Common use of REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS Clause in Contracts

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent and the Lenders party hereto to enter into this Agreement, each Loan Party hereby: (a) represents and warrants that (i) as of the date hereof, both immediately before and immediately after giving effect to this Agreement, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to this Agreement and the transactions contemplated hereby, no Event of Default has occurred and is continuing; (iii) such Loan Party has the corporate or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement of creditors’ rights generally and by general equitable principles. (b) acknowledges and agrees that (i) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full herein; (ii) except as expressly set forth herein, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan Documents; (iii) except as expressly set forth herein, this Agreement shall not represent any amendment, waiver, consent or other agreement related to any future action of any Loan Party; (iv) except as expressly set forth herein, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan Documents; (v) no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this Agreement, the Amended Credit Agreement or any other Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any future, amendment, waiver, consent or other agreement and, in the event the Agent or any Lender subsequently agrees to consider any future amendment, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement; (c) further acknowledges and agrees that neither this Agreement nor any document executed in connection herewith shall be deemed to constitute a refinancing, substitution or novation of the Existing Credit Agreement, any other Loan Document, the Obligations or any other obligations and liabilities thereunder; and (d) reaffirms each of its agreements, covenants and undertakings set forth in the Amended Credit Agreement and each other Loan Document to which it is a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment of the Agent as its attorney-in-fact and/or proxy in accordance with the terms of the Security Agreement and any other Loan Document, as applicable, which appointment is irrevocable and coupled with an interest, in each case, as modified by the terms of this Agreement.

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent and the Lenders party hereto to enter into 24.1 By execution of this Agreement, each Loan Party hereby: represents and warrants to the other (a) represents that the representing Party has full right and warrants that (i) as of the date hereof, both immediately before authority to enter into and immediately after giving effect to this Agreement, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to perform this Agreement and the transactions contemplated hereby, no Event of Default has occurred and is continuing; (iii) such Loan Party has the corporate or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement of creditors’ rights generally and by general equitable principles. (b) acknowledges and agrees that (i) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full herein; (ii) except as expressly set forth herein, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan Documents; (iii) except as expressly set forth herein, this Agreement shall not represent any amendment, waiver, consent or other agreement related to any future action of any Loan Party; (iv) except as expressly set forth herein, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan Documents; (v) no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this Agreement, the Amended Credit Agreement or any other Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any future, amendment, waiver, consent or other agreement and, in the event the Agent or any Lender subsequently agrees to consider any future amendment, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement; (c) further acknowledges and agrees that neither this Agreement nor any document executed in connection herewith shall be deemed to constitute a refinancing, substitution or novation of the Existing Credit Agreement, any other Loan Document, the Obligations or any other obligations and liabilities thereunder; and (d) reaffirms each of its agreements, covenants and undertakings set forth in the Amended Credit Agreement and each other Loan Document to which it is a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment of the Agent as its attorney-in-fact and/or proxy in accordance with the terms hereof and thereof, and that by entering into or performing this Agreement, the representing Party is not in violation of its charter or bylaws, or any law, regulation or agreement by which it is bound or to which it is subject; and (b) that the Security execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite corporate action, that the signatories for such Party hereto are authorized to sign this Agreement, and that the joinder or consent of any other Loan DocumentParty, as applicableincluding a court or trustee or referee, which appointment is irrevocable not necessary to make valid and coupled with an interesteffective the execution, in each case, as modified by the terms delivery and performance of this AgreementAgreement by such Party. 24.2 WFI MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DARK FIBERS, THE ASSOCIATED PROPERTY, THE FACILITIES OR ANY WORK PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. THE WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY WFI TO CUSTOMER WITH RESPECT TO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent and the Lenders party hereto to enter into 24.1 By execution of this Agreement, each Loan Party herebyrepresents and warrants to the other: (a) represents That the representing Party has full right and warrants that (i) as of the date hereof, both immediately before authority to enter into and immediately after giving effect to this Agreement, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to perform this Agreement and the transactions contemplated hereby, no Event of Default has occurred and is continuing; (iii) such Loan Party has the corporate or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement of creditors’ rights generally and by general equitable principles. (b) acknowledges and agrees that (i) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full