii) The Issuer has caused or will have caused, within ten days of the Closing Date, the filing of all appropriate Financing Statements in the proper filing offices in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets Granted to the Trustee hereunder.
(ix) Other than the security interest Granted to the Collateral Trustee pursuant to the Indenture, except as expressly permitted by the under this Indenture, the Borrower Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Assets. The Borrower Issuer has not authorized the filing of and is not aware of any Financing Statements against the Borrower that include a description of collateral covering the Assets Issuer other than any Financing Statement relating to the security interest Granted granted to the Collateral Trustee under the this Indenture (or that any such Financing Statement has been terminated; terminated on or before the Borrower Closing Date). The Issuer is not aware of any judgment, PBGC liens tax lien filing or Tax Pension Benefit Guaranty Corporation lien filings filing against the BorrowerIssuer.
(iii) All Accounts constitute “securities accounts” under Article 8 of the UCC.
(ivb) The Indenture creates a valid and continuing security interest (as defined in Article 1 of the UCC) in such Assets in favor of the Collateral Trustee, for the benefit and security of the Secured Parties, which security interest is prior to all other liens, claims and encumbrances (except as permitted otherwise in the Indenture), and is enforceable as such against creditors of and purchasers from the Borrower; provided that, the Indenture will only create a security interest in those commercial tort claims, if any, and timber to be cut, if any, that are described in a notice delivered to the Collateral Trustee as contemplated by Section 7.5(d) of the Indenture.
(v) The Borrower has caused or shall have caused, within ten (10) days of the Closing Date, the filing of all appropriate Financing Statements in the proper office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets Granted to the Collateral Trustee, for the benefit and security of the Secured Parties.
(vi) None of the Instruments that constitute or evidence the Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Collateral Trustee, for the benefit of the Secured Parties.
(vii) The Borrower has received any consents and approvals required by the terms of the Assets to the pledge under the Indenture to the Collateral Trustee of its interest and rights in the Assets.
(viii) (A) the Borrower has delivered to the Collateral Trustee a fully executed Securities Account Control Agreement pursuant to which the Custodian has agreed to comply with all instructions originated by the Collateral Trustee relating to the Accounts without further consent by the Borrower or (B) the Borrower has taken all steps necessary to cause the Custodian to identify in its records the Collateral Trustee as the person having a Security Entitlement against the Custodian in each of the Accounts.
(ix) The Accounts are not in the name of any person other than the Borrower or the Collateral Trustee. The Borrower has not consented to the Custodian complying with the Entitlement Order of any person other than the Collateral Trustee (and the Borrower prior to a notice of exclusive control being provided by the Collateral Trustee, which notice the Collateral Trustee agrees it shall not deliver except after the occurrence and during the continuance of an Event of Default).
(x) The Borrower Issuer agrees to promptly provide notice to the Rating Agencies Moody’s if it becomes aware of the breach of any of the representations and warranties contained in this Section 5.15 and shall not waive any of the representations and warranties in this Section 5.157.18.
Appears in 1 contract
Samples: Indenture
Representations Relating to Security Interests in the Assets. (a) The Borrower Issuer hereby represents and warrants that, as of the Closing Refinancing Date (which representations and warranties shall survive the execution of this Agreement Indenture and be deemed to be repeated on each date on which an Asset is Granted to the Collateral Trustee under the Indenturehereunder), with respect to the Assets:
(i) The Borrower Issuer owns such Asset free and clear of any lien, claim or encumbrance of any person, other than such as are (i) created under, or permitted by, the Indenture and (ii) this Indenture, other than such as are released on the related Cut-Off Date contemporaneously with the purchase of such Asset on the Cut-Off Date.
(ii) Other than the security interest Granted to the Collateral Trustee pursuant to the this Indenture, except as permitted by the this Indenture, the Borrower Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Assets. The Borrower Issuer has not authorized the filing of and is not aware of any Financing Statements against the Borrower Issuer that include a description of collateral covering the Assets other than any Financing Statement relating to the security interest Granted to the Collateral Trustee under the Indenture hereunder or that has been terminated; the Borrower Issuer is not aware of any judgment, PBGC liens or Tax tax lien filings against the BorrowerIssuer.
(iii) All Accounts constitute “securities accounts” under Article 8 of the UCC.
