Common use of Representations and Warranties of Borrower Clause in Contracts

Representations and Warranties of Borrower. (a) The Recitals in this Amendment are true and correct in all respects. (b) All representations and warranties of the Credit Parties in the Loan Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date. (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power, and has been duly authorized by all requisite action, to execute and deliver this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legal, valid and binding obligations of the other Credit Parties, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar law affecting creditors’ rights generally. (f) The execution, delivery and performance of this Amendment and the other documents and agreements executed and delivered in connection herewith do not and will not (i) violate any law, rule, regulation or court order to which any of the Credit Parties is subject; (ii) conflict with or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by each of the Credit Parties, or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this Amendment.

Representations and Warranties of Borrower. Borrower hereby represents and warrants to Lender as follows: (a) The Recitals Borrower (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of New York and (ii) has all requisite power and authority to carry on its business, to own and hold its properties and assets, to enter into and perform this Amendment are true Agreement and correct in all respectsto issue and carry out the provisions of the Note. (b) All representations The execution, delivery and warranties performance by Borrower of the Credit Parties in the Loan this Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date. (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power, and has been duly authorized by all requisite action, to execute and deliver this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party Note have been duly executed and delivered validly authorized by it. (e) Borrower's Board of Directors and no authorization or approval of Borrower's shareholders is required in connection therewith. This Amendment is the legal, valid and binding obligation of Borrower Agreement and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are Note constitute the legal, valid and binding obligations of the other Credit Parties, in Borrower and each case is enforceable against each of the other Credit Parties Borrower in accordance with their its respective terms, except as such enforceability enforcement may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or insolvency and other similar law laws affecting the enforcement of creditors’ ' rights generally. (fc) The execution, delivery and performance by Borrower of this Amendment Agreement and the other documents and agreements executed and delivered in connection herewith do not and will not issuance of the Note (i) violate any lawwill not conflict with, rule, regulation or court order to which any of the Credit Parties is subject; (ii) conflict with or result in a breach of the certificate or constitute a default under any contract, agreement, indenture, loan or credit agreement, deed of formation or incorporationtrust, bylawsmortgage, limited liability company lease, security agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument arrangement to which it Borrower is a party or by which the properties of Borrower or any of the Credit Parties its properties or assets is boundbound or affected; (ii) will not cause Borrower to violate or contravene any provision of its Certificate of Incorporation or Bylaws; or (iii) result in the creation or imposition of require any Lien on any property of any of the Credit Partiesauthorization, whether now owned or hereafter acquiredconsent, other than Liens in favor of Administrative Agent. (g) No consent or authorization ofapproval, filing with permit, exemption or other act action by or in respect notice to any court or administrative or governmental body pursuant to the Certificate of Incorporation or Bylaws of Borrower, any Governmental Authority law, statute, rule or regulation to which Borrower is subject or any other Person is required in connection with the executionagreement, delivery instrument, order, judgment or performance by each of the Credit Parties, or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith decree to which any of the Credit Parties Borrower is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this Amendmentsubject.

Representations and Warranties of Borrower. (a) The Recitals in this Amendment are true Borrower represents and correct in all respects.warrants that: (b) All representations 4.1 Each company listed as Borrower is a corporation duly organized and warranties existing under the laws of the Credit Parties in the Loan Agreement a state, and is properly licensed and in the other Loan Documents to good standing in every jurisdiction in which it is a party are incorporated herein in full by this reference and are true and correct in all material respects as of the date hereofdoing business, except where failure to the extent that any such representation or warranty expressly relates to an earlier datebe so qualified would not have a material adverse effect on Borrower's business. (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power, and has been duly authorized by all requisite action, to execute and deliver this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legal, valid and binding obligations of the other Credit Parties, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar law affecting creditors’ rights generally. (f) 4.2 The execution, delivery and performance of this Amendment Agreement and any instrument or agreement required of Borrower hereunder are within Borrower's powers, have been duly authorized and are not in conflict with the other documents and agreements executed and delivered in connection herewith do not and will not (i) violate terms of the articles of incorporation or bylaws of Borrower, or any law, rule, regulation instrument or court order agreement to which any of the Credit Parties Borrower is subject; (ii) conflict with or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties Borrower is bound; bound or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agentaffected. (g) 4.3 No consent or authorization ofapproval, filing with consent, exemption or other act by action by, or in respect of notice to or filing with, any Governmental Authority or any other Person governmental authority is required necessary in connection with the execution, delivery or performance by each of the Credit Partiesdelivery, performance, or the validity or enforceability, enforcement of this Amendment Agreement or the other documents any instrument or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactionsagreement required hereunder, except as otherwise expressly contemplated may have been obtained and certified copies of which have been delivered to Holder. 4.4 There is no law, rule or regulation, nor is there any judgment, decree or order of any court or governmental authority binding on Borrower, which would be contravened by the execution, delivery, performance or enforcement of this AmendmentAgreement or any instrument or agreement required of Borrower hereunder. 4.5 This Agreement is a legal, valid and binding agreement of Borrower, enforceable against Borrower in accordance with its terms, and any instrument or agreement required to Borrower hereunder, when executed and delivered, and will be similarly legal, valid, binding and enforceable, except as enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally, and subject to rules of law governing specific performance, injunctive relief and other equitable remedies. 4.6 Borrower has good and marketable title to the Collateral which is subject to the Security Agreement, free and clear of all clouds to title and of all security interests, liens, encumbrances or rights of others, other than those in favor of First Union National Bank and those listed on Schedule A attached hereto. 4.7 Borrower represent that as of the Closing that the loan by Holder hereunder shall be prior and superior to any other indebtedness of Borrower other than the security interest held by First Union National Bank ("Bank"). Except for the due filing or recording of financing statements on Form UCC-1 pursuant to the Security Agreement, no further action is necessary in order to establish and perfect Holder's security interest in or lien on all Collateral subject only to the security interest of the Bank. 4.8 There are no suits, proceedings, claim or disputes pending or, to the knowledge of Borrower, threatened against or affecting Borrower or its property, the adverse determination of which might affect Borrower's financial condition or operations or impair Borrower's ability to perform their obligations hereunder or under any instrument or agreement required hereunder. 4.9 Borrower has provided to Holder preliminary drafts of financial statements of Borrower for fiscal year end 1997 and 1998 (June 1997 and June 1998), and financial statement and balance sheet, and unaudited financial statements for the period of July through September 1998 (collectively the "Financial Statements"). Borrower represents that the Financial Statements were prepared in accordance with generally accepted accounting principles and fairly represents Borrower's financial condition and results of operations as of the date thereof.

