Common use of Representations and Warranties; Acknowledgments Clause in Contracts

Representations and Warranties; Acknowledgments. In order to induce the Agent and the Lenders to enter into this Amendment, each Loan Party hereby (a) represents and warrants to the Agent and the Lenders that (i) it has duly authorized, executed and delivered this Amendment, (ii) no consent, approval, exemption, order or authorization of, or a registration or filing with, any Governmental Authority, regulatory body or any other third party is required for the due execution, delivery and performance of this Amendment by such Loan Party, other than such consents, approvals, exemptions, orders or authorizations that have already been obtained, (iii) the representations and warranties of such Loan Party set forth in the Credit Agreement and the other Financing Documents are true and correct in all material respects (unless stated to relate solely to an earlier date, in which case the representations and warranties are true and correct as of such earlier date) and (iv) no Default or Matured Default has occurred and is continuing or exists, (b) acknowledges and agrees that, except as expressly provided herein, the Credit Agreement and each of the other Financing Documents are hereby ratified and confirmed in all respects and shall remain in full force and effect; (c) ratifies and reaffirms its obligations under, and acknowledges, renews and extends its continued liability under, the Credit Agreement and each other Financing Document to which it is a party; and (d) ratifies and reaffirms all of the Liens securing the payment and performance of the Secured Liabilities (as defined in the Security Agreement).

Representations and Warranties; Acknowledgments. In order to induce the Agent and the Lenders to enter into this Waiver and Amendment, each Loan Party hereby (a) represents and warrants to the Agent and the Lenders that (i) it has duly authorized, executed and delivered this Waiver and Amendment, (ii) no consent, approval, exemption, order or authorization of, or a registration or filing with, any Governmental Authority, regulatory body or any other third party is required for the due execution, delivery and performance of this Waiver and Amendment by such Loan Party, other than such consents, approvals, exemptions, orders or authorizations that have already been obtained, (iii) the representations and warranties of such Loan Party set forth in the Credit Agreement and the other Financing Documents are true and correct in all material respects (unless stated to relate solely to an earlier date, in which case the representations and warranties are true and correct as of such earlier date) and (iv) no Default or Matured Default (other than the Subject Default) has occurred and is continuing or exists, (b) acknowledges and agrees that, except as expressly provided herein, the Credit Agreement and each of the other Financing Documents are hereby ratified and confirmed in all respects and shall remain in full force and effect; (c) ratifies and reaffirms its obligations under, and acknowledges, renews and extends its continued liability under, the Credit Agreement and each other Financing Document to which it is a party; and (d) ratifies and reaffirms all of the Liens securing the payment and performance of the Secured Liabilities (as defined in the Security Agreement).;

Representations and Warranties; Acknowledgments. 2.1 In order to induce the Agent and the Lenders Lender to enter into this Amendmentmake the amendments provided for in Article 1, each Loan Party the Company hereby (a) represents and warrants to the Agent and the Lenders Lender as of the Effective Date that: (a) the recitals set forth above are true, complete, accurate, and correct in all material respects (unless qualified by materiality, in which case they shall be true and correct in all respects) and are part of this Agreement, and such recitals are incorporated herein by this reference; (b) all representations and warranties made and given by the Loan Parties in the Loan Documents are true, complete, accurate, and correct in all material respects (unless qualified by materiality, in which case they shall be true and correct in all respects), as if given on the Effective Date (or, as to representations and warranties that specifically refer to an earlier date, as of such earlier date) after giving effect to this Agreement; (c) the Loan Parties have no claims, offsets, rights of recoupment, counterclaims, or defenses (other than payment) with respect to: (a) the payment of any amount due under the Loans and the Loan Documents; (b) the performance of the Loan Parties’ obligations under the Loan Documents; or (c) the liability of the Loan Parties under the Loan Documents; (d) the Agent and the Lending Parties: (i) it has duly authorized, executed have not breached any duty to the Loan Parties in connection with the Loans or the Loan Documents; and delivered this Amendment, (ii) no consent, approval, exemption, order have fully performed all obligations they may have had or authorization ofnow have to the Loan Parties; (e) the Loan Parties have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of this Agreement. Before execution of this Agreement, the Loan Parties have had adequate opportunity to make whatever investigation or inquiry it may deem necessary or desirable in connection with the subject matter of this Agreement; (f) the Loan Parties are not acting in reliance on any representation, understanding, or agreement from or with the Agent or the Lending Parties not expressly set forth herein. The Loan Parties acknowledge that none of the Agent or the Lending Parties has made any representation with respect to the subject of this Agreement except as expressly set forth herein. The Company has executed this Agreement as its free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any Person; (g) all interest or other fees or charges which have been imposed, accrued or collected by Agent under the Loan Documents or in connection with the Loans through the date of this Agreement, and the method of computing the same, were and are proper and agreed to by the Loan Parties, and were properly computed and collected; (h) this Agreement is not intended by the parties to be a registration novation of the Loan Documents and, except as expressly waived, deferred, or filing withotherwise modified herein, any Governmental Authorityall terms, regulatory body conditions, rights, and obligations as set out in the Loan Documents are hereby reaffirmed and shall otherwise remain in full force and effect as originally written and agreed; (i) notwithstanding anything to the contrary in this Agreement, except as waived, deferred, or modified herein, the Loan Documents are in full force and effect in accordance with their respective terms, remain legal, valid and binding obligations of the Loan Parties that are enforceable in accordance with their respective terms, have not been modified or amended (except in written amendments executed by the parties), and are hereby reaffirmed and ratified by the Loan Parties; (j) all information provided by the Loan Parties (or any other third party of its agents or representatives) to the Agent or the Lending Parties prior to the Effective Date is required for true, correct and complete in all material respects as of the due execution, delivery date provided and performance does not contain any untrue statements of this Amendment fact or omit to state a fact necessary to make the statements made not misleading in any material respect; (k) all financial statements delivered by such the Loan Party, other than such consents, approvals, exemptions, orders Parties (or authorizations that have already been obtained, (iiiany of its agents or representatives) to the representations and warranties of such Loan Party set forth in Agent or the Credit Agreement and Lending Parties prior to the other Financing Documents Effective Date are true and correct in all material respects and fairly present the financial condition of the Loan Parties; (unless stated to relate solely to an earlier date, in which case the representations and warranties are true and correct l) as of such earlier datethe Effective Date, the Company has delivered to the Agent all statements, notices, certificates, projections, updates, and other information required under Article 6 of the Credit Agreement; (m) the execution and delivery of this Agreement and the performance by the Company of its obligations hereunder are within the corporate or company powers and authority of the Company, have been duly authorized by all necessary corporate action, and do not and will not contravene or conflict with the charter or by-laws of the Company; (ivn) this Agreement has been duly executed and delivered by the Company and constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, covenants, and conditions; (o) after giving effect to this Agreement, no Default or Matured Event of Default (other than related to any Excluded Event) has occurred and is continuing or existscontinuing; and (p) the Company received and acknowledges the letter from counsel to the Agent, dated March 17, 2020, regarding the Agent’s reservation of rights as to the proposed sale of Pacific Aurora, LLC. 2.2 In order to induce the Agent and Lender to make the amendments provided for in Article 1, the Company hereby represents and warrants to the Agent and the Lending Parties that (a) as of the Effective Date, the Accounts Receivable Amount is not greater than $18,000,000, and (b) at no time shall the Company permit the Accounts Receivable Amount to exceed $18,000,000. 2.3 In order to induce the Agent and Lender to make the amendments provided for in Article 1, the Company hereby ratifies and confirms all of the terms, covenants and conditions set forth in the Loan Documents as modified herein and hereby agrees, acknowledges and reaffirms that (a) the Loan Documents, as modified herein, constitute legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, covenants, and conditions, (b) acknowledges the Company remains unconditionally liable to the Agent and agrees thatthe Lending Parties in accordance with the respective terms, except covenants, and conditions set forth in the Loan Documents, as expressly provided modified herein, (c) the Credit Agreement Agent and each of Lender have valid, duly perfected, fully enforceable Liens on the other Financing Documents are hereby ratified Collateral, (d) all Liens heretofore granted to the Agent and confirmed Lender in all respects and shall remain the Collateral continue in full force and effect; effect and secure the Obligations, (ce) ratifies the Company shall execute and reaffirms its obligations underdeliver to the Agent and the Lending Parties any and all agreements and other documentation and to take any and all actions reasonably requested by the Agent and the Lending Parties at any time to assure the perfection, protection, priority, and acknowledgesenforcement of the Agent’s and the Lender’s rights under the Loan Documents (including this Agreement) with respect to all such Liens (but without any increase to the obligations or liabilities of the Company under the Loan Documents), renews and extends its continued liability under(f) as of the Effective Date, the Credit Agreement amount of the Obligations owing under the Loan Documents (exclusive of attorneys’ fees and each other Financing Document to which it is a party; fees, expenses, advances, and costs) totaled $72,292,874.70, consisting of (i) unpaid principal of $39,500,000.00 and accrued, unpaid interest of $441,763.61 on the Term Loan, and (dii) ratifies unpaid principal of $32,000,000.00 and reaffirms all accrued, unpaid interest of $351,111.12 on the Liens securing the payment Revolving Term Loan together with (iii) third party costs and performance of the Secured Liabilities (as defined in the Security Agreement)expenses, including attorney and advisor fees and costs.