(iv) The This Indenture creates a valid and continuing security interest (as defined in Article 1 of the UCC) in such Assets in favor of the Collateral Trustee, for the benefit and security of the Secured Parties, which security interest is prior to all other liens, claims and encumbrances (except as permitted otherwise in the this Indenture), and is enforceable as such against creditors of and purchasers from the BorrowerIssuer; provided that, the that this Indenture will only create a security interest in those commercial tort claims, if any, and timber to be cut, if any, that are described in a notice delivered to the Collateral Trustee as contemplated by Section 7.5(d) of the Indenture).
(v) The Borrower Issuer has caused or shall have caused, within ten (10) days of the Closing Date, the filing of all appropriate Financing Statements in the proper office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets Granted to the Collateral Trustee, for the benefit and security of the Secured Parties.
(vi) None of the Instruments that constitute or evidence the Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Collateral Trustee, for the benefit of the Secured Parties.
(vii) The Borrower Issuer has received any consents and approvals required by the terms of the Assets to the pledge under the Indenture hereunder to the Collateral Trustee of its interest and rights in the Assets.
(viii) (A) the Borrower The Issuer has delivered to the Collateral Trustee a fully executed Securities Account Control Agreement pursuant to which the Custodian has agreed to comply with all instructions originated by the Collateral Trustee relating to the Accounts without further consent by the Borrower Issuer or (B) the Borrower Issuer has taken all steps necessary to cause the Custodian to identify in its records the Collateral Trustee as the person having a Security Entitlement against the Custodian in each of the Accounts.
(ix) The Accounts are not in the name of any person other than the Borrower Issuer or the Collateral Trustee. The Borrower Issuer has not consented to the Custodian complying to comply with the Entitlement Order of any person other than the Collateral Trustee (and the Borrower Issuer prior to a notice of exclusive control being provided by the Collateral Trustee, which notice the Collateral Trustee agrees it shall not deliver except after the occurrence and during the continuance of an Event of Default).
(x) The Borrower Issuer agrees to promptly provide notice to the Rating Agencies Agency if it becomes aware of the breach of any of the representations and warranties contained in this Section 5.15 7.18 and shall not waive any of the representations and warranties in this Section 5.157.18.
Appears in 1 contract
Representations Relating to Security Interests in the Assets. (a) The Borrower hereby represents and warrants that, as of the Closing Date (which representations and warranties shall survive the execution of this Agreement and be deemed to be repeated on each date on which an Asset is Granted to the Collateral Trustee under the Indenture), with respect to the Assets:
(i) The Borrower owns such Asset free and clear of any lien, claim or encumbrance of any personPerson, other than such as are (i) created under, being released on the Closing Date contemporaneously with the sale or permitted by, the Indenture and (ii) released incurrence of the Debt on the Closing Date or on the related Cut-Off Date contemporaneously with the purchase of such Asset on the Cut-Off Date, created under, or permitted by, the Indenture and any other Permitted Liens.
(ii) Other than the security interest Granted to the Collateral Trustee for the benefit of the Secured Parties pursuant to the Indenture, except as permitted by the Indenture, the Borrower has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Assets. The Borrower has not authorized the filing of and is not aware of any Financing Statements against the Borrower that include a description of collateral covering the Assets other than any Financing Statement relating to the security interest Granted to the Collateral Trustee under the Indenture or that has been terminated; the Borrower is not aware of any judgment, PBGC liens or Tax tax lien filings against the Borrower.
(iii) All Assets constitute Cash, accounts (as defined in Section 9-102(a)(2) of the UCC), Instruments, general intangibles (as defined in Section 9-102(a)(42) of the UCC), uncertificated securities (as defined in Section 8-102(a)(18) of the UCC), Certificated Securities or security entitlements to financial assets resulting from the crediting of financial assets to a “securities account” (as defined in Section 8-501(a) of the UCC).
(iv) All Accounts constitute “securities accounts” under Article 8 Section 8-501(a) of the UCC.
(ivv) The Indenture creates a valid and continuing security interest (as defined in Article 1 Section 1-201(37) of the UCC) in such Assets in favor of the Collateral Trustee, for the benefit and security of the Secured Parties, which security interest is prior to all other liens, claims and encumbrances (except as permitted otherwise in the Indenture), and is enforceable as such against creditors of and purchasers from the Borrower; provided .