herein; (ii) except as expressly set forth herein, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan Documents; (iii) except as expressly set forth herein, this Agreement shall not represent any amendment, waiver, consent or other agreement related to any future action of any Loan Party; (iv) except as expressly set forth herein, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan Documents; (v) no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this Agreement, the Amended Credit Agreement or any other Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any future, amendment, waiver, consent or other agreement and, in the event the Agent or any Lender subsequently agrees to consider any future amendment, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement; (c) further acknowledges and agrees that neither this Agreement nor any document executed in connection herewith shall be deemed to constitute a refinancing, substitution or novation of the Existing Credit Agreement, any other Loan Document, the Obligations or any other obligations and liabilities thereunder; and (d) reaffirms each of its agreements, covenants and undertakings set forth in the Amended Credit Agreement and each other Loan Document to which it is a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment of the Agent as its attorney-in-fact and/or proxy in accordance with the terms hereof and thereof, and that by entering into or performing this Agreement, the representing Party is not in violation of its charter or bylaws, or any law, regulation or agreement by which it is bound or to which it is subject; (b) That the Security execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite corporate action, that the signatories for such Party hereto are authorized to sign this Agreement, and that the joinder or consent of any other Loan DocumentParty, as applicableincluding a court or trustee or referee, which appointment is irrevocable not necessary to make valid and coupled with an interesteffective the execution, in each case, as modified by the terms delivery and performance of this AgreementAgreement by such Party. 24.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, AGLN MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE USER DARK FIBERS, THE AGLN SYSTEM, THE ASSOCIATED PROPERTY, OR ANY WORK PERFORMED OR TO BE PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. THE WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY AGLN TO USER WITH RESPECT TO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent and the Lenders party hereto to enter into this Agreement, each Each Loan Party herebyhereby represents, warrants and acknowledges as follows: (a) represents and warrants that (i) as of the date hereof, both immediately before and immediately after giving effect to this Agreementthe amendments set forth herein, each of the representations and warranties made by such it as set forth in Article V of the Term Loan Party in or pursuant to the Loan Documents to which it is a party is Agreement are true and correct in all material respects (except respects, it being understood and agreed that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates that, by its terms, is made as of a specified date will be required to an earlier date in which case such representation or warranty shall be true and correct in all material respects only as of such earlier date specified date; (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereofb) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to this Agreement and the transactions contemplated herebyamendments set forth herein, no Event of Default exists or has occurred and is continuing; (iii) such Loan Party that has the corporate not been duly cured or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party waived in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement provisions of creditors’ rights generally and by general equitable principles. (b) acknowledges and agrees that (i) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full herein; (ii) except as expressly set forth herein, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan Documents; (iii) except as expressly set forth herein, this Agreement shall not represent any amendment, waiver, consent or other agreement related to any future action of any Loan Party; (iv) except as expressly set forth herein, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan Documents; (v) no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this Agreement, the Amended Credit Agreement or any other applicable Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any future, amendment, waiver, consent or other agreement and, in the event the Agent or any Lender subsequently agrees to consider any future amendment, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement; (c) this Amendment has been duly authorized by all necessary corporate or limited liability company proceedings of, and duly executed and delivered by, each Loan Party; (d) no further acknowledges consent, approval authorization, order, registration, or qualification with any governmental authority is required for, and agrees the absence of which would not adversely affect, the valid execution and delivery by any Loan Party of this Amendment or the Term Loan Agreement, as amended by this Amendment; (e) the execution, delivery, and performance by the Loan Parties of this Amendment do not and will not (i) contravene the terms of any of its Organization Documents; (ii) conflict with or result in any breach or contravention of, or the creation of any Lien under or require any payment to be made under (A) any Material Contract to which that neither this Person is a party or affecting that Person or the properties of that Person or any of its Subsidiaries, including that certain Amended and Restated Loan and Security Agreement nor dated as of November 5, 2007 between ThermaClime and the other borrowers party thereto and ▇▇▇▇▇ Fargo Capital Finance, Inc., formerly known as ▇▇▇▇▇ Fargo Foothill, Inc., as the arranger and administrative agent for the lenders party thereto, as amended, or (B) any document executed order, injunction, writ, or decree of any Governmental Authority or any arbitral award to which that Person or its property is subject; or (iii) violate any Law; (f) all representations, warranties and covenants set forth in connection herewith shall the El Dorado Mortgage relating to Environmental Laws