Representations and Warranties; Acknowledgments. 2.1 In order to induce the Agent and the Lenders Lender to enter into this Amendmentmake the amendments provided for in Article 1, each Loan Party the Company hereby (a) represents and warrants to the Agent and the Lenders Lender as of the Effective Date that: (a) the recitals set forth above are true, complete, accurate, and correct in all material respects (unless qualified by materiality, in which case they shall be true and correct in all respects) and are part of this Agreement, and such recitals are incorporated herein by this reference; (b) all representations and warranties made and given by the Loan Parties in the Loan Documents are true, complete, accurate, and correct in all material respects (unless qualified by materiality, in which case they shall be true and correct in all respects), as if given on the Effective Date (or, as to representations and warranties that specifically refer to an earlier date, as of such earlier date) after giving effect to this Agreement; (c) the Loan Parties have no claims, offsets, rights of recoupment, counterclaims, or defenses (other than payment) with respect to: (a) the payment of any amount due under the Loans and the Loan Documents; (b) the performance of the Loan Parties’ obligations under the Loan Documents; or (c) the liability of the Loan Parties under the Loan Documents; (d) the Agent and the Lending Parties: (i) it has duly authorized, executed have not breached any duty to the Loan Parties in connection with the Loans or the Loan Documents; and delivered this Amendment, (ii) no consent, approval, exemption, order have fully performed all obligations they may have had or authorization ofnow have to the Loan Parties; (e) the Loan Parties have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of this Agreement. Before execution of this Agreement, the Loan Parties have had adequate opportunity to make whatever investigation or inquiry it may deem necessary or desirable in connection with the subject matter of this Agreement; (f) the Loan Parties are not acting in reliance on any representation, understanding, or agreement from or with the Agent or the Lending Parties not expressly set forth herein. The Loan Parties acknowledge that none of the Agent or the Lending Parties has made any representation with respect to the subject of this Agreement except as expressly set forth herein. The Company has executed this Agreement as its free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any Person; (g) all interest or other fees or charges which have been imposed, accrued or collected by Agent under the Loan Documents or in connection with the Loans through the date of this Agreement, and the method of computing the same, were and are proper and agreed to by the Loan Parties, and were properly computed and collected; (h) this Agreement is not intended by the parties to be a registration novation of the Loan Documents and, except as expressly waived, deferred, or filing withotherwise modified herein, any Governmental Authorityall terms, regulatory body conditions, rights, and obligations as set out in the Loan Documents are hereby reaffirmed and shall otherwise remain in full force and effect as originally written and agreed; (i) notwithstanding anything to the contrary in this Agreement, except as waived, deferred, or modified herein, the Loan Documents are in full force and effect in accordance with their respective terms, remain legal, valid and binding obligations of the Loan Parties that are enforceable in accordance with their respective terms, have not been modified or amended (except in written amendments executed by the parties), and are hereby reaffirmed and ratified by the Loan Parties; (j) all information provided by the Loan Parties (or any other third party of its agents or representatives) to the Agent or the Lending Parties prior to the Effective Date is required for true, correct and complete in all material respects as of the due execution, delivery date provided and performance does not contain any untrue statements of this Amendment fact or omit to state a fact necessary to make the statements made not misleading in any material respect; (k) all financial statements delivered by such the Loan Party, other than such consents, approvals, exemptions, orders Parties (or authorizations that have already been obtained, (iiiany of its agents or representatives) to the representations and warranties of such Loan Party set forth in Agent or the Credit Agreement and Lending Parties prior to the other Financing Documents Effective Date are true and correct in all material respects and fairly present the financial condition of the Loan Parties; (unless stated to relate solely to an earlier date, in which case the representations and warranties are true and correct l) as of such earlier datethe Effective Date, the Company has delivered to the Agent all statements, notices, certificates, projections, updates, and other information required under Article 6 of the Credit Agreement; (m) the execution and delivery of this Agreement and the performance by the Company of its obligations hereunder are within the corporate or company powers and authority of the Company, have been duly authorized by all necessary corporate action, and do not and will not contravene or conflict with the charter or by-laws of the Company; (ivn) this Agreement has been duly executed and delivered by the Company and constitutes the legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, covenants, and conditions; (o) after giving effect to this Agreement, no Default or Matured Event of Default (other than related to any Excluded Event) has occurred and is continuing or existscontinuing; and (p) the Company received and acknowledges the letter from counsel to the Agent, dated March 17, 2020, regarding the Agent’s reservation of rights as to the proposed sale of Pacific Aurora, LLC. 2.2 In order to induce the Agent and Lender to make the amendments provided for in Article 1, the Company hereby represents and warrants to the Agent and the Lending Parties that (a) as of the Effective Date, the Accounts Receivable Amount is not greater than $18,000,000, and (b) at no time shall the Company permit the Accounts Receivable Amount to exceed $18,000,000. 2.3 In order to induce the Agent and Lender to make the amendments provided for in Article 1, the Company hereby ratifies and confirms all of the terms, covenants and conditions set forth in the Loan Documents as modified herein and hereby agrees, acknowledges and reaffirms that (a) the Loan Documents, as modified herein, constitute legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, covenants, and conditions, (b) acknowledges the Company remains unconditionally liable to the Agent and agrees thatthe Lending Parties in accordance with the respective terms, except covenants, and conditions set forth in the Loan Documents, as expressly provided modified herein, (c) the Credit Agreement Agent and each of Lender have valid, duly perfected, fully enforceable Liens on the other Financing Documents are hereby ratified Collateral, (d) all Liens heretofore granted to the Agent and confirmed Lender in all respects and shall remain the Collateral continue in full force and effect; effect and secure the Obligations, (ce) ratifies the Company shall execute and reaffirms its obligations underdeliver to the Agent and the Lending Parties any and all agreements and other documentation and to take any and all actions reasonably requested by the Agent and the Lending Parties at any time to assure the perfection, protection, priority, and acknowledgesenforcement of the Agent’s and the Lender’s rights under the Loan Documents (including this Agreement) with respect to all such Liens (but without any increase to the obligations or liabilities of the Company under the Loan Documents), renews and extends its continued liability under(f) as of the Effective Date, the Credit Agreement amount of the Obligations owing under the Loan Documents (exclusive of attorneys’ fees and each other Financing Document to which it is a party; fees, expenses, advances, and costs) totaled $30,255,516.70, consisting of (i) unpaid principal of $12,000,000.00 and accrued, unpaid interest of $102,206.66 on the Term Loan, and (dii) ratifies unpaid principal of $18,000,000.00 and reaffirms all accrued, unpaid interest of $153,310.00 on the Liens securing the payment Revolving Term Loan together with (iii) third party costs and performance of the Secured Liabilities (as defined in the Security Agreement)expenses, including attorney and advisor fees and costs.

Representations and Warranties; Acknowledgments. 3.1 In order to induce the Agent and Lender make the Lenders to enter into this Amendmentamendments provided for in Article 1, each Loan Party the Company hereby (a) represents and warrants to the Agent and the Lenders Lender as of the Effective Date that: (a) The recitals set forth above are true, complete, accurate, and correct in all material respects (unless qualified by materiality, in which case they shall be true and correct in all respects) and are part of this Agreement, and such recitals are incorporated herein by this reference; (b) All representations and warranties made and given by the Loan Parties in the Loan Documents are true, complete, accurate, and correct in all material respects (unless qualified by materiality, in which case they shall be true and correct in all respects), as if given on the Effective Date (or, as to representations and warranties that specifically refer to an earlier date, as of such earlier date) after giving effect to this Agreement; (c) The Loan Parties have no claims, offsets, rights of recoupment, counterclaims, or defenses (other than payment) with respect to: (a) the payment of any amount due under the Loans and the Loan Documents; (b) the performance of the Loan Parties’ obligations under the Loan Documents; or (c) the liability of the Loan Parties under the Loan Documents; (d) Agent and the Lending Parties: (i) it has duly authorized, executed have not breached any duty to the Loan Parties in connection with the Loans or the Loan Documents; and delivered this Amendment, (ii) no consent, approval, exemption, order have fully performed all obligations they may have had or authorization ofnow have to the Loan Parties; (e) The Loan Parties have had the assistance of independent counsel of their own choice, or have had the opportunity to retain such independent counsel, in reviewing, discussing, and considering all the terms of this Agreement. Before execution of this Agreement, the Loan Parties have had adequate opportunity to make whatever investigation or inquiry it may deem necessary or desirable in connection with the subject matter of this Agreement; (f) The Loan Parties are not acting in reliance on any representation, understanding, or agreement from or with Agent or the Lending Parties not expressly set forth herein. The Loan Parties acknowledge that none of Agent or the Lending Parties has made any representation with respect to the subject of this Agreement except as expressly set forth herein. The Company has executed this Agreement as its free and voluntary act, without any duress, coercion, or undue influence exerted by or on behalf of any Person; (g) All interest or other fees or charges which have been imposed, accrued or collected by Agent under the Loan Documents or in connection with the Loans through the date of this Agreement, and the method of computing the same, were and are proper and agreed to by the Loan Parties, and were properly computed and collected; (h) This Agreement is not intended by the parties to be a registration novation of the Loan Documents and, except as expressly waived, deferred or filing withotherwise modified herein, any Governmental Authorityall terms, regulatory body conditions, rights, and obligations as set out in the Loan Documents are hereby reaffirmed and shall otherwise remain in full force and effect as originally written and agreed; (i) Notwithstanding anything to the contrary in this Agreement, except as waived, deferred or modified herein, the Loan Documents are in full force and effect in accordance with their respective terms, remain legal, valid and binding obligations of the Loan Parties that are enforceable in accordance with their respective terms, have not been modified or amended (except in written amendments executed by the parties), and are hereby reaffirmed and ratified by the Loan Parties; (j) All information provided by the Loan Parties (or any other third party of its agents or representatives) to Agent or the Lending Parties prior to the Effective Date is required for true, correct and complete in all material respects as of the due execution, delivery date provided and performance does not contain any untrue statements of this Amendment fact or omit to state a fact necessary to make the statements made not misleading in any material respect; (k) All financial statements delivered by such the Loan Party, other than such consents, approvals, exemptions, orders Parties (or authorizations that have already been obtained, (iiiany of its agents or representatives) to Agent or the representations and warranties of such Loan Party set forth in Lending Parties prior to the Credit Agreement and the other Financing Documents Effective Date are true and correct in all material respects and fairly present the financial condition of the Loan Parties; (unless stated l) As of the Effective Date, the Company has delivered to relate solely Agent all statements, notices, certificates, projections, updates, and other information required under Article 6 of the Credit Agreement; (m) The execution and delivery of this Agreement and the performance by the Company of its obligations hereunder are within the corporate or company powers and authority of the Company, have been duly authorized by all necessary corporate action, and do not and will not contravene or conflict with the charter or by-laws of the Company; (n) This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, covenants, and conditions; and (o) After giving effect to an earlier datethis Agreement, in which case the representations and warranties are true and correct as of such earlier date) and (iv) no Default or Matured Event of Default (other than related to any Excluded Event) has occurred and is continuing or existscontinuing. 3.2 In order to induce Agent and Lender make the amendments provided for in Article 1, the Company hereby ratifies and confirms all of the terms, covenants and conditions set forth in the Loan Documents as modified herein and hereby agrees, acknowledges and reaffirms that (a) the Loan Documents as modified herein constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, covenants, and conditions, (b) acknowledges the Company remains unconditionally liable to Agent and agrees thatthe Lending Parties in accordance with the respective terms, except covenants, and conditions set forth in the Loan Documents as expressly provided modified herein, (c) Agent and Lender have valid, duly perfected, fully enforceable Liens on the Credit Agreement Collateral, (d) all Liens heretofore granted to Agent and each of Lender in the other Financing Documents are hereby ratified and confirmed in all respects and shall remain Collateral continue in full force and effect; effect and secure the Obligations, (ce) ratifies the Company shall execute and reaffirms its obligations underdeliver to Agent and the Lending Parties any and all agreements and other documentation and to take any and all actions reasonably requested by Agent and the Lending Parties at any time to assure the perfection, protection, priority, and acknowledgesenforcement of Agent’s and Lender’s rights under the Loan Documents (including this Agreement) with respect to all such Liens (but without any increase to the obligations or liabilities of the Company under the Loan Documents), renews and extends its continued liability under(f) as of December 20, 2019, the Credit Agreement amount of the Obligations owing under the Loan Documents (exclusive of attorneys’ fees and each other Financing Document to which it is a party; fees, expenses, advances, and costs) $30,086,575.00, consisting of (i) unpaid principal of $12,000,000.00 and accrued, unpaid interest of $34,630.00 on the Term Loan, and (dii) ratifies unpaid principal of $18,000,000.00 and reaffirms all accrued, unpaid interest of $51,945 00 on the Revolving Term Loan, together with (iii) third party costs and expenses, including attorney and advisor fees and costs. 3.3 The ICP Lenders agree that, upon the payment of the Liens securing Paydown Amount, the payment and performance of ICP Lenders will re-evaluate the Secured Liabilities (as defined existing interest rates set forth in the Security Agreement)Notes and consider in good faith any request by ICP to a reduction thereto.