Representations and Warranties of Borrower. To induce Lender to make the Loan available hereunder pursuant to this Agreement, Borrower hereby represents and warrants to Lender as follows: (a) The Recitals Borrower is a corporation, duly organized and in good standing under the laws of the State of Delaware and has all requisite power and authority to enter into this Amendment are true Agreement and correct in the other Loan Documents to be entered into by it and to perform all respectsof its obligations hereunder and thereunder. (b) All representations The execution and warranties delivery by Borrower of the Credit Parties Loan Documents, and the performance of its obligations hereunder and thereunder, have been duly authorized by all necessary action, corporate or otherwise, and do not and will not: (i) require any further action, consent or approval on the part of the Borrower; (ii) violate any provision of law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in the Loan Agreement and effect having applicability to Borrower; or (iii) result in the any breach of or constitute a default under any indenture or loan or credit agreement or any other Loan Documents agreement, lease or instrument to which it the Borrower is a party are incorporated herein in full or by this reference and are true and correct in all material respects as of which the date hereof, except to the extent that any such representation Borrower or warranty expressly relates to an earlier dateits properties may be bound or affected. (c) After giving Borrower is not in default (nor is any waiver in effect) under any applicable law, rule, regulation, order, writ, judgment, injunction, decree, determination or award or any indenture, loan or credit agreement or any other agreement, lease or instrument applicable to it or by which it is bound, except where such default would not reasonably be expected to have a material adverse effect to this Amendment, no Default or Event of Default has occurred and is continuingon Borrower. (d) Borrower has Upon execution of the powerLoan Documents, and has been duly authorized by all requisite action, to execute and deliver this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been Loan Documents will be duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the will be legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties Borrower in accordance with their respective terms, except as such enforceability may be limited by any subject to: (i) applicable bankruptcy, insolvency, reorganization, moratorium, insolvency or similar law laws affecting creditors’ rights creditor’s right and remedies generally, (ii) general principles of equity and (iii) the discretion of the court before which any proceeding therefore may be brought. (fe) The executionThere is no material action, delivery and performance of this Amendment and the other documents and agreements executed and delivered suit, proceeding, inquiry or investigation, at law or in connection herewith do not and will not (i) violate equity, or before any lawcourt, rulegovernmental instrumentality, regulation public board or court order to which arbitrator pending or threatened against or affecting Borrower or any of the Credit Parties is subject; (ii) conflict with its properties or result in a breach of the certificate of formation rights, wherein an unfavorable decision, ruling or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by each of the Credit Parties, or finding would adversely effect the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any enforceability of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentLoan Documents.

Representations and Warranties of Borrower. (a) The Recitals Borrower represents, warrants and agrees that: 3.1 it has good title in this Amendment are true and correct in to the Equipment, free of all respects. (b) All representations liens, security interests, encumbrances and warranties claims whatsoever, except for the interest of the Credit Parties Lender therein; 3.2 it has the full power and authority to, and does hereby grant and convey to the Lender, a valid first priority perfected security interest in the Loan Agreement Collateral as security for the Secured Obligations, free of all liens, security interests, encumbrances and claims, and shall execute such Uniform Commercial Code ("UCC") financing statements in connection herewith as the Lender may reasonably request. No other Loan Documents lien, security interest, adverse claim or encumbrance has been created by Borrower or is known by Borrower to which exist with respect to any Collateral; 3.3 it is a party are incorporated herein corporation duly organized, legally existing and in full by this reference good standing under the laws of the State of Delaware, and are true and correct is duly qualified as a foreign corporation in all jurisdictions where the failure to so qualify would have a material respects as adverse effect on the Collateral or the business of the date hereofBorrower taken as a whole; 3.4 the execution, except delivery and performance of the Note, this Agreement, the Warrant Agreement dated September 25, 1998 pursuant to which Borrower granted to Lender the extent that any such representation or warranty expressly relates right to an earlier date. purchase the number of shares of preferred stock as set forth therein (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power"Warrant Agreement"), and has all financing statements, certificates and other documents required to be delivered or executed in connection herewith (collectively, the "Loan Documents") have been duly authorized by all requisite actionnecessary corporate action of Borrower, the individual or individuals executing the Loan Documents were duly authorized to execute do so, the Equipment is personal property and deliver this Amendment as used by the Borrower will not be or become fixtures under applicable law, and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the Loan Documents constitute legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any subject to applicable bankruptcy, insolvency, reorganization, moratorium, reorganization or other similar law laws generally affecting the enforcement of the rights of creditors’ rights generally.; (f) The execution, delivery and performance of this Amendment and 3.5 the other documents and agreements executed and delivered in connection herewith Loan Documents do not and will not (i) violate any provisions of its Certificate of Incorporation, bylaws or any contract, agreement, law, ruleregulation, regulation order, injunction, judgment, decree or court order writ to which any of the Credit Parties Borrower is subject; (ii) conflict with , or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of lien, security interest or other encumbrance upon the Credit Parties, whether now owned or hereafter acquiredCollateral, other than Liens in favor of Administrative Agent.those created by this Agreement; (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with 3.6 the execution, delivery or and performance by each of the Credit PartiesLoan Documents do not require the consent or approval of any other person or entity including, without limitation, any regulatory authority or governmental body of the United States or any state thereof or any political subdivision of the United States or any state thereof. 3.7 as of the date hereof no fact or condition exists that would (or could, with the passage of time, the giving of notice, or the validity both) constitute an Event of Default under this Agreement or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties Loan Documents and no event which has had or could reasonably be expected to have a Material Adverse Effect has occurred and is continuing. For purposes of this Agreement, "Material Adverse Effect" means a partymaterial adverse effect upon (i) the business, operations, properties, assets or financial condition of Borrower; or (ii) the consummation ability of Borrower to perform the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentSecured Obligations.