regarding or Hazardous Materials at the El Dorado Site, including, without limitation, those set forth in Sections 3.07 and 3.08 thereof, remain true and correct and in full force and effect, and the El Dorado Casualty has not resulted in (i) any violation of Environmental Laws or conditions that, with the passage of time, could reasonably be deemed expected to constitute result in a refinancingviolation of Environmental Laws, substitution or novation (ii) any private party complaints, claims or lawsuits regarding potential liability to private parties; (g) all documentation prepared regarding the El Dorado Casualty and Project delivered to Collateral Agent is true, correct and complete in all material respects and, to the knowledge of the Existing Credit AgreementLoan Parties, any does not contain incorrect or misleading statements, facts, data or other Loan Document, the Obligations or any other obligations and liabilities thereunderinformation; and (dh) reaffirms each of its agreements, covenants (i) the K-T Low Density Prilled Ammonium Nitrate Plant and undertakings set forth in Chemical & Industrial Corporation (C&I ▇▇▇▇▇▇▇/Chemico) E2 High Density Prilled Ammonium Nitrate Plant located on the Amended Credit Agreement and each other Loan Document to which it is El Dorado Site were not damaged as a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment result of the Agent as its attorney-in-fact and/or proxy in accordance with El Dorado Casualty; (ii) the terms of Damaged Plants Project (other than the Security Agreement Sulfuric Acid Plant Project) has reached Substantial Completion, (iii) the Sulfuric Acid Plant Project is estimated by EDCC to reach Substantial Completion by November 30, 2012, and any other Loan Document(iv) the Replacement Plant Project is estimated by EDCC to reach Substantial Completion by May 31, as applicable, which appointment is irrevocable and coupled with an interest, in each case, as modified by the terms of this Agreement2015.

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent (a) Lessee acknowledges and the Lenders party hereto to enter into agrees that each item of Equipment listed on any Schedule has been selected by Lessee for inclusion in this Agreement, each Loan Party hereby: (a) represents based solely upon ▇▇▇▇▇▇’s own judgment and warrants that (i) as of the date hereof, both immediately before and immediately after giving effect to this Agreement, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party is true and correct in all material respects (except that such materiality qualifier shall not be applicable to without reliance upon any representations and or warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to this Agreement and the transactions contemplated hereby, no Event of Default has occurred and is continuing; (iii) such Loan Party has the corporate or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement of creditors’ rights generally and by general equitable principles▇▇▇▇▇▇. (b) acknowledges and agrees that LESSEE ACKNOWLEDGES AND AGREES THAT (iI) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full hereinLESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT; (iiII) except as expressly set forth hereinLESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan DocumentsFITNESS OR SUITABILITY OF THE EQUIPMENT FOR THE PARTICULAR PURPOSES OR INTENDED USES OF LESSEE; (iiiIII) except as expressly set forth hereinLESSOR MAKES NO REPRESENTATIONS AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, this Agreement shall not represent any amendmentEXPRESS OR IMPLIED, waiver, consent or other agreement related to any future action of any Loan PartyWITH RESPECT TO THE EQUIPMENT; (ivIV) except as expressly set forth hereinTHE ONLY APPLICABLE WARRANTIES SHALL BE WARRANTIES, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan DocumentsIF ANY, PROVIDED BY THE MANUFACTURER OF THE EQUIPMENT, WHICH WARRANTIES MAY OR MAY NOT BE TRANSFERABLE TO LESSEE; (vV) no right of offsetCERTAIN PIECES OF THE EQUIPMENT MAY BE USED, defenseAND ARE PROVIDED, counterclaimWITHOUT WARRANTY; (VI) LESSOR’S SOLE RESPONSIBILITY WITH REGARD TO ANY CLAIM OF DEFECT OR BREACH OF MANUFACTURERS’ WARRANTY WILL BE TO LEND REASONABLE ASSISTANCE TO LESSEE IN THE PROSECUTION OF A CLAIM AGAINST THE MANUFACTURER; AND (VII) LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY USER OF THE EQUIPMENT FOR ANY CLAIM, recoupmentLOSS OR DAMAGE CAUSED OR ALLEGEDLY CAUSED DIRECTLY, claimINDIRECTLY, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this AgreementINCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, the Amended Credit Agreement or any other Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any futureBY ANY INADEQUACY THEREOF OR DEFECT OR DEFICIENCY THEREIN OR BY ANY INCIDENT WHATSOEVER THEREWITH, amendmentWHETHER ARISING IN TORT, waiverSTRICT LIABILITY, consent or other agreement andNEGLIGENCE, in the event the Agent or any Lender subsequently agrees to consider any future amendmentCONTRACT OR OTHERWISE, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement;OR IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT. (c) further acknowledges Lessor hereby assigns to Lessee any warranties covenants and agrees that neither this Agreement nor representations of the manufacturer or seller of the Equipment, to the extent assignable. Neither Party will take any document executed in connection herewith actions or fail to take any action the effect of which would be to invalidate any such warranty. Any amounts received by Lessee as payments under any warranty or as the result of the prosecution of any claim against any manufacturer shall be deemed applied first to constitute a refinancingthe repair, substitution restoration or novation replacement of the Existing Credit AgreementEquipment, with any other Loan Documentbalance, the Obligations or any other obligations and liabilities thereunder; and (d) reaffirms each less out-of-pocket expenses of its agreementsLessee, covenants and undertakings set forth in the Amended Credit Agreement and each other Loan Document being paid to which it is a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment of the Agent as its attorney-in-fact and/or proxy in accordance with the terms of the Security Agreement and any other Loan Document, as applicable, which appointment is irrevocable and coupled with an interest, in each case, as modified by the terms of this AgreementLessor.