(b) The Borrower hereby represents and warrants that, as of the Indenture will only create a security interest in those commercial tort claims, if any, Closing Date (which representations and timber warranties shall survive the execution of this Agreement and be deemed to be cut, if any, that are described in a notice delivered repeated on each date on which an Asset is Granted to the Collateral Trustee as contemplated by Section 7.5(d) of under the Indenture.), with respect to Assets that constitute Instruments:
(vi) The Either (x) the Borrower has caused or shall have caused, within ten (10) days of after the Closing Date, the filing of all appropriate Financing Statements in the proper office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets Instruments Granted to the Collateral Trustee, for the benefit and security of the Secured Parties.
Parties or (viy)(A) None all original executed copies of each promissory note or mortgage note that constitutes or evidences the Instruments have been delivered to the Collateral Trustee or the Borrower has received written acknowledgement from a custodian that such custodian is holding the mortgage notes or promissory notes that constitute evidence of the Instruments solely on behalf of the Collateral Trustee and for the benefit of the Secured Parties and (B) none of the Instruments that constitute or evidence the Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Collateral Trustee, for the benefit of the Secured Parties.
(viiii) The Borrower has received any all consents and approvals required by the terms of the Assets to the pledge under the Indenture to the Collateral Trustee of its interest and rights in the Assets.
(viiic) The Borrower hereby represents and warrants that, as of the Closing Date (A) which representations and warranties shall survive the Borrower has delivered execution of the Indenture and be deemed to be repeated on each date on which an Asset is Granted to the Collateral Trustee a fully executed under the Indenture), with respect to the Assets that constitute Security Entitlements:
(i) All of such Assets have been and will have been credited to one of the Accounts which are securities accounts within the meaning of Section 8-501(a) of the UCC. The Securities Intermediary for each Account Control Agreement pursuant to which the Custodian has agreed to comply with treat all instructions originated assets credited to such Accounts as “financial assets” within the meaning of Section 8-102(a)(9) the UCC.
(ii) The Borrower has received all consents and approvals required by the terms of the Assets to the pledge under the Indenture to the Collateral Trustee relating to the Accounts without further consent by the Borrower or (B) the Borrower has taken all steps necessary to cause the Custodian to identify in of its records the Collateral Trustee as the person having a Security Entitlement against the Custodian in each of the Accounts.
(ix) The Accounts are not interest and rights in the name of any person other than the Borrower or the Collateral Trustee. The Borrower has not consented to the Custodian complying with the Entitlement Order of any person other than the Collateral Trustee (and the Borrower prior to a notice of exclusive control being provided by the Collateral Trustee, which notice the Collateral Trustee agrees it shall not deliver except after the occurrence and during the continuance of an Event of Default)Assets.
(x) The Borrower agrees to promptly provide notice to the Rating Agencies if it becomes aware of the breach of any of the representations and warranties contained in this Section 5.15 and shall not waive any of the representations and warranties in this Section 5.15.
Appears in 1 contract
Samples: Credit Agreement (AG Twin Brook Capital Income Fund)
Representations Relating to Security Interests in the Assets. (a) The Borrower hereby represents and warrants that, as of the Closing Loan Date (which representations and warranties shall survive the execution of this Agreement and be deemed to be repeated on each date on which an Asset is Granted to the Collateral Trustee under the IndentureIndenture and Security Agreement), with respect to the Assets:
(i) The Borrower owns such each Asset free and clear of any lien, claim or encumbrance of any personPerson, other than such as are (i) created underbeing released on the Loan Date contemporaneously with the sale or incurrence, as applicable, of the Debt on the Loan Date or permitted by, the Indenture and (ii) released on the related Cut-Off Date contemporaneously with the purchase of such Asset on the Cut-Off Date, created under, or permitted by, the Indenture and Security Agreement and any other Permitted Liens.
(ii) Other than the security interest Granted to the Collateral Trustee pursuant to the IndentureIndenture and Security Agreement, except as permitted by the IndentureIndenture and Security Agreement, the Borrower has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Assets. The Borrower has not authorized the filing of and is not aware of any Financing Statements against the Borrower that include a description of collateral covering the Assets other than any Financing Statement relating to the security interest Granted granted to the Collateral Trustee under the Indenture and Security Agreement or that has been terminated; the Borrower is not aware of any judgment, PBGC liens or Tax lien filings against the Borrower.
(iii) All Assets constitute Cash, accounts (as defined in Section 9-102(a)(2) of the UCC), Instruments, general intangibles (as defined in Section 9-102(a)(42) of the UCC), uncertificated securities (as defined in Section 8-102(a)(18) of the UCC), Certificated Securities or security entitlements to financial assets resulting from the crediting of financial assets to a “securities account” (as defined in Section 8-501(a) of the UCC).
(iv) All Accounts constitute “securities accounts” under Article 8 Section 8-501(a) of the UCC or “deposit accounts” (as defined in Section 9-102(a) of the UCC).
(ivv) The Indenture and Security Agreement creates a valid and continuing security interest (as defined in Article 1 Section 1-201(37) of the UCC) in such Assets in favor of the Collateral Trustee, for the benefit and security of the Secured Parties, which security interest is prior to all other liens, claims and encumbrances (except as permitted otherwise in the IndentureIndenture and Security Agreement), and is enforceable as such against creditors of and purchasers from the Borrower; provided .
(b) The Borrower hereby represents and warrants that, as of the Indenture will only create a security interest in those commercial tort claims, if any, Loan Date (which representations and timber warranties shall survive the execution of this Agreement and be deemed to be cut, if any, that are described in a notice delivered repeated on each date on which an Asset is Granted to the Collateral Trustee as contemplated by Section 7.5(d) of under the Indenture.Indenture and Security Agreement), with respect to Assets that constitute Instruments:
(vi) The Either (x) the Borrower has caused or shall have caused, within ten (10) days of after the Closing Loan Date, the filing of all appropriate Financing Statements in the proper office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Assets Granted Instruments granted to the Collateral Trustee, for the benefit and security of the Secured Parties.
Parties or (viy)(A) None all original executed copies of each promissory note or mortgage note that constitutes or evidences the Instruments have been delivered to the Collateral Trustee or the Borrower has received written acknowledgement from a custodian that such custodian is holding the mortgage notes or promissory notes that constitute evidence of the Instruments solely on behalf of the Collateral Trustee and for the benefit of the Secured Parties and (B) none of the Instruments that constitute or evidence the Assets has any marks or notations indicating that they have been pledged, assigned or otherwise conveyed to any Person other than the Collateral Trustee, for the benefit of the Secured Parties.
(viiii) The Borrower has received any all consents and approvals required by the terms of the Assets to the pledge under the Indenture and Security Agreement to the Collateral Trustee of its interest and rights in the Assets.
(viiic) The Borrower hereby represents and warrants that, as of the Loan Date (A) which representations and warranties shall survive the Borrower has delivered execution of this Agreement and the Indenture and Security Agreement and be deemed to be repeated on each date on which an Asset is Granted to the Collateral Trustee under the Indenture and Security Agreement), with respect to the Assets that constitute Security Entitlements:
(i) All of such Assets have been and will have been credited to one of the Accounts which are securities accounts within the meaning of Section 8-501(a) of the UCC or “deposit accounts” as defined in Section 9-102(a) of the UCC. The Securities Intermediary for each Account that is a fully executed Securities Account Control Agreement pursuant to which the Custodian securities account has agreed to comply with treat all instructions originated assets other than cash or general intangibles credited to such Accounts as “financial assets” within the meaning of Section 8-102(a)(9) the UCC.
(ii) The Borrower has received all consents and approvals required by the terms of the Assets to the pledge under the Indenture and Security Agreement to the Collateral Trustee relating to the Accounts without further consent by the Borrower or (B) the Borrower has taken all steps necessary to cause the Custodian to identify in of its records the Collateral Trustee as the person having a Security Entitlement against the Custodian in each of the Accounts.
(ix) The Accounts are not interest and rights in the name of any person other than the Borrower or the Collateral Trustee. The Borrower has not consented to the Custodian complying with the Entitlement Order of any person other than the Collateral Trustee (and the Borrower prior to a notice of exclusive control being provided by the Collateral Trustee, which notice the Collateral Trustee agrees it shall not deliver except after the occurrence and during the continuance of an Event of Default)Assets.
(x) The Borrower agrees to promptly provide notice to the Rating Agencies if it becomes aware of the breach of any of the representations and warranties contained in this Section 5.15 and shall not waive any of the representations and warranties in this Section 5.15.
Appears in 1 contract
