52 | The Practical Lawyer June 2011
Debtor’s name and (b) changes to Debtor’s type of organization, jurisdiction of organization, or other
legal structure; and (ii) on or before the rst Quarterly Update Date following changes to Debtor’s orga-
nizational identication number (if it has one) or if it obtains an organizational identication number
(if it does not yet have one).
REPRESENTATIONS, WARRANTIES, AND COVENANTS
CONCERNING THE COLLATERAL
a. Overview: The debtor typically represents and warrants to the secured party that: the debtor has suf-
cient rights in, or power to transfer rights in, the collateral for the secured party’s security interest to attach
(§9-203(b)(2)); the collateral is either not encumbered or, if encumbered, the encumbrances are permitted
under the credit agreement (“Permitted Liens”); and the debtor will take all actions necessary to ensure
continued perfection of the secured party’s security interest in the collateral, including (if applicable) actions
necessary to perfect a security interest in after-acquired collateral.
If any of the collateral constitutes “farm products,” as dened in section 9-102(a)(34), the debtor should
inform the secured party, so that the secured party can decide whether to take appropriate steps to obtain
governmental consents under federal agricultural entitlement programs, to obtain waivers or subordina-
tions from suppliers whose claims for unpaid purchase prices for agricultural supplies may have priority un-
der federal law (e.g., the Packers and Stockyards Act of 1921, 7 U.S.C. §196, and the Perishable Agricultural
Commodities Act of 1930, 7 U.S.C. §499e(c)), or to preserve its security interest, or the proceeds thereof, fol-
lowing the disposition of the farm product collateral under the Food Security Act of 1985, 7 U.S.C. §1631.
If any of the accounts or other rights to payment comprised in the collateral are owned by governmental
account debtors, the debtor should inform the secured party, and the secured party may wish to take steps
under the FAOCA or any similar state statute to receive payments directly from the governmental account
debtors.
The secured party may request a representation and warranty that the debtor has complied with labor
and environmental laws where failure of the debtor to comply may result in a superior claim against, or
interest in, the collateral. There is often an analogous representation and warranty in the credit agreement
— the two should be drafted consistently. Similarly, other representations, warranties, and covenants may
be covered in both documents, including those relating to insurance, inspection, books and records, and
disposition of collateral. If covered in both the credit agreement and the security agreement, it is crucial
that the provisions be the same.
Some security agreements include a representation and covenant that all subsidiaries that are limited
partnerships and limited liability companies have opted into Article 8 of the U.C.C., so that all limited
partnership interests and the limited liability company interests are Article 8 securities rather than general
intangibles, thereby enabling the secured party to perfect by ling, possession and/or control, rather than
perfecting only by ling (i.e., general intangibles can only be perfected by ling) (§9-310; §9-313(a); §9-314).
This is because circumstances may change after closing that could affect the characterization of the collat-
eral. A limited liability company’s operating agreement may not, on the closing date, classify the member-
ship interests as “Article 8 securities.” If not so classied, the limited liability company will be a general in-
tangible, and a nancing statement ling is the only method of perfection. If, after the closing, the operating
agreement is amended to provide that the membership interests are Article 8 securities, the secured party