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent and the Lenders party hereto to enter into 22.1 By execution of this Agreement, each Loan Party herebyrepresents and warrants to the other: (a) represents That the representing Party has full right and warrants that (i) as of the date hereof, both immediately before authority to enter into and immediately after giving effect to this Agreement, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to perform this Agreement and the transactions contemplated hereby, no Event of Default has occurred and is continuing; (iii) such Loan Party has the corporate or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement of creditors’ rights generally and by general equitable principles. (b) acknowledges and agrees that (i) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full herein; (ii) except as expressly set forth herein, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan Documents; (iii) except as expressly set forth herein, this Agreement shall not represent any amendment, waiver, consent or other agreement related to any future action of any Loan Party; (iv) except as expressly set forth herein, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan Documents; (v) no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this Agreement, the Amended Credit Agreement or any other Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any future, amendment, waiver, consent or other agreement and, in the event the Agent or any Lender subsequently agrees to consider any future amendment, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement; (c) further acknowledges and agrees that neither this Agreement nor any document executed in connection herewith shall be deemed to constitute a refinancing, substitution or novation of the Existing Credit Agreement, any other Loan Document, the Obligations or any other obligations and liabilities thereunder; and (d) reaffirms each of its agreements, covenants and undertakings set forth in the Amended Credit Agreement and each other Loan Document to which it is a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment of the Agent as its attorney-in-fact and/or proxy in accordance with the terms hereof and thereof, and that by entering into or performing this Agreement, the representing Party is not in violation of its charter or bylaws, or any law, regulation or agreement by which it is bound or to which it is subject; (b) That the Security execution, delivery, and performance of this Agreement by such Party has been duly authorized by all requisite corporate action, that the signatories for such Party hereto are authorized to sign this Agreement, and that the joinder or consent of any other Loan Documentparty, as applicableincluding a court or trustee or referee, which appointment is irrevocable not necessary to make valid and coupled with an interesteffective the execution, in each case, as modified by the terms delivery and performance of this AgreementAgreement by such Party. 22.2 CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS SET FORTH IN THIS AGREEMENT THE CITY MAKES NO WARRANTY, REPRESENTATION OR INDEMNITY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DARK FIBER, THE FIBER SYSTEM, THE ASSOCIATED PROPERTY, ANY CITY FACILITIES OR ANY WORK PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF DESIGN, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE, AND CUSTOMER HEREBY EXPRESSLY WAIVES AND DISCLAIMS ALL SUCH WARRANTIES, REPRESENTATIONS AND INDEMNITIES. THE WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY THE CITY TO CUSTOMER WITH RESPECT TO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS, OR IMPLIED. For the avoidance of doubt, nothing contained in this Section 22.2 shall be in conflict with CITY’S responsibility to maintain the Fiber System as further described in Article10 such that the Dark Fibers are operating in conformity with the applicable specifications as further described in Exhibit B.

