Common use of Representations and Warranties and Covenants Clause in Contracts

Representations and Warranties and Covenants. To induce Agent and Lenders to enter into this Amendment, Borrower, Holdings and Parent Entity, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing; 4.2 Each of Borrower, Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such parties; 4.4 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings or Parent Entity, except as already has been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity).

Representations and Warranties and Covenants. To induce Agent and Lenders to enter into this Amendment, Borrower, Holdings Borrower and Parent EntityHoldings, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing; 4.2 Each of Borrower, Borrower and Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such partiesauthorized; 4.4 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings Borrower or Parent EntityHoldings, except as already has been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Borrower and Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings Borrower and Parent EntityHoldings, enforceable against each of Borrower, Borrower and Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization reorganization, liquidation, moratorium or other similar law laws of general application and equitable principles relating to or affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity)rights.

Representations and Warranties and Covenants. To induce Agent and Lenders Xxxxxxx to enter into this Amendment, Borrower, Holdings and Parent Entity, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing; 4.2 Each of Borrower, Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 The execution and delivery by BorrowerXxxxxxxx, Holdings and Parent Entity of this Amendment and the performance by BorrowerXxxxxxxx, Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such parties; 4.4 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings or Parent Entity, except as already has have been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity).

Representations and Warranties and Covenants. To induce Agent and Lenders to enter into this Amendment, Borrower, Holdings Borrower and Parent EntityHoldings, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) , no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing; 4.2 Each of Borrower, Borrower and Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such partiesauthorized; 4.4 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings Borrower or Parent EntityHoldings, except as already has been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Borrower and Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings Borrower and Parent EntityHoldings, enforceable against each of Borrower, Borrower and Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization reorganization, liquidation, moratorium or other similar law laws of general application and equitable principles relating to or affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity)rights.

Representations and Warranties and Covenants. To induce Agent and Lenders to enter into this Amendment, Borrower, Holdings Borrower and Parent EntityHoldings, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing; 4.2 Each of Borrower, Borrower and Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such partiesauthorized; 4.4 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings Borrower or Parent EntityHoldings, except as already has been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Borrower and Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings Borrower and Parent EntityHoldings, enforceable against each of Borrower, Borrower and Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization reorganization, liquidation, moratorium or other similar law laws of general application and equitable principles relating to or affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity)rights.

Representations and Warranties and Covenants. To induce Agent and Lenders to enter into this Amendment, Borrower, Holdings and Parent Entity, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing, except as temporarily waived pursuant to that certain Temporary Waiver dated as of December 3, 2021; 4.2 Each of Borrower, Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such parties; 4.4 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings or Parent Entity, except as already has been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity).

Representations and Warranties and Covenants. To induce Agent and Lenders to enter into this Amendment, Borrower, Holdings and Parent Entity, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 5.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing; 4.2 5.2 Each of Borrower, Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 5.3 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such parties; 4.4 5.4 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings or Parent Entity, except as already has been obtained or made; and 4.5 5.5 This Amendment has been duly executed and delivered by each of Borrower, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity).

Representations and Warranties and Covenants. To induce Agent and Lenders to enter into this Amendment, Borrower, Holdings Borrower and Parent EntityHoldings, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) except with respect to the Existing Event of Default, no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuing; 4.2 Each of Borrower, Borrower and Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement; 4.3 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such partiesauthorized; 4.4 The execution and delivery by Borrower, Borrower and Holdings and Parent Entity of this Amendment and the performance by Borrower, Borrower and Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings Borrower or Parent EntityHoldings, except as already has been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Borrower and Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings Borrower and Parent EntityHoldings, enforceable against each of Borrower, Borrower and Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable except as such enforceability may be limited by bankruptcy, moratorium, insolvency, reorganization reorganization, liquidation, moratorium or other similar law laws of general application and equitable principles relating to or affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity)rights.

Representations and Warranties and Covenants. To induce Agent (a) The Mortgage Loan Seller hereby represents and Lenders warrants to the Company as of the date hereof and as of Closing Date that: (i) The Mortgage Loan Seller is a New York corporation duly organized, validly existing and in good standing under the laws of the State of New York, with the necessary corporate power and authority to own its assets and conduct its business as now being conducted, is duly qualified as a foreign corporation in good standing in all jurisdictions in which the ownership or lease of its property or the conduct of its business requires such qualification, except where the failure to be so qualified would not have a material adverse effect on the value of the Mortgage Loans and the ability of the Mortgage Loan Seller to perform its obligations hereunder, and the Mortgage Loan Seller has taken all necessary corporate action to authorize the execution, delivery and performance of this Agreement by it, and has the necessary corporate power and authority to execute, deliver and perform this Agreement and all the transactions contemplated hereby, including, but not limited to, the power and authority to sell, assign, transfer, set over and convey the Mortgage Loans in accordance with this Agreement; (ii) This Agreement has been duly authorized, executed and delivered by the Mortgage Loan Seller and assuming the due authorization, execution and delivery by the Company, will constitute a legal, valid and binding obligation of the Mortgage Loan Seller, enforceable against the Mortgage Loan Seller in accordance with the terms of this Agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), or by public policy considerations underlying the securities laws, to the extent that such public policy considerations limit the enforceability of the provisions of this Agreement which purport to provide indemnification from liabilities under applicable securities laws; (iii) The execution and delivery of this Agreement by the Mortgage Loan Seller and the performance of its obligations hereunder (1)will not conflict with any provision of any law or regulation to which the Mortgage Loan Seller is subject, or conflict with, result in a breach of or constitute a default under any of the terms, conditions or provisions of any of the Mortgage Loan Sellers organizational documents or any agreement or instrument to which the Mortgage Loan Seller is a party or by which it is bound, or any order or decree applicable to the Mortgage Loan Seller, or result in the creation or imposition of any lien on any of the Mortgage Loan Sellers assets or property, in each case which would materially and adversely affect the ability of the Mortgage Loan Seller to carry out the transactions contemplated by this Agreement; and (2)does not require the consent of any third party or such consent has been obtained. (iv) There is no action, suit, proceeding or investigation pending or, to the knowledge of the Mortgage Loan Seller, threatened against the Mortgage Loan Seller in any court or by or before any other governmental agency or instrumentality which, in the Mortgage Loan Sellers good faith and reasonable judgment, would materially and adversely affect the validity of the Mortgage Loans or the ability of the Mortgage Loan Seller to enter into or which would be likely to impair materially and adversely the ability of the Mortgage Loan Seller to carry out the transactions contemplated by, this AmendmentAgreement; (v) The Mortgage Loan Seller is not in default with respect to any order or decree of any court or any order, Borrowerregulation or demand of any federal, Holdings state, municipal or governmental agency, which default might have consequences that, in the Mortgage Loan Sellers good faith and Parent Entityreasonable judgment, jointly would materially and severallyadversely affect the condition (financial or other) or operations of the Mortgage Loan Seller or its properties or might have consequences that would materially and adversely affect its performance hereunder; (vi) No consent, approval, authorization or order of any court or governmental agency or body is required for the execution, delivery and performance by the Mortgage Loan Seller of or compliance by the Mortgage Loan Seller with this Agreement or the consummation of the transactions contemplated by this Agreement, other than those which have been obtained by the Mortgage Loan Seller; (vii) The transfer, assignment and conveyance of the Mortgage Loans by the Mortgage Loan Seller to the Company is not subject to bulk transfer laws or any similar statutory provisions in effect in any applicable jurisdiction; and (viii) Under generally accepted accounting principles ("GAAP") and for federal income tax purposes, the Mortgage Loan Seller will report the transfer of the Mortgage Loans to the Company as a sale of the Mortgage Loans to the Company. The consideration received by the Mortgage Loan Seller upon the sale of the Mortgage Loans to the Company will constitute reasonably equivalent value and fair consideration for the Mortgage Loans. The Mortgage Loan Seller will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Mortgage Loans to the Company. The Mortgage Loan Seller is not selling the Mortgage Loans to the Company with any intent to hinder, delay or defraud any of the creditors of the Mortgage Loan Seller. (b) The Mortgage Loan Seller hereby represent and warrant to Agent and each Lender as follows: 4.1 Immediately after giving effect to this Amendment (a) makes the representations and warranties contained in the Schedule I, Schedule II and Schedule III with respect to each Mortgage Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent specified therein or, if no such representations and warranties relate to an earlier datedate is specified, in which case they are true and correct as of such date)the Closing Date. (c) The Mortgage Loan Seller hereby covenants that it shall, within 10 days of the Closing Date, notify the Lease Enhancement Policy Issuer and the RVI Insurer that (i) both the Master Servicer and Special Servicer shall be sent notices under each Lease Enhancement Policy and RVI Policy, and (bii) no Regulatory Trigger Eventthe Master Servicer c/o Norwest Bank Minnesota, Default Trigger EventNational Association, First Payment Default Trigger Eventas Trustee for the registered holders of Xxxxxxx Xxxxx Mortgage Investors, Default or Event of Default has occurred and is continuing; 4.2 Each of BorrowerInc., Holdings and Parent Entity has Mortgage Pass-Through Certificates, Series 1998-C1-CTL, shall be the power and authority to execute and deliver this Amendment and to perform its obligations loss payee under the Loan Agreement; 4.3 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment each RVI Policy and the performance by Borrower, Holdings and Parent Entity of their respective obligations named insured under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such parties; 4.4 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings or Parent Entity, except as already has been obtained or made; and 4.5 This Amendment has been duly executed and delivered by each of Borrower, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity)Lease Enhancement Policy.

Representations and Warranties and Covenants. To In order to induce the Agent and the Lenders to enter into this Amendment, Borrower, Holdings each Borrower hereby represents and Parent Entity, jointly and severally, hereby represent and warrant warrants to the Agent and each Lender the Lenders that, as followsof the Effective Date, the following statements are true and correct: 4.1 Immediately after giving effect to this Amendment (a) the all representations and warranties contained herein and in the Amended Credit Agreement and the other Loan Agreement Documents are true, accurate true and complete correct in all material respects (or, in the case of any such representation or warranty already qualified as to materiality, in all respects) as of the date hereof (as though made on and as of such date, except to the extent that such representations and warranties expressly relate solely to an earlier date, date (in which case they are such representations and warranties were true and correct on and as of such earlier date), and ; (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event the execution and delivery of Default has occurred and is continuing; 4.2 Each of this Amendment by each Borrower, Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform performance by each Borrower of its obligations under the Loan Agreement; 4.3 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their respective obligations under the Loan Amended Credit Agreement (i) have been duly authorized by all requisite action action, corporate or otherwise, of such parties each Borrower and have been duly executed and delivered by such parties; 4.4 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment and the performance by Borrower, Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, do (ii) will not require any order, consent, approval, license, authorization conflict with or validation result in a breach of, or filingconstitute a default (or might, recording upon the passage of time or registration withthe giving of notice or both, constitute a default) under, any of the terms, conditions or exemption by provisions of any applicable statute, law, rule, regulation or ordinance or any Borrowers’ organizational documents, the New Convertible Notes Indenture or the Indenture or any judgment or order of any court or governmental department, commission, board, bureau, agency or public body instrumentality, domestic or authorityforeign, and (iii) will not result in the creation or subdivision thereofimposition of any lien, binding on either Borrower, Holdings charge or Parent Entity, except as already has been obtained encumbrance of any nature whatsoever upon any of the property or made; andassets of any Borrower under the terms or provisions of any such agreement or instrument; 4.5 This (c) this Amendment has been duly executed by each Borrower and delivered by to the Agent and this Amendment and the Amended Credit Agreement constitute the legal, valid and binding obligations of each of Borrower, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its their terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization reorganization, moratorium or other similar law laws affecting the enforceability of creditors’ rights generally and subject to the effect of general principles of equity (equity, regardless of whether considered in a proceeding in equity or at law law; (d) no consent, approval or authorization of or designation, declaration or filing with any Governmental Authority or any other Person (other than the NASDAQ Global Market, which consent, approval and authorization was obtained prior to the Effective Date) on the part of any Borrower is required in equity)connection with the execution and delivery of this Amendment or performance by such Borrower of this Amendment or under the Amended Credit Agreement; (e) no Event of Default and no event which, after notice or lapse of time or both, would become an Event of Default, has occurred and is continuing under the Credit Agreement; and (f) Schedule I sets forth the Accreted Loan Value of the Loans as of the date hereof.

Representations and Warranties and Covenants. To induce Agent and Lenders Xxxxxxx to enter into this AmendmentAgreement, Borrower, Holdings and Parent Entity, jointly and severally, hereby represent and warrant to Agent and each Lender as follows: 4.1 5.1 Immediately after giving effect to this Amendment Agreement (a) the representations and warranties contained in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (b) no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default or Event of Default has occurred and is continuingcontinuing that has not been expressly waived hereby; 4.2 5.2 Each of Borrower, Holdings and Parent Entity has the power and authority to execute and deliver this Amendment Agreement and to perform its obligations under the Loan Agreement; 4.3 5.3 The execution and delivery by BorrowerXxxxxxxx, Holdings and Parent Entity of this Amendment Agreement and the performance by BorrowerXxxxxxxx, Holdings and Parent Entity of their respective obligations under the Loan Agreement have been duly authorized by all requisite action of such parties and have been duly executed and delivered by such parties; 4.4 5.4 The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment Agreement and the performance by Borrower, Holdings and Parent Entity of their obligations under the Loan Agreement, as amended by this Amendment, Agreement do not require any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings or Parent Entity, except as already has been obtained or made; and 4.5 5.5 This Amendment Agreement has been duly executed and delivered by each of Borrower, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its terms, subject to the effect of any applicable bankruptcy, moratorium, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity).

Representations and Warranties and Covenants. To In order to induce Agent Bank to execute, deliver and Lenders perform this Agreement, Borrower represents and warrants and covenants to enter into this Amendment, Borrower, Holdings and Parent Entity, jointly and severally, hereby represent and warrant to Agent and each Lender Bank as follows: 4.1 Immediately after giving effect to this Amendment (a) There are no defaults other than the Existing Defaults (as defined below) and all representations and warranties contained made in the Loan Agreement are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they Documents are true and correct as of such date), and the Effective Date; (b) This Agreement is not being made or entered into with the actual intent to hinder, delay, or defraud any entity or person, and Borrower is solvent and not bankrupt. Except as specifically provided in this Agreement, no Regulatory Trigger Event, Default Trigger Event, First Payment Default Trigger Event, Default express or Event implied consent to any further forbearance or modifications involving any of Default has occurred and is continuingthe matters set forth in this Agreement or otherwise shall be inferred or implied by Bank's execution of this Agreement or any other action of Bank; 4.2 Each of Borrower, Holdings and Parent Entity has the power and authority to execute and deliver this Amendment and to perform its obligations (c) Borrower is presently in default under the Loan Documents as follows (collectively, the "Existing Defaults"): (i) Borrower's failure to make a principal payment of $100,000 that was due and payable on June 5, 2003, under the terms of the Note; (ii) Borrower's conversion of collateral pledged pursuant to the Security Agreement; 4.3 (iii) Borrower's failure to pay the accelerated balance due under the Loan Documents by June 20, 2003, pursuant to Bank's demand letter dated June 11, 2003; and (iv) Borrower's failure to pay the entire balance due under the Note that was due and payable on July 5, 2003. (d) This Agreement is not intended by the parties to be a novation of the Loan Documents and, except as expressly modified herein, all terms, 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; (e) No action or proceeding, including, without limitation, a voluntary or involuntary petition for bankruptcy under any chapter of the Federal Bankruptcy Code, has been instituted or threatened by or against Borrower and Borrower does not intend (i) to file any petition under any chapter of the Federal Bankruptcy Code, or in any manner to seek relief, protection, reorganization, liquidation, dissolution or similar relief for debtors under any other local, state, federal or other insolvency law or laws providing for relief of debtors or in equity, or (ii) directly or indirectly to cause any involuntary petition under any chapter of the Federal Bankruptcy Code to be filed against Borrower, or directly or indirectly to cause Borrower to become the subject of any proceedings pursuant to any other state, federal or other insolvency laws or laws providing for the relief of debtors, either at the present time, or any time hereafter; (f) The execution and delivery by Borrower, Holdings and Parent Entity of this Amendment Agreement by Borrower and the performance by BorrowerBorrower of its obligations hereunder will not violate or result in a breach or constitute a default under any agreements to which it is a party; (g) All information provided by Borrower to Bank prior to the date hereof, Holdings including, without limitation, all financial statements, balance sheets, and Parent Entity cash flow statements, was, at the date of their respective obligations under delivery, and is, as of the date hereof, true and correct in all respects. Borrower recognizes and acknowledges that Bank is entering into this Agreement based in part on the financial information provided to Bank by Borrower and that the truth and correctness of that financial information is a material inducement to Bank in entering into this Agreement. During the term of this Agreement, Borrower agrees to advise Bank promptly in writing of any and all new information, facts, or occurrences that would in any way materially supplement, contradict, or affect any financial statements, balance sheets, cash flow statements, or similar items furnished to Bank; (h) This Agreement and the Loan Agreement have been duly authorized by all requisite Documents constitute the entire agreement among Bank and Borrower with respect to this matter; (i) Borrower has no defenses, affirmative defenses, set-offs, claims, counterclaims or causes of action of such parties any kind or nature whatsoever with respect to (i) the Loan Documents or the indebtedness evidenced or secured thereby, (ii) any other documents or instruments evidencing, securing or in any way relating to the Loan Documents or (iii) the administration or funding by the Bank of the Loan Documents and have been duly executed and delivered by such partiesthe Loan evidenced thereby; 4.4 The execution (j) Borrower shall reimburse Bank for all fees and delivery expenses incurred by BorrowerBank, Holdings and Parent Entity of this Amendment and the performance including reasonable attorney's fees incurred by BorrowerBank, Holdings and Parent Entity of their obligations under with respect to the Loan AgreementDocuments, as amended by this Amendment, do not require Forbearance Agreement and any order, consent, approval, license, authorization or validation of, or filing, recording or registration with, or exemption by any governmental or public body or authority, or subdivision thereof, binding on either Borrower, Holdings or Parent Entity, except as already has been obtained or madedocuments related thereto; and 4.5 This Amendment has been duly executed (k) Borrower shall be allowed to make interest payments to The Jacksonville Bank and delivered by each of Borrowerpayments to Xxxxxx X. Xxxxxx, Holdings and Parent Entity and is the binding obligation of each of Borrower, Holdings and Parent Entity, enforceable against each of Borrower, Holdings and Parent Entity in accordance with its termsthe terms and conditions of the Forbearance and Modification Agreement between Intrepid Capital Corporation and Xxxxxx X. Xxxxxx, subject to the effect of any applicable bankruptcydated June 6, moratorium2003, insolvency, reorganization or other similar law affecting the enforceability of creditors’ rights generally and to the effect of general principles of equity (whether in a proceeding at law or in equity)providing that there are no defaults under this Agreement.