Common use of Representations, Warranties and Covenants of Accounts Bank Clause in Contracts

Representations, Warranties and Covenants of Accounts Bank. The Accounts Bank hereby represents, warrants, covenants and agrees as follows: (a) it is a securities intermediary on the date hereof and shall act as such in maintaining the Project Accounts and all of the Account Collateral (including all securities and other financial assets or security entitlements deposited in or credited to the Project Accounts) from time to time transferred, deposited in or credited to or maintained in the Project Accounts; (b) it is the bank with which each Project Account is maintained and the securities intermediary with respect to the financial assets held in the Project Accounts. In this regard, (i) if the Accounts Bank has knowledge that an issuer of any financial asset is required to make a payment or distribution in respect of such financial asset, the Accounts Bank shall have fulfilled its duty under applicable Law to take action to obtain such payment or distribution if (A) it credits such payment or distribution to the Project Accounts in accordance with this Accounts Agreement if such payment or distribution is made or (B) it notifies the Borrower and the Collateral Agent that such payment or distribution has not been made, and (ii) if the Accounts Bank is required by applicable Law or this Accounts Agreement to credit to any Project Account any financial asset purported to be transferred or credited to the Accounts Bank pursuant to applicable Law, the Accounts Bank shall have fulfilled its duty to so credit any Project Account if it credits as a security entitlement to the applicable party whatever rights the Accounts Bank purportedly has in the financial asset transferred or credited to the Accounts Bank and the Accounts Bank shall have no duty to ensure that applicable Law has been complied with in respect of the transfer of the financial asset or to create a security interest in or Lien on any financial asset purported to be transferred or credited to the Accounts Bank and subsequently credited to any Project Account; (c) it shall promptly perform all duties imposed upon a securities intermediary and a bank under the UCC, other applicable Law and this Accounts Agreement; (d) the Collateral Agent, for the benefit of the Senior Secured Parties, and no other Person, is the Accounts Bank’s customer with respect to the Project Accounts, and the Borrower has consented to the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, being deemed the customer hereunder; (e) the Securities Intermediary’s jurisdiction, for purposes of this Accounts Agreement and Article 8 of the UCC, is and shall continue to be the State of New York, and the bank’s jurisdiction of the Accounts Bank, for purposes of this Accounts Agreement and Section 9-304(b)(1) of the UCC, is and shall continue to be the State of New York; (f) it has established and maintains the Project Accounts as set forth in Section 3.

Representations, Warranties and Covenants of Accounts Bank. The Accounts Bank hereby represents, warrants, covenants and agrees with the Collateral Agent, for the benefit of the Senior Secured Parties, and the Borrower as follows: (a) it is a securities intermediary on the date hereof and shall act as such in maintaining the Project Accounts and all of the Account Collateral (including all securities and other financial assets or security entitlements deposited in or credited to the Project Accounts) from time to time transferred, deposited in or credited to or maintained in the Project Accounts; (b) it is the bank with which each Project Account is maintained and the securities intermediary with respect to the financial assets held in the Project Accounts. In this regard, (i) if the Accounts Bank has knowledge that an issuer of any financial asset is required to make a payment or distribution in respect of such financial asset, the Accounts Bank shall have fulfilled its duty under applicable Law to take action to obtain such payment or distribution if (A) it credits such payment or distribution to the Project Accounts in accordance with this the Pre-Petition Accounts Agreement if such payment or distribution is made or (B) it notifies the Borrower and the Collateral Agent that such payment or distribution has not been made, and (ii) if the Accounts Bank is required by applicable Law or this the Pre-Petition Accounts Agreement to credit to any Project Account any financial asset purported to be transferred or credited to the Accounts Bank pursuant to applicable Law, the Accounts Bank shall have fulfilled its duty to so credit any Project Account if it credits as a security entitlement to the applicable party whatever rights the Accounts Bank purportedly has in the financial asset transferred or credited to the Accounts Bank and the Accounts Bank shall have no duty to ensure that applicable Law has been complied with in respect of the transfer of the financial asset or to create a security interest in or Lien on any financial asset purported to be transferred or credited to the Accounts Bank and subsequently credited to any Project Account; (c) it shall promptly perform all duties imposed upon a securities intermediary and a bank under the UCC, other applicable Law and this Accounts Agreement; (d) the Collateral Agent, for the benefit of the Senior Secured Parties, and no other Person, is the Accounts Bank’s customer with respect to the Project Accounts, and the Borrower has consented to the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, being deemed the customer hereunder; (e) the Securities Intermediary’s jurisdiction, for purposes of this Accounts Agreement and Article 8 of the UCC, is and shall continue to be the State of New York, and the bank’s jurisdiction of the Accounts Bank, for purposes of this Accounts Agreement and Section 9-304(b)(1) of the UCC, is and shall continue to be the State of New York; (f) it has established and maintains the Project Accounts as set forth in the Pre-Petition Accounts Agreement; (g) each Project Account is and will be maintained as a securities account or, as set forth in Section 3.2.03 (

Representations, Warranties and Covenants of Accounts Bank. The Accounts Bank hereby represents, represents and warrants, covenants and agrees with the Lenders, the Agents and the Borrowers (and the other parties hereto agree, to the extent set forth below) as follows: (a) it will act as depositary agent, as "securities intermediary" (within the meaning of Section 8-102(a)(14) of the UCC) with respect to each of the Project Accounts that is a "securities account" (within the meaning of Section 8-501 of the UCC) and the Financial Assets credited to such Project Accounts, and as "bank" (within the meaning of 9-102(a)(8) of the UCC) with respect to each of the Project Accounts as described in Section 8.19 (Project Accounts as Deposit Accounts) and credit balances not constituting Financial Assets credited thereto and to accept all cash, payments, other amounts and Cash Equivalents to be delivered to or held by the Accounts Bank pursuant to the terms of this Agreement. The Borrowers, the Senior Secured Parties and the Accounts Bank agree that, for purposes of Articles 8 and 9 of the UCC, notwithstanding anything to the contrary contained in any other agreement relating to the establishment and operation of the Project Accounts, the jurisdiction of the Accounts Bank (in its capacity as the securities intermediary on and bank) is the date hereof State of New York; (b) the Accounts Bank hereby agrees and confirms that it has established and maintains the Project Accounts as set forth and defined in this Agreement. The Accounts Bank agrees that (i) each such Project Account established by the Accounts Bank is and will be maintained as a "securities account" (within the meaning of Section 8­501 of the UCC); (ii) the Borrowers' Agent is the "entitlement holder" (within the meaning of Section 8­102(a)(7) of the UCC) in respect of the "financial assets" (within the meaning of Section 8­102(a)(9) of the UCC, the "Financial Assets") credited to such Project Accounts that are "securities accounts"; (iii) all Financial Assets in registered form or payable to or to the order of and credited to any such Project Account shall act be registered in the name of, payable to or to the order of, or specially endorsed to, the Accounts Bank or in blank, or credited to another securities account maintained in the name of the Accounts Bank ; and (iv) in no case will any Financial Asset credited to any such Project Account be registered in the name of, payable to or to the order of, or endorsed to, the Borrowers' Agent, Pacific Holding or any other Borrower except to the extent the foregoing have been subsequently endorsed by such Person to the Accounts Bank or in blank. Each item of property (including a security, security entitlement, investment property, instrument or obligation, share, participation, interest or other property whatsoever) credited to any Project Account shall to the fullest extent permitted by law be treated as such in maintaining a Financial Asset. Until the Discharge Date, this Agreement is intended to provide the Collateral Agent with "control" (within the meaning of Section 8­106(d)(2) or Section 9-104(a) (as applicable) of the UCC) of the Project Accounts and all each Borrower's "security entitlements" (within the meaning of Section 8­102(a)(17) of the Account Collateral (including all securities and other financial assets or security entitlements deposited in or UCC) with respect to the Financial Assets credited to the Project Accounts. The Borrowers' Agent hereby irrevocably directs, and the Accounts Bank (in its capacity as securities intermediary) from time hereby agrees, that the Accounts Bank will comply with all instructions and orders (including entitlement orders within the meaning of Section 8-102(a)(8) of the UCC) regarding each Project Account and any Financial Asset therein originated by the Collateral Agent without the further consent of the Borrowers' Agent or any other Person. In the case of a conflict between any instruction or order originated by the Collateral Agent and any instruction or order originated by the Borrowers' Agent or any other Person other than a court of competent jurisdiction, the instruction or order originated by the Collateral Agent shall prevail. The Accounts Bank shall not change the name or account number of any Project Account without the prior written consent of the Collateral Agent and at least five (5) Business Days' prior notice to time transferredthe Borrowers' Agent, deposited in or credited to or maintained in and shall not change the Project Accountsentitlement holder; (bc) it is the bank with which each Project Account is maintained and the shall promptly perform all duties imposed upon a securities intermediary with respect to and a bank under the financial assets held in the Project AccountsUCC and this Agreement. In this regard, (i) if the Accounts Bank has knowledge that an issuer of any financial asset Financial Asset is required to make a payment or distribution in respect of such financial assetFinancial Asset, the Accounts Bank shall have fulfilled its duty under applicable Law to take action to obtain such payment or distribution if (A) it credits such payment or distribution to the Project Accounts in accordance with this Accounts Agreement if such payment or distribution is made or (B) it notifies the Borrower Borrowers' Agent, the Collateral Agent and the Collateral Administrative Agent that such payment or distribution has not been made, and (ii) if the Accounts Bank is required by applicable Law or this Accounts Agreement to credit to any Project Account any financial asset Financial Asset purported to be transferred or credited to the Accounts Bank pursuant to applicable Law, the Accounts Bank shall have fulfilled its duty to so credit any Project Account if it credits as a security entitlement to the applicable party whatever rights the Accounts Bank purportedly has has, in its capacity as Accounts Bank, in the financial asset Financial Asset transferred or credited to the Accounts Bank Bank, in its capacity as Accounts Bank, and the Accounts Bank shall have no duty to ensure that applicable Law has been complied with in respect of the transfer of the financial asset Financial Asset or to create a security interest in or Lien on any financial asset Financial Asset purported to be transferred or credited to the Accounts Bank and subsequently credited to any Project Account; (c) it shall promptly perform all duties imposed upon a securities intermediary and a bank under the UCC, other applicable Law and this Accounts Agreement; (d) the Collateral Agent, for the benefit of the Senior Secured Parties, and no other Person, is all Financial Assets acquired by or delivered to the Accounts Bank’s customer with respect Bank shall be held by the Accounts Bank and credited by book entry to the relevant Project Accounts, and Account or otherwise accepted by the Borrower has consented Accounts Bank for credit to the Collateral Agent, on behalf and for the benefit of the Senior Secured Parties, being deemed the customer hereunderrelevant Project Account; (e) each item of property (including any cash, security, general intangible, document, instrument or obligation, share, participation, interest or other property whatsoever) deposited in or credited to any Project Account shall be treated as a Financial Asset for the Securities Intermediary’s jurisdiction, for purposes of this Accounts Agreement and Article 8 of the UCC, is and shall continue to be the State of New York, and the bank’s jurisdiction of the Accounts Bank, for purposes of this Accounts Agreement and Section 98-304(b)(1102(a)(9)(iii) of the UCC. Notwithstanding any provision herein contained to the contrary, is and shall continue to be the State of New York; (f) it has established and maintains any property contained in the Project Accounts as set forth that is not deemed to be a Financial Asset under applicable Law, to the extent permitted by applicable Law, will be deemed to be deposited in a deposit account and subject to Section 3.8.19 (