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent (a) Lessee acknowledges and the Lenders party hereto to enter into agrees that each item of Equipment listed on any Schedule has been selected by Lessee for inclusion in this Agreement, each Loan Party hereby: (a) represents based solely upon Lessee’s own judgment and warrants that (i) as of the date hereof, both immediately before and immediately after giving effect to this Agreement, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party is true and correct in all material respects (except that such materiality qualifier shall not be applicable to without reliance upon any representations and or warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to this Agreement and the transactions contemplated hereby, no Event of Default has occurred and is continuing; (iii) such Loan Party has the corporate or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement of creditors’ rights generally and by general equitable principlesLessor. (b) acknowledges and agrees that LESSEE ACKNOWLEDGES AND AGREES THAT (iI) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full hereinLESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT; (iiII) except as expressly set forth hereinLESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY AS TO THE MERCHANTABILITY, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan DocumentsFITNESS OR SUITABILITY OF THE EQUIPMENT FOR THE PARTICULAR PURPOSES OR INTENDED USES OF LESSEE; (iiiIII) except as expressly set forth hereinLESSOR MAKES NO REPRESENTATIONS AND SPECIFICALLY DISCLAIMS ALL WARRANTIES, this Agreement shall not represent any amendmentEXPRESS OR IMPLIED, waiver, consent or other agreement related to any future action of any Loan PartyWITH RESPECT TO THE EQUIPMENT; (ivIV) except as expressly set forth hereinTHE ONLY APPLICABLE WARRANTIES SHALL BE WARRANTIES, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan DocumentsIF ANY, PROVIDED BY THE MANUFACTURER OF THE EQUIPMENT, WHICH WARRANTIES MAY OR MAY NOT BE TRANSFERABLE TO LESSEE; (vV) no right of offsetCERTAIN PIECES OF THE EQUIPMENT MAY BE USED, defenseAND ARE PROVIDED, counterclaimWITHOUT WARRANTY; (VI) LESSOR’S SOLE RESPONSIBILITY WITH REGARD TO ANY CLAIM OF DEFECT OR BREACH OF MANUFACTURERS’ WARRANTY WILL BE TO LEND REASONABLE ASSISTANCE TO LESSEE IN THE PROSECUTION OF A CLAIM AGAINST THE MANUFACTURER; AND (VII) LESSOR SHALL HAVE NO LIABILITY TO LESSEE OR ANY USER OF THE EQUIPMENT FOR ANY CLAIM, recoupmentLOSS OR DAMAGE CAUSED OR ALLEGEDLY CAUSED DIRECTLY, claimINDIRECTLY, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this AgreementINCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, the Amended Credit Agreement or any other Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any futureBY ANY INADEQUACY THEREOF OR DEFECT OR DEFICIENCY THEREIN OR BY ANY INCIDENT WHATSOEVER THEREWITH, amendmentWHETHER ARISING IN TORT, waiverSTRICT LIABILITY, consent or other agreement andNEGLIGENCE, in the event the Agent or any Lender subsequently agrees to consider any future amendmentCONTRACT OR OTHERWISE, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement;OR IN ANY WAY RELATED TO OR ARISING FROM THIS AGREEMENT. (c) further acknowledges Lessor hereby assigns to Lessee any warranties covenants and agrees that neither this Agreement nor representations of the manufacturer or seller of the Equipment, to the extent assignable. Neither Party will take any document executed in connection herewith actions or fail to take any action the effect of which would be to invalidate any such warranty. Any amounts received by Lessee as payments under any warranty or as the result of the prosecution of any claim against any manufacturer shall be deemed applied first to constitute a refinancingthe repair, substitution restoration or novation replacement of the Existing Credit AgreementEquipment, with any other Loan Documentbalance, the Obligations or any other obligations and liabilities thereunder; and (d) reaffirms each less out-of-pocket expenses of its agreementsLessee, covenants and undertakings set forth in the Amended Credit Agreement and each other Loan Document being paid to which it is a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment of the Agent as its attorney-in-fact and/or proxy in accordance with the terms of the Security Agreement and any other Loan Document, as applicable, which appointment is irrevocable and coupled with an interest, in each case, as modified by the terms of this AgreementLessor.

REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGMENTS. To induce the Agent and the Lenders party hereto to enter into 24.1 By execution of this Agreement, each Loan Party herebyrepresents and warrants to the other: (a) represents That the representing Party has full right and warrants that (i) as of the date hereof, both immediately before authority to enter into and immediately after giving effect to this Agreement, each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents to which it is a party is true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that are already qualified or modified by materiality or Material Adverse Effect in the text thereof), except to the extent that such representation or warranty expressly relates to an earlier date in which case such representation or warranty shall be true and correct in all material respects as of such earlier date (except that such material qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) and, in each case, except for changes therein expressly permitted or expressly contemplated hereby; (ii) as of the date hereof, both immediately before and immediately after giving effect to perform this Agreement and the transactions contemplated hereby, no Event of Default has occurred and is continuing; (iii) such Loan Party has the corporate or other organizational power and is duly authorized to enter into, deliver and 53/Mammoth – Amendment No. 2 perform its obligations under this Agreement; and (iv) each of this Agreement and the Amended Credit Agreement constitutes a valid and binding agreement or instrument of such Loan Party, enforceable against such Loan Party in accordance with its respective terms, except as the enforceability thereof may be limited by bankruptcy, insolvency or other similar Laws relating to the enforcement of creditors’ rights generally and by general equitable principles. (b) acknowledges and agrees that (i) all of the terms and conditions set forth in the Amended Credit Agreement and each and every other Loan Document executed in connection therewith or pursuant thereto, in each case, as modified by the terms of this Agreement, are incorporated herein by this reference as if set forth in full herein; (ii) except as expressly set forth herein, this Agreement is not intended, and should not be construed, as any kind of amendment, waiver, consent or other agreement related to, the Existing Credit Agreement or the other Loan Documents; (iii) except as expressly set forth herein, this Agreement shall not represent any amendment, waiver, consent or other agreement related to any future action of any Loan Party; (iv) except as expressly set forth herein, the Agent and Lenders reserve all of their respective rights under the Amended Credit Agreement and all other Loan Documents; (v) no right of offset, defense, counterclaim, recoupment, claim, cause of action or objection in favor of any Loan Party against the Agent or any Lender exists as of the date hereof arising out of or with respect to this Agreement, the Amended Credit Agreement or any other Loan Document; and (vi) the amendments and other agreements contained herein do not and shall not create (nor shall any Loan Party rely upon the existence of or claim or assert that there exists) any obligation of the Agent or any Lender to consider or agree to any future, amendment, waiver, consent or other agreement and, in the event the Agent or any Lender subsequently agrees to consider any future amendment, waiver, consent or other agreement, neither the amendment and other agreements contained herein nor any other conduct of the Agent or any Lender shall be of any force or effect on the Agent’s or any Lender’s consideration or decision with respect to any such requested amendment, waiver, consent or agreement, and neither the Agent nor any Lender shall have any obligation whatsoever to consider or agree to any future amendment, waiver, consent or other agreement; (c) further acknowledges and agrees that neither this Agreement nor any document executed in connection herewith shall be deemed to constitute a refinancing, substitution or novation of the Existing Credit Agreement, any other Loan Document, the Obligations or any other obligations and liabilities thereunder; and (d) reaffirms each of its agreements, covenants and undertakings set forth in the Amended Credit Agreement and each other Loan Document to which it is a party executed in connection therewith or pursuant thereto, including the validity and enforceability of any appointment of the Agent as its attorney-in-fact and/or proxy in accordance with the terms hereof and thereof, and that by entering into or performing this Agreement, the representing Party is not in violation of its charter or bylaws, or any law, regulation or agreement by which it is bound or to which it is subject; (b) That the Security execution, delivery and performance of this Agreement by such Party has been duly authorized by all requisite corporate action, that the signatories for such Party hereto are authorized to sign this Agreement, and that the joinder or consent of any other Loan DocumentParty, as applicableincluding a court or trustee or referee, which appointment is irrevocable not necessary to make valid and coupled with an interesteffective the execution, in each case, as modified by the terms delivery and performance of this AgreementAgreement by such Party. 24.2 EXCEPT AS EXPRESSLY PROVIDED HEREIN, ZAYO MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE USER DARK FIBERS, THE ZAYO SYSTEM, THE ASSOCIATED PROPERTY, OR ANY WORK PERFORMED OR TO BE PERFORMED UNDER THIS AGREEMENT, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR USE, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. THE WARRANTIES SET FORTH IN THIS AGREEMENT CONSTITUTE THE ONLY WARRANTIES MADE BY ZAYO TO USER WITH RESPECT TO THIS AGREEMENT AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED.