Common use of Noteholder Representations Clause in Contracts

Noteholder Representations. The Noteholder hereby represents and warrants to the Company as follows: (a) The Noteholder is the sole beneficial owner of the Notes held by it as indicated on SCHEDULE A hereto and the Noteholder has not sold, assigned, transferred, endorsed, deposited under any agreement, hypothecated, pledged for any bank or brokerage loan or otherwise, or disposed of in any manner any such Note or any interest therein, other than in connection with the cancellation of the Notes as contemplated herein. (b) The Noteholder is acquiring the Conversion Shares solely for its own account for investment purposes only and not with a view to any sale or distribution thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). The Noteholder has no pre-existing agreement, arrangement or understanding, formal or informal, with any person to sell, distribute or transfer all or any part of such Conversion Shares. (c) The Noteholder understands that (i) the Conversion Shares have not been registered under the Securities Act or any state securities law by reason of their issuance in a transaction which is exempt from the registration requirements of the Securities Act and state securities laws, and that such securities must be held indefinitely unless they are subsequently registered under the Securities Act and such laws or a subsequent disposition thereof is exempt from registration under the applicable provisions of the Securities Act and such laws and (ii) the certificates evidencing such securities will contain a legend to the foregoing effect. (d) The Noteholder has sufficient knowledge and expertise in business and financial matters so as to enable it to analyze and evaluate the merits and risks of acquiring the Conversion Shares pursuant to the terms of this Agreement. (e) The Noteholder is an accredited investor within the meaning of Regulation D under the Securities Act. (f) The Noteholder has had an opportunity to discuss the Company’s business, management and financial affairs with directors, officers and management of the Company and has had the opportunity to review the Company’s operations and facilities. The Noteholder has also had the opportunity to ask questions of and receive answers from, the Company and its management regarding the terms and conditions of this investment. (g) The Noteholder has the requisite power and authority to enter into this Agreement and to agree to the conversion of the Notes held by it under this Agreement.

Noteholder Representations. The Each Noteholder hereby represents and warrants to the Company Agent and Borrower as of the date hereof as follows: (a) The Noteholder This Note is being acquired for such Noteholder’s own account, and not for the sole beneficial owner account of the Notes held by it as indicated on SCHEDULE A hereto any other Person other than such Noteholder, and the Noteholder has not sold, assigned, transferred, endorsed, deposited under any agreement, hypothecated, pledged for any bank or brokerage loan or otherwisewith a view to, or disposed of in any manner any such Note or any interest therein, other than for sale in connection with with, any distribution or resale to others within the cancellation meaning of Section 2(11) under the Notes as contemplated hereinAct. (b) The Such Noteholder is acquiring acknowledges that this Note has not been registered under the Conversion Shares solely for its own account for investment purposes only and not with a view to Act nor qualified under any sale applicable state securities or distribution thereof within the meaning of the Securities Act of 1933blue sky laws and, as amended such, may not be offered, sold or otherwise transferred unless they are registered under the Act and applicable state securities or blue sky laws or an applicable exemption from such registration is available (and solely to the “Securities Act”extent permitted hereunder). The Noteholder has no pre-existing agreement, arrangement or understanding, formal or informal, with any person to sell, distribute or transfer all or any part of such Conversion Shares. (c) The Such Noteholder understands has such knowledge and experience in financial and business matters that (i) such Noteholder is capable of evaluating the Conversion Shares have not been registered under merits and risks of investment in the Securities Act Borrower and of making an informed investment decision. Such Noteholder, or any state securities law by reason of their issuance such Noteholder’s professional advisor, has the capacity to protect such Noteholder’s concerns in a transaction which is exempt from connection with the registration requirements of the Securities Act and state securities lawsinvestment in this Note, and that such securities must be held indefinitely unless they are subsequently registered under Noteholder is able to bear the Securities Act and such laws or a subsequent disposition thereof is exempt from registration under economic risk, including the applicable provisions complete loss, of the Securities Act and such laws and (ii) the certificates evidencing such securities will contain a legend to the foregoing effectan investment in this Note. (d) The Noteholder has sufficient knowledge and expertise in business and financial matters so as to enable it to analyze and evaluate the merits and risks of acquiring the Conversion Shares pursuant to the terms of this Agreement. (e) The Such Noteholder is either (i) an accredited investor within the meaning “Accredited Investor” as such term is defined under Rule 501(a) of Regulation D promulgated under the Securities Act. Act or (fii) The Noteholder has had an opportunity to discuss the Company’s business, management and financial affairs with directors, officers and management is capable of making each of the Company representations and has had warranties contained in this Section 10. Such Noteholder agrees to furnish such documents and to comply with such reasonable requests of the opportunity Borrower as may be necessary to review substantiate such Noteholder’s status as a qualifying investor in connection with the Company’s operations and facilities. The Noteholder has also had the opportunity to ask questions of and receive answers from, the Company and its management regarding the terms and conditions issuance of this investmentNote to such Noteholder or the Agent on such Noteholder’s behalf. Such Noteholder represents and warrants that all information contained in such documents and any other written materials concerning the status of such Noteholder will be true, complete and correct in all material respects. (g) The Noteholder has the requisite power and authority to enter into this Agreement and to agree to the conversion of the Notes held by it under this Agreement.

Noteholder Representations. The Each Noteholder hereby represents and warrants to the Company Company, severally and not jointly, as follows: (a) The Noteholder is the sole beneficial owner of the Notes held by it as indicated on SCHEDULE A hereto and the Noteholder has not sold, assigned, transferred, endorsed, deposited under any agreement, hypothecated, pledged for any bank or brokerage loan or otherwise, or disposed of in any manner any such Note or any interest therein, other than in connection with the cancellation of the Notes as contemplated herein. (b) The Noteholder is acquiring the Revolver Conversion Shares Shares, the Survivor’s Trust Bridge Conversion Shares, and the Marital Trust Bridge Conversion Shares, as applicable, solely for its own account for investment purposes only and not with a view to any sale or distribution thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”). The Noteholder has no pre-existing agreement, arrangement or understanding, formal or informal, with any person to sell, distribute or transfer all or any part of such Revolver Conversion Shares, Survivor’s Trust Bridge Conversion Shares, or Marital Trust Bridge Conversion Shares, as applicable. (c) The Noteholder understands that (i) the Revolver Conversion Shares Shares, the Survivor’s Trust Bridge Conversion Shares, and the Marital Trust Bridge Conversion Shares, as applicable, have not been registered under the Securities Act or any state securities law by reason of their issuance in a transaction which is exempt from the registration requirements of the Securities Act and state securities laws, and that such securities must be held indefinitely unless they are subsequently registered under the Securities Act and such laws or a subsequent disposition thereof is exempt from registration under the applicable provisions of the Securities Act and such laws and (ii) the certificates evidencing such securities will contain a legend to the foregoing effect. (d) The Noteholder has sufficient knowledge and expertise in business and financial matters so as to enable it to analyze and evaluate the merits and risks of acquiring the Revolver Conversion Shares Shares, the Survivor’s Trust Bridge Conversion Shares, and the Marital Trust Bridge Conversion Shares, as applicable, pursuant to the terms of this Agreement. (e) The Noteholder is an accredited investor within the meaning of Regulation D under the Securities Act. (f) The Noteholder has had an opportunity to discuss the Company’s business, management and financial affairs with directors, officers and management of the Company and has had the opportunity to review the Company’s operations and facilities. The Noteholder has also had the opportunity to ask questions of and receive answers from, the Company and its management regarding the terms and conditions of this investment. (g) The Noteholder has the requisite power and authority to enter into this Agreement and to agree to the conversion of the Notes held by it under this Agreement.

Noteholder Representations. The Noteholder hereby represents and warrants Company is issuing the Conversion Shares to the Company as followsNoteholder in reliance upon the following representations made by the Noteholder: (a) The Noteholder is an “accredited investor” within the sole beneficial owner of meanings set forth in Regulation D promulgated under the Notes held by it as indicated on SCHEDULE A hereto and the Noteholder has not sold, assigned, transferred, endorsed, deposited under any agreement, hypothecated, pledged for any bank or brokerage loan or otherwise, or disposed of in any manner any such Note or any interest therein, other than in connection with the cancellation of the Notes as contemplated hereinAct. (b) The Noteholder (i) has had, and continues to have, access to detailed information with respect to the business, financial condition, results of operations and prospects of the Company and SplashPM; (ii) has received or has been provided access to all material information concerning an investment in the Company and SplashPM; and (iii) has been given the opportunity to obtain any additional information or documents from, and to ask questions and receive answers of, the officers, directors and representatives of the Company and SplashPM to the extent necessary to evaluate the merits and risks related to an investment in the Company and SplashPM represented by Common Stock. (c) As a result of the foregoing and Noteholder’s prior overall experience in financial matters, and Noteholder’s familiarity with the nature of the Company’s businesses and SplashPM, Noteholder is acquiring able to evaluate the Conversion Shares solely for its own account for investment purposes only and not with a view to any sale or distribution thereof within the meaning capital structure of the Securities Act Company and SplashPM, the business of 1933the Company and SplashPM, as amended and the risks inherent therein. (d) Noteholder’s investment in the “Securities Act”). The Noteholder has no pre-existing agreementCompany is consistent, arrangement or understanding, formal or informalin both nature and amount, with any person Noteholder’s overall investment program and financial condition. (e) Noteholder’s financial condition is such that Noteholder can afford to sellbear the economic risk of holding the Common Stock, distribute or transfer all or any part and to suffer a complete loss of such Noteholder’s investment in the Company represented by the Note and the Conversion Shares. (cf) The Noteholder understands that (i) Noteholder’s address is set forth on the Conversion Shares have not been registered under the Securities Act or any state securities law by reason of their issuance in a transaction which is exempt from the registration requirements of the Securities Act and state securities laws, and that such securities must be held indefinitely unless they are subsequently registered under the Securities Act and such laws or a subsequent disposition thereof is exempt from registration under the applicable provisions of the Securities Act and such laws and (ii) the certificates evidencing such securities will contain a legend to the foregoing effectsignature page hereto. (dh) The Noteholder has sufficient knowledge In consideration of the promises recited in this Agreement, and expertise in business and financial matters so as to enable it to analyze and evaluate the merits and risks of acquiring the Conversion Shares pursuant other than with respect to the terms obligations contained in this Agreement, each Noteholder including its successors, agents and assigns hereby does, knowingly and voluntarily, release, acquit and forever discharge the Company and the Company’s successors, assigns, officers, directors, shareholders, attorneys, agents, employees and representatives (collectively the “Releasees”), from any and all claims, suits, demands, causes of action, debts, damages, costs, losses, obligations, judgments, charges, expenses, dues, sums of money, accounts and controversies of whatever kind or nature, direct or indirect, arising in tort or contract, whether known or unknown, contingent or noncontingent, at law or in equity relating to any matters of any kind, whether presently known or unknown, suspected or unsuspected that the Noteholder may possess against any of the Releasees arising from any omissions, acts, facts or damages that have occurred up until and including the effective date of this Agreement and as of the date of the consummation of the Merger. (l) Each party to this Agreement has read and understands the following language of Section 1542 of the California Civil Code which provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR It is expressly understood and agreed that all rights under Section 1542 of the Civil Code of the State of California are expressly waived by each of the parties to this Agreement, to the full extent allowed by law. Each party to this Agreement, agrees that this Agreement shall extend and apply to all unknown, unsuspected and unanticipated claims, demands, injuries, or damages within the scope of this Agreement and the releases herein. Each party to this Agreement acknowledge that they are aware that statutes exist which render null and void releases and discharges of any claims, rights, demands, liabilities, actions and causes of action which are unknown to the releasing or discharging party at the time of execution of said release and discharge. Each party to this Agreement expressly waives any equivalent provision of any statute of the United States or any other state or jurisdiction with respect to such claims, demands, injuries, or damages within the scope of this Agreement. (em) The Noteholder is an accredited investor within the meaning hereby agrees that any unit purchase agreement, investors’ rights agreement, and right of Regulation D under the Securities Act. (f) The Noteholder has had an opportunity to discuss the Company’s business, management first refusal and financial affairs with directors, officers and management of co-sale agreements between the Company and has had the opportunity to review the Company’s operations Noteholders shall be null and facilities. The Noteholder has also had the opportunity to ask questions void and of no force and receive answers from, the Company and its management regarding the terms and conditions of this investment. (g) The Noteholder has the requisite power and authority to enter into this Agreement and to agree to the conversion effect as of the Notes held by it under this Agreementdate of the Merger.

Noteholder Representations. The Noteholder hereby represents and warrants Company is issuing the Conversion Shares to the Company as followsNoteholder in reliance upon the following representations made by the Noteholder: (a) The Noteholder is an “accredited investor” within the sole beneficial owner meanings set forth in Regulation D under the Act, for the reason(s) specified on the Investor Certification attached hereto as completed by Noteholder, and Noteholder shall submit to the Company such further assurances of such status as may be reasonably requested by the Notes held by it as indicated on SCHEDULE A hereto and the Noteholder has not sold, assigned, transferred, endorsed, deposited under any agreement, hypothecated, pledged for any bank or brokerage loan or otherwise, or disposed of in any manner any such Note or any interest therein, other than in connection with the cancellation of the Notes as contemplated herein. (b) The Company. Noteholder is acquiring the Conversion Shares solely for investment for its own account for investment purposes only and not with a the view to to, or for resale in connection with, any sale or distribution thereof within the meaning of the Securities Act of 1933, as amended (the “Securities Act”)thereof. The Noteholder has no pre-existing agreement, arrangement or understanding, formal or informal, with any person to sell, distribute or transfer all or any part of such Conversion Shares. (c) The Noteholder understands and acknowledges that (i) the Conversion Shares have not been registered under the Securities Act or any state securities law laws, by reason of their issuance in a transaction which is exempt specific exemption from the registration requirements of the Securities Act and state securities laws, and that such securities must be held indefinitely unless they are subsequently registered under the Securities Act and such laws or a subsequent disposition thereof is exempt from registration under the applicable provisions of the Securities Act and such laws applicable state securities laws, which depends upon, among other things, the bona fide nature of the investment intent and other representations of Noteholder as expressed herein. Noteholder further represents that it does not have any contract, undertaking, agreement or arrangement with any person to sell, transfer or grant participation to any third person with respect to any of the Shares. (b) Noteholder (i) has had, and continues to have, access to detailed information with respect to the business, financial condition, results of operations and prospects of the Company; (ii) has received or has been provided access to all material information concerning an investment in the certificates evidencing such securities will contain a legend Company; and (iii) has been given the opportunity to obtain any additional information or documents from, and to ask questions and receive answers of, the officers, directors and representatives of the Company to the foregoing effectextent necessary to evaluate the merits and risks related to an investment in the Company represented by the Conversion Shares. (c) As a result of Noteholder’s study of the aforementioned information and Noteholder’s prior overall experience in financial matters, and Noteholder’s familiarity with the nature of businesses such as the Company, Noteholder is properly able to evaluate the capital structure of the Company, the business of the Company, and the risks inherent therein. (d) The Noteholder has sufficient knowledge Noteholder’s investment in the Company pursuant to this Agreement is consistent, in both nature and expertise in business amount, with Holder’s overall investment program and financial matters so as to enable it to analyze and evaluate the merits and risks of acquiring the Conversion Shares pursuant to the terms of this Agreementcondition. (e) The Noteholder’s financial condition is such that Noteholder is an accredited investor within can afford to bear the meaning economic risk of Regulation D under holding the Securities ActConversion Shares, and to suffer a complete loss of Noteholder’s investment in the Company represented by the Conversion Shares. (f) The Noteholder has had an opportunity to discuss Noteholder’s principal residence is as set forth on the Company’s business, management and financial affairs with directors, officers and management of the Company and has had the opportunity to review the Company’s operations and facilities. The Noteholder has also had the opportunity to ask questions of and receive answers from, the Company and its management regarding the terms and conditions of this investmentsignature page hereto. (g) The Noteholder has understands that no public market now exists, and there may never be a public market for, the requisite power Company’s Common Stock, including the Conversion Shares. (h) All action on the part of Noteholder, and authority to enter into its officers, directors and partners, if applicable, necessary for the authorization, execution and delivery of this Agreement and the performance of all obligations of Noteholder hereunder and thereunder has been taken, and this Agreement, assuming due execution by the parties hereto, constitutes valid and legally binding obligations of Noteholder, enforceable in accordance with its terms, subject to: (i) judicial principles limiting the availability of specific performance, injunctive relief, and other equitable remedies and (ii) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect generally relating to agree or affecting creditors’ rights. (i) Noteholder represents that neither it nor, to its knowledge, any person or entity controlling, controlled by or under common control with it, nor any person having a beneficial interest in it, nor any person on whose behalf Noteholder is acting: (i) is a person listed in the Annex to Executive Order No. 13224 (2001) issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism); (ii) is named on the List of Specially Designated Nationals and Blocked Persons maintained by the U.S. Office of Foreign Assets Control; (iii) is a non-U.S. shell bank or is providing banking services indirectly to a non-U.S. shell bank; (iv) is a senior non-U.S. political figure or an immediate family member or close associate of such figure; or (v) is otherwise prohibited from investing in the Company pursuant to applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules or orders (categories (i) through (v), each a “Prohibited Noteholder”). Noteholder agrees to provide the Company, promptly upon request, all information that the Company reasonably deems necessary or appropriate to comply with applicable U.S. anti-money laundering, anti-terrorist and asset control laws, regulations, rules and orders. Noteholder consents to the conversion disclosure to U.S. regulators and law enforcement authorities by the Company and its affiliates and agents of such information about Noteholder as the Company reasonably deems necessary or appropriate to comply with applicable U.S. antimony laundering, anti-terrorist and asset control laws, regulations, rules and orders. If Noteholder is a financial institution that is subject to the USA Patriot Act, Noteholder represents that it has met all of its obligations under the USA Patriot Act. Noteholder acknowledges that if, following its investment in the Company, the Company reasonably believes that Noteholder is a Prohibited Noteholder or is otherwise engaged in suspicious activity or refuses to promptly provide information that the Company requests, the Company has the right or may be obligated to prohibit additional investments, segregate the assets constituting the investment in accordance with applicable regulations or immediately require Noteholder to transfer the Shares. Noteholder further acknowledges that Noteholder will have no claim against the Company or any of its affiliates or agents for any form of damages as a result of any of the Notes held foregoing actions. (j) If Noteholder is affiliated with a non-U.S. banking institution (a “Foreign Bank”), or if Noteholder receives deposits from, makes payments on behalf of, or handles other financial transactions related to a Foreign Bank, Noteholder represents and warrants to the Company that: (1) the Foreign Bank has a fixed address, other than solely an electronic address, in a country in which the Foreign Bank is authorized to conduct banking activities; (2) the Foreign Bank maintains operating records related to its banking activities; (3) the Foreign Bank is subject to inspection by it under this Agreementthe banking authority that licensed the Foreign Bank to conduct banking activities; and (4) the Foreign Bank does not provide banking services to any other Foreign Bank that does not have a physical presence in any country and that is not a regulated affiliate. (k) Noteholder realizes that because of the inherently speculative nature of businesses of the kind conducted and contemplated by the Company, the Company’s financial results may be expected to fluctuate from month to month and from period to period and will, generally, involve a high degree of financial and market risk that could result in substantial or, at times, even total losses for investors in securities of the Company. (o) (For ERISA plans only) The fiduciary of the ERISA plan (the “Plan”) represents that such fiduciary has been informed of and understands the Company’s investment objectives, policies and strategies, and that the decision to invest “plan assets” (as such term is defined in ERISA) in the Company is consistent with the provisions of ERISA that require diversification of plan assets and impose other fiduciary responsibilities. Noteholder fiduciary or Plan (a) is responsible for the decision to invest in the Company; (b) is independent of the Company or any of its affiliates; (c) is qualified to make such investment decision; and (d) in making such decision, the Purchaser fiduciary or Plan has not relied primarily on any advice or recommendation of the Company or any of its affiliates.