Representations and Warranties of Borrower. (a) The Recitals Borrower represents, warrants and agrees that: 3.1 it has good title in this Amendment are true and correct in to the Equipment, free of all respects. (b) All representations liens, security interests, encumbrances and warranties claims whatsoever, except for the interest of the Credit Parties Lender therein; 3.2 it has the full power and authority to, and does hereby grant and convey to the Lender, a valid first priority perfected security interest in the Loan Agreement Collateral as security for the Secured Obligations, free of all liens, security interests, encumbrances and claims, and shall execute such Uniform Commercial Code ("UCC") financing statements in connection herewith as the Lender may reasonably request. No other Loan Documents lien, security interest, adverse claim or encumbrance has been created by Borrower or is known by Borrower to which exist with respect to any Collateral; 3.3 it is a party are incorporated herein corporation duly organized, legally existing and in full by this reference good standing under the laws of the State of Delaware, and are true and correct is duly qualified as a foreign corporation in all jurisdictions where the failure to so qualify would have a material respects as adverse effect on the Collateral or the business of the date hereofBorrower taken as a whole; 3.4 the execution, except delivery and performance of the Note, this Agreement, the Warrant Agreement dated December 16, 1999 pursuant to which Borrower granted to Lender the extent that any such representation or warranty expressly relates right to an earlier date. purchase the number of shares of preferred stock as set forth therein (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power"Warrant Agreement"), and has all financing statements, certificates and other documents required to be delivered or executed in connection herewith (collectively, the "Loan Documents") have been duly authorized by all requisite actionnecessary corporate action of Borrower, the individual or individuals executing the Loan Documents were duly authorized to execute do so, the Equipment is personal property and deliver this Amendment as used by the Borrower will not be or become fixtures under applicable law, and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the Loan Documents constitute legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any subject to applicable bankruptcy, insolvency, reorganization, moratorium, reorganization or other similar law laws generally affecting the enforcement of the rights of creditors’ rights generally.; (f) The execution, delivery and performance of this Amendment and 3.5 the other documents and agreements executed and delivered in connection herewith Loan Documents do not and will not (i) violate any provisions of its Certificate of Incorporation, bylaws or any contract, agreement, law, ruleregulation, regulation order, injunction, judgment, decree or court order writ to which any of the Credit Parties Borrower is subject; (ii) conflict with , or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of lien, security interest or other encumbrance upon the Credit Parties, whether now owned or hereafter acquiredCollateral, other than Liens in favor of Administrative Agent.those created by this Agreement; (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with 3.6 the execution, delivery or and performance by each of the Credit PartiesLoan Documents do not require the consent or approval of any other person or entity including, without limitation, any regulatory authority or governmental body of the United States or any state thereof or any political subdivision of the United States or any state thereof. 3.7 as of the date hereof no fact or condition exists that would (or could, with the passage of time, the giving of notice, or the validity both) constitute an Event of Default under this Agreement or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties Loan Documents and no event which has had or could reasonably be expected to have a Material Adverse Effect has occurred and is continuing. For purposes of this Agreement, "Material Adverse Effect" means a partymaterial adverse effect upon (i) the business, operations, properties, assets or financial condition of Borrower; or (ii) the consummation ability of Borrower to perform the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentSecured Obligations.

Representations and Warranties of Borrower. (a) The Recitals in this Amendment are true Borrower represents and correct in all respects. (b) All representations and warranties of the Credit Parties in the Loan Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects warrants that, as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date.: (ca) After giving effect to The execution, delivery and performance by Borrower of this Amendment, no Default or Event are within the organizational power of Default has occurred and is continuing. (d) Borrower has the powerBorrower, and has have been duly authorized by all requisite necessary action, have received all necessary governmental approval (if any shall be required), other than approvals which could not reasonably be expected to execute have a Material Adverse Effect on Borrower, and deliver do not and will not contravene or conflict with any provision of law applicable to Borrower, the articles of incorporation, by-laws or any other organizational document of Borrower, any order, judgment or decree of any court or governmental agency, or any agreement, instrument or document binding upon Borrower or any property of Borrower, in each case, which contravention or conflict could reasonably be expected to have a Material Adverse Effect on Borrower; (b) Each of the Amended and Restated Loan Agreement, as amended by this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith Other Agreements to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties Borrower in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, insolvency or similar law affecting creditors’ other laws related to enforcement of creditor’s rights generally.generally and general principles of equity related to enforcement; (fc) The executionAfter giving effect to the amendments set forth herein, delivery no Event of Default or event or condition which upon notice, lapse of time or both would constitute an Event of Default has occurred and performance is continuing; and (d) After giving effect to the amendments set forth herein, the representations and warranties of this Amendment the Borrower contained in the Amended and Restated Loan Agreement and the other documents Other Agreements are true and agreements executed and delivered in connection herewith do not and will not (i) violate any law, rule, regulation or court order to which any accurate as of the Credit Parties is subject; (ii) conflict date hereof with or result in a breach the same force and effect as if such had been made on and as of the certificate of formation or incorporationdate hereof, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument except for those specific to a past date (which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by each of the Credit Parties, or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation shall be true and correct as of such transactions, except as otherwise expressly contemplated by this Amendmentpast date).

Representations and Warranties of Borrower. (a) The Recitals in this Amendment Borrower represents and warrants to the Lender that the following are true and correct on the date the Borrower executes any Loan: (i) The Borrower is duly formed and validly existing under the laws of the State of its organization, and has the full power and authority and legal right to carry on its business as is now conducted, and is duly qualified to do business in all respectsthe jurisdictions where the Collateral is or will be operated, in each case, except as would not reasonably be expected to have a material adverse effect on Borrower or its business. (bii) All representations and warranties of the Credit Parties in the The Loan Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date. (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power, and has been duly authorized by all requisite actionauthorized, to execute and deliver this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legalBorrower, valid and, constitutes the valid, legal and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any agreement of the other Credit Parties is a party are the legalBorrower, valid and binding obligations of the other Credit Parties, in each case enforceable against each of the other Credit Parties Borrower in accordance with their respective terms, its terms except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar law laws affecting the enforcement of creditors’ rights generallygenerally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law). (fiii) The execution, execution and delivery and performance by the Borrower of this Amendment the Loan and the other documents and agreements executed and delivered in connection herewith do not Borrower’s compliance with all of the provisions of the Loan are within the powers of the Borrower, and will not (i) violate any lawnot, ruleto the best of Borrower’s knowledge, regulation or court order to which any of the Credit Parties is subject; (ii) conflict with or result in a breach of any presently existing material law or governmental rule, regulation order, writ, injunction or decree. (iv) No authorization or approval from, consent of, or filing, registration or qualification with, any state, federal or local governmental or public body or authority, except as has been obtained or made, is necessary for the certificate execution or delivery by the Borrower of formation the Loan, or incorporationthe validity of the Loan or the operation of the Collateral by the Borrower. (v) The Borrower, bylawshas not directly or indirectly offered, limited liability company agreement sold, encumbered or transferred any interest in the Collateral or solicited offers to buy, encumber or transfer any such interest from, anyone other organizational documents than the Lender. The Vendor of the Collateral is not affiliated with the Borrower and, to the best of Borrower’s knowledge, Lender has received the benefit of any and all material discounts or rebates thereto, and Borrower has not received directly any such rebates, discounts, kickbacks or reimbursements. (vi) Lender’s interest in each item of Collateral will be free of all claims, liens and encumbrances arising by, through or under the Credit Parties Borrower other than as permitted pursuant to the terms of this Loan. (vii) The Borrower is not in violation of any order of any court, arbitrator or any other agreement governmental body, material laws, ordinances or instrument governmental rules or regulations (domestic or foreign) to which it is party subject, or with respect to any material loan agreement, debt instrument or contract with a supplier or customer of Borrower and has not failed to obtain or apply for any material licenses, permits, franchises or other governmental authorizations necessary to the ownership of its property (including the Collateral) or to the conduct of its business. (viii) There are no suits or proceedings pending or, to the knowledge of the Borrower, threatened in any court or before any regulatory commission, board or other governmental administrative agency against or affecting the Borrower which if determined adversely to Borrower would materially adversely affect Borrower’s business as presently conducted or its ability to perform its obligations hereunder. (ix) Neither the Loan, nor any written statement furnished to the Lender by the Borrower hereby, contains any untrue statement of a material fact or omits a material fact necessary to make the statements contained therein not misleading as of the date thereof. (x) All applications, financial statements and Borrower Reports, and all information hereafter furnished by Borrower and Guarantor to Lender will be, true and correct in all material respects as of their respective dates (it being agreed that projections of future events are not to be viewed as facts and actual results may vary significantly from projected results). (xi) As of the date hereof, the date of any Loan Schedule and of any Advance Date, there has been no material adverse change in any matter stated in such Borrower Reports which the properties of have been submitted, by Borrower and/or any Guarantor to Lender. (xii) Neither Borrower nor any Guarantor has omitted to state any material fact which would make any of the Credit Parties is bound; foregoing false or materially misleading in light of the circumstances under which made. (iiixiii) result The Borrower’s principal place of business, chief executive office, and state of incorporation (as such terms are used in the creation UCC) are indicated in the heading hereof. (xiv) Since the date of the Proposal Letter issued by Lender in connection with this transaction, and as of the date of Borrower’s latest Borrower Reports, which have been previously submitted by Borrower to Lender, there has not been any material adverse change in the contemplated business, operations, properties or imposition financial condition of the Borrower. (xv) The Borrower will use the Collateral in accordance with its original request for quote or proposal, or any Lien on any other written or oral representations made concerning the usage of the Collateral. The Collateral will be used “predominately” in the United States as such term is used in the Internal Revenue Code. (xvi) The Collateral shall at all times remain the property of any Borrower except as expressly permitted herein. Borrower will at all times use commercially reasonable efforts to protect and defend at its own cost and expense, the security interest of Lender against all claims, liens and legal processes of creditors of Borrower and other persons claiming by, through or under Borrower, and keep the Credit PartiesCollateral free and clear from all such claims, whether now owned or hereafter acquiredliens and processes, in each case, other than Liens in favor of Administrative Agent. (g) No consent or authorization ofPermitted Liens. The Collateral is and shall remain personal property, filing with or other act by or in respect and not part of any Governmental Authority real estate or any other Person is required in connection with the execution, delivery or performance Borrower shall have obtained from all applicable real property interest holders appropriate Waivers and releases as reasonably requested by each of the Credit Parties, or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentLender.

Representations and Warranties of Borrower. (a) The Recitals in this Amendment are true Borrower represents and correct in all respects. (b) All representations and warranties of the Credit Parties in the Loan Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects warrants that, as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date.: (ca) After giving effect to The execution, delivery and performance by Borrower of this Amendment, no Default or Event are within the organizational power of Default has occurred and is continuing. (d) Borrower has the powerBorrower, and has have been duly authorized by all requisite necessary action, have received all necessary governmental approval (if any shall be required), other than approvals which could not reasonably be expected to execute have a Material Adverse Effect on Borrower, and deliver do not and will not contravene or conflict with any provision of law applicable to Borrower, the articles of incorporation, by-laws or any other organizational document of Borrower, any order, judgment or decree of any court or governmental agency, or any agreement, instrument or document binding upon Borrower or any property of Borrower, in each case, which contravention or conflict could reasonably be expected to have a Material Adverse Effect on Borrower; (b) Each of the Amended and Restated Loan Agreement, as amended by this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith Other Agreements to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties Borrower in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, insolvency or similar law affecting creditors’ other laws related to enforcement of creditor’s rights generally.generally and general principals of equity related to enforcement; (fc) The executionAfter giving effect to the amendments set forth herein, delivery no Event of Default or event or condition which upon notice, lapse of time or both would constitute an Event of Default has occurred and performance is continuing; and (d) After giving effect to the amendments set forth herein, the representations and warranties of this Amendment the Borrower contained in the Amended and Restated Loan Agreement and the other documents Other Agreements are true and agreements executed and delivered in connection herewith do not and will not (i) violate any law, rule, regulation or court order to which any accurate as of the Credit Parties is subject; (ii) conflict date hereof with or result in a breach the same force and effect as if such had been made on and as of the certificate of formation or incorporationdate hereof, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument except for those specific to a past date (which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by each of the Credit Parties, or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation shall be true and correct as of such transactions, except as otherwise expressly contemplated by this Amendmentpast date).

Representations and Warranties of Borrower. The Borrower represents, warrants and agrees that: 3.1 It has good title in and to the Equipment, free of all liens, security interests, encumbrances and claims whatsoever, except for the interest of the Lender therein. 3.2 It has the full power and authority to, and does hereby grant and convey to the Lender, a valid first priority perfected security interest in the Collateral as security for the Secured Obligations, free of all liens, security interests, encumbrances and claims, and shall execute such Uniform Commercial Code (a"UCC") The Recitals financing statements in this Amendment are true connection herewith as the Lender may reasonably request. No other lien, security interest, adverse claim or encumbrance has been created by Borrower or is known by Borrower to exist with respect to any Collateral. 3.3 It is a corporation duly organized, legally existing and correct in good standing under the laws of the State of Delaware, and is duly qualified as a foreign corporation in all respectsjurisdictions where the failure to so qualify would have a material adverse effect on the Collateral or the business of the Borrower taken as a whole. (b) All representations 3.4 The execution, delivery and warranties performance of the Credit Parties in Note, this Agreement, the Loan Warrant Agreement and in the other Loan Documents dated October 27, 1998 pursuant to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects Borrower granted to Lender the right to purchase the number of shares of preferred stock as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date. set forth therein (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power"Warrant Agreement"), and has all financing statements, certificates and other documents required to be delivered or executed in connection herewith (collectively, the "Loan Documents") have been duly authorized by all requisite actionnecessary corporate action of Borrower, the individual or individuals executing the Loan Documents were duly authorized to execute do so, the Equipment is personal property and deliver this Amendment as used by the Borrower will not be or become fixtures under applicable law, and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the Loan Documents constitute legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any subject to applicable bankruptcy, insolvency, reorganization, moratorium, reorganization or other similar law laws generally affecting the enforcement of the rights of creditors’ rights generally. (f) 3.5 The execution, delivery and performance of this Amendment and the other documents and agreements executed and delivered in connection herewith Loan Documents do not and will not (i) violate any provisions of its Certificate of Incorporation, bylaws or any contract, agreement, law, ruleregulation, regulation order, injunction, judgment, decree or court order writ to which any of the Credit Parties Borrower is subject; (ii) conflict with , or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on lien, security interest or other encumbrance upon the Collateral, other than those created by this Agreement. 3.6 The execution, delivery and performance of the Loan Documents do not require the consent or approval of any property other person or entity including, without limitation, any regulatory authority or governmental body of the United States or any state thereof or any political subdivision of the United States or any state thereof. 3.7 As of the date hereof no fact or condition exists that would (or could, with the passage of time, the giving of notice, or both) constitute an Event of Default under this Agreement or any of the Credit Parties, whether now owned Loan Documents and no event which has had or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person could reasonably be expected to have a Material Adverse Effect has occurred and is required in connection with the execution, delivery or performance by each of the Credit Parties, or the validity or enforceability, continuing. For purposes of this Amendment Agreement, "Material Adverse Effect" means a material adverse effect upon (i) the business, operations, properties, assets or financial condition of Borrower; or (ii) the other documents or agreements executed or delivered in connection herewith ability of Borrower to which any of perform the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentSecured Obligations.

Representations and Warranties of Borrower. Borrower represents and warrants as follows: (a) The Recitals Borrower is duly organized, validly existing and in this Amendment are true and correct in all respects.good standing under the laws of the jurisdiction of its formation. ​ (b) All representations The execution, delivery and warranties performance by Borrower of this Amendment and the Loan Agreement, as amended hereby, are within Borrower's powers, have been duly authorized by all necessary action and will not (immediately, or with the passage of time, or with the giving of notice) (1) violate provision of the Credit Parties articles of incorporation or bylaws of Borrower or the Subsidiary Bank, or violate any Laws or result in the Loan Agreement and in the other Loan Documents a default under any contract, agreement, or instrument to which it Borrower or the Subsidiary Bank is a party or by which Borrower or the Subsidiary Bank or any of their respective properties are incorporated herein bound or (2) result in full by this reference and are true and correct in all material respects as the creation or imposition of any security interest in, or lien or encumbrance upon, any of the date hereofassets of Borrower or the Subsidiary Bank, except to the extent that any such representation or warranty expressly relates to an earlier datein favor of Lender. (c) After giving effect Xxxxxxxx has the power and authority to enter into and perform this Amendment, no Default or Event and has taken all corporate action necessary to authorize the execution, delivery, and performance of Default has occurred this Amendment and is continuingthe Loan Agreement, as amended hereby. (d) Borrower has the power, and has been duly authorized by all requisite action, to execute and deliver this This Amendment and the other documents Loan Agreement, as amended hereby are valid, binding, and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legal, valid and binding obligations of the other Credit Parties, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, reorganization or similar law laws, and judicial decisions affecting creditors’ the rights generallyof creditors generally and by general principles of equity (e) Except to the extent disclosed to Lender in writing, there is no pending or, to Xxxxxxxx’s knowledge, threatened order, notice, claim, litigation, proceeding or investigation against or affecting Borrower or the Subsidiary Bank, whether or not covered by insurance, that would involve the payment by Borrower or Subsidiary Bank of $500,000.00 or more if adversely determined. (f) The execution, delivery No Default or Potential Default under the Loan Agreement has occurred and performance of this Amendment and the other documents and agreements executed and delivered in connection herewith do not and will not (i) violate any law, rule, regulation or court order to which any of the Credit Parties is subject; (ii) conflict with or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by each of the Credit Parties, or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this Amendment.continuing. ​

Representations and Warranties of Borrower. (a) The Recitals in this Amendment Waiver are true and correct in all respects. (b) All representations and warranties of the Credit Parties in the Loan Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date. (c) After giving effect to this AmendmentWaiver, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power, and has been duly authorized by all requisite action, to execute and deliver this Amendment Waiver and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment Waiver has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment Waiver is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legal, valid and binding obligations of the other Credit Parties, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar law affecting creditors’ rights generally. (f) The execution, delivery and performance of this Amendment Waiver and the other documents and agreements executed and delivered in connection herewith do not and will not (i) violate any law, rule, regulation or court order to which any of the Credit Parties is subject; (ii) conflict with or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority Waiver or any other Person is required in connection with the execution, delivery or performance by each of the Credit Parties, or the validity or enforceability, of this Amendment Waiver or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentWaiver.

Representations and Warranties of Borrower. In order to induce the Agent and the Lenders to enter into this Amendment, the Borrower represents and warrants to the Agent and the Lenders that each of the following statements is true and correct on the date hereof and as of the Second Amendment Effective Date: (a) The Recitals in this Amendment are true and correct in all respects. (b) All representations and warranties of made by the Credit Parties in the Loan Credit Agreement (other than as set forth in Section 6.12 and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and 6.14 thereof) are true and correct in all material respects at and as if made as of the date hereof, hereof and at and as of the Second Amendment Effective Date (except to the extent that any such representation or warranty representations and warranties expressly relates and exclusively relate to an earlier date). (b) Neither the execution and delivery of the Amendment Documents, nor the consummation of the transactions contemplated herein and therein, nor performance of and compliance with the terms and provisions hereof and thereof by any Credit Party will (a) violate or conflict with any provision of its organizational documents or bylaws, (b) violate, contravene or conflict with any law, regulation (including without limitation, Regulation U or Regulation X), order, writ, judgment, injunction, decree or permit applicable to it, except as would not be reasonably expected to adversely affect any Credit Party’s ability to timely pay or perform the Obligations, or the validity or enforceability of the material terms of any Credit Document, (c) violate, contravene or conflict with contractual provisions of, or cause an event of default under, any indenture, loan agreement, mortgage, deed of trust, contract or other agreement or instrument to which it is a party or by which it may be bound, except as would not be reasonably to have a Material Adverse Effect, or (d) result in or require the creation of any Lien upon or with respect to its properties other than the Liens under the Credit Agreement and under the Collateral Documents. (c) After giving effect Each Credit Party (a) has the requisite power and authority to execute, deliver and perform this AmendmentAmendment and the other Amendment Documents and to incur the obligations herein and therein provided for and (b) has been authorized by all necessary corporate, no Default partnership or Event of Default has occurred limited liability company action to execute, deliver and is continuingperform this Amendment and the other Amendment Documents. (d) Borrower has the power, and has been duly authorized by all requisite action, to execute and deliver this This Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party Documents have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the constitute legal, valid and binding obligations of the other each Credit Parties, in each case Party which is a party thereto enforceable against each of the other such Credit Parties Party in accordance with their respective terms, except as such enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, bankruptcy or insolvency laws or similar law laws affecting creditors’ rights generallygenerally or by general equitable principles. (e) No Default or Event of Default exists or is continuing either prior to or after giving effect hereto. (f) The executionSince the Effective Date, delivery and performance of this Amendment and the other documents and agreements executed and delivered in connection herewith do not and will not (i) violate any lawthere has been no event or circumstance that, ruleeither individually or collectively, regulation has had or court order would reasonably be expected to which any of the Credit Parties is subject; (ii) conflict with or result in have a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative AgentMaterial Adverse Effect. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with the execution, delivery or performance by each of the Credit Parties, or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this Amendment.

Representations and Warranties of Borrower. (a) The Recitals Borrower represents, warrants and agrees that: 3.1 it has good title in this Amendment are true and correct in to the Equipment, free of all respects. (b) All representations liens, security interests, encumbrances and warranties claims whatsoever, except for the interest of the Credit Parties Lender therein; 3.2 it has the full power and authority to, and does hereby grant and convey to the Lender, a valid first priority perfected security interest in the Loan Agreement Equipment as security for the Obligations, free of all liens, security interests, encumbrances and claims, and shall execute such Uniform Commercial Code ("UCC") financing statements in connection herewith as the Lender may reasonably request. No other Loan Documents lien, security interest, adverse claim or encumbrance has been created by Borrower or is known by Borrower to which exist with respect to any Collateral; 3.3 it is a party are incorporated herein corporation duly organized, legally existing and in full by this reference good standing under the laws of the State of Delaware, and are true and correct is duly qualified as a foreign corporation in all jurisdictions where the failure to so qualify would have a material respects as adverse effect on the Collateral or the business of the date hereofBorrower taken as a whole; 3.4 the execution, except delivery and performance of the Note, this Agreement, the Warrant Agreement dated October 30, 1997 pursuant to which Borrower granted to Lender the extent that any such representation or warranty expressly relates right to an earlier date. purchase the number of shares of preferred stock as set forth therein (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power"Warrant Agreement"), and has all financing statements, certificates and other documents required to be delivered or executed in connection herewith (collectively, the "Loan Documents") have been duly authorized by all requisite actionnecessary corporate action of Borrower, the individual or individuals executing the Documents were duly authorized to execute do so, the Equipment is personal property and deliver this Amendment as used by the Borrower will not be or become fixtures under applicable law, and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the Loan Documents constitute legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties in accordance with their respective terms, except as such enforceability may be limited by any subject to applicable bankruptcy, insolvency, reorganizationreorganization or other similar laws generally affecting the enforcement of the rights of creditors; 3.5 it shall only relocate any item of the Equipment provided that: (a) it shall have caused to be filed and/or delivered to the Lender all UCC financing statements, moratorium, certificates or similar law affecting creditors’ rights generally. (f) The execution, delivery and performance of this Amendment and the other documents or instruments necessary to continue in effect the first prior perfected security interest of the Lender in the Collateral, and agreements executed and delivered in connection herewith (b) it shall have given the Lender no less than fifteen (15) days prior written notice of such relocation; 3.6 the Loan Documents do not and will not (i) violate any provisions of its articles or certificate of incorporation, bylaws or any contract, agreement, law, ruleregulation, regulation order, injunction, judgment, decree or court order writ to which any of the Credit Parties Borrower is subject; (ii) conflict with , or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of lien, security interest or other encumbrance upon the Credit Parties, whether now owned or hereafter acquiredCollateral, other than Liens in favor of Administrative Agent.those created by this Agreement; (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required in connection with 3.7 the execution, delivery or and performance by each of the Credit PartiesLoan Documents do not require the consent or approval of any other person or entity including, without limitation, any regulatory authority or the validity or enforceability, of this Amendment or the other documents or agreements executed or delivered in connection herewith to which any governmental body of the Credit Parties is a party, United States or the consummation any state thereof or any political subdivision of the transactions contemplated hereby United States or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this Amendmentstate thereof.

Representations and Warranties of Borrower. (a) The Recitals in this Amendment are true Borrower represents and correct in all respects.warrants to the Lenders as follows: (b1) All representations It is a corporation duly organized and warranties validly existing under the laws of the Credit Parties State of Delaware, (2) It has all requisite corporate power and all material governmental licenses, authorizations, consents and approvals to own its assets and to carry on its business as now being conducted, and it is authorized, qualified and registered to do business in Alabama and in each other jurisdiction where the character of its properties or the nature of its activities makes such authorization necessary, (3) It has all requisite power and authority to execute, deliver and perform its obligations under the Project Documents and the Loan Agreement Documents, and in the other execution and delivery of each of the Project Documents and the Loan Documents to which it is a party are incorporated herein in full by this reference the Borrower and are true and correct in all material respects as of the date hereof, except to performance by the extent that any such representation or warranty expressly relates to an earlier date. (c) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing. (d) Borrower has the power, and has thereunder have been duly authorized by all requisite corporate action, to execute and deliver this Amendment , (4) Each of the Project Documents and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly Loan Documents will, when executed by the Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legalparties thereto, valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are constitute the legal, valid and binding obligations of the other Credit PartiesBorrower, in each case enforceable against each of the other Credit Parties Borrower in accordance with their respective terms, except as such enforceability enforcement may be limited (the "Enforcement Limitations") by any applicable bankruptcy, insolvency, reorganization, moratorium, or insolvency and other similar law laws affecting the enforcement of creditors’ ' rights generally.generally and by general equitable principles, (f5) Except as disclosed to the Lenders in writing prior to the date hereof, there is no action, suit, proceeding or investigation pending or, to the knowledge of the Borrower, threatened against the Borrower or any of their properties before any court, governmental agency or regulatory authority (federal, state or local) which, in the reasonable opinion of the Borrower, is more likely than not to involve an adverse decision which could have a material adverse impact on the financial condition of the Borrower and there is no action, suit, proceeding or investigation pending against the Borrower in relation to the Project, (6) The execution, principal office of the Borrower is located in _________________, (7) The execution and delivery of the Project Documents and the Loan Documents by the Borrower and the performance of this Amendment the Borrower's obligations hereunder and the other documents and agreements executed and delivered in connection herewith do not and thereunder will not (i) violate (a) any lawprovision of law or the Borrower's articles of incorporation or Bylaws (b) any applicable final order of any court or other agency of government or (c) any indenture, ruleagreement for borrowed money, regulation bond, note or court order other similar instrument or any other material agreement to which the Borrower is a party or by which the Borrower or any of the Credit Parties its property is subject; bound, (ii) be in conflict with or with, result in a breach of the certificate or constitute (with due notice or lapse of formation time or incorporationboth) a default under any such indenture, bylawsagreement, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement bond, note or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on lien of any nature whatsoever upon any property of any or assets of the Credit PartiesBorrower, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent.except as permitted under the Project Documents and the Loan Documents, (g8) All required permits in connection with the Project Work (the "Applicable Permits") No consent will be obtained and be in full force and effect prior to the initial Draw and all Applicable Permits that may later be required shall be obtained or authorization of, filing with made and shall be maintained in full force and effect when and as required. All other actions by governmental authorities or other act by or in respect of any Governmental Authority or any other Person is agencies that are not required in connection with the execution, delivery construction or performance by each operation of the Credit PartiesProject but that are otherwise required in connection with the execution and delivery of this Agreement by the Borrower and with the borrowing hereunder on any date this representation is made or deemed to have been made, and required to make this Agreement legal, valid and enforceable, have been obtained or made and are in full force and effect, (9) The Borrower has filed or caused to be filed all federal, state and local tax returns and all tax returns in other jurisdictions which are required to be filed and has paid or caused to be paid all taxes as shown on such returns or on any assessment received by it to the extent that such taxes have become due, except taxes the amount or validity of which is being contested in good faith by appropriate proceedings and with respect to which the Borrower shall have set aside on its books adequate reserves, (10) The Borrower is in compliance in all material respects with those provisions of ERISA which are applicable to the Borrower. As of the date hereof, no reportable event, as defined in ERISA, has occurred with respect to any employee plan which is subject to the provisions of Title IV of ERISA and which is maintained for employees of the Borrower or any corporation which is an affiliate of the Borrower, and no material "unfunded vested liabilities" within the meaning of ERISA exists under any such plan, (11) The Borrower is not an "investment company" as that term is defined in, and is not otherwise subject to regulation under, the Investment Company Act of 1940. The Borrower is not a "holding company" as that term is defined in, and is not otherwise subject to regulation under, the Public Utility Holding Company Act of 1935. The issuance of the Notes to the Lenders do not require registration under the Securities Act of 1933, as amended, or pursuant to the validity provisions of any securities or enforceabilityBlue Sky law of the State of Alabama, (12) The Borrower is not engaged principally, or as one of its important activities, in the business of extending credit for the purpose of purchasing or carrying any margin stock, as defined under Regulation U of the Board of Governors of the Federal Reserve System of the United States, as the same is from time to time in effect, and all official rulings and interpretations thereunder or thereof. No part of the proceeds of the Loans will be used, whether directly, incidentally or ultimately, to purchase or carry any such margin stock or to extend credit to others for the purpose of purchasing or carrying any such margin stock or to refund indebtedness originally incurred for such purpose and the Borrower will take no action that would violate, or be inconsistent with, the provisions of Regulations G, U or X of such Board, as the same are from time to time in effect, and all official rulings and interpretations thereunder or thereof, (13) No information, report, financial statement, exhibit or schedule furnished by or on behalf of the Borrower, or any of its affiliates, to the Lenders in connection with this Agreement contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein not misleading when made or delivered or as of any date to which such statements expressly relate, (14) The Borrower is in compliance with all laws, including without limiting the generality of the foregoing, those relating to environmental matters, non-compliance with which could, singly or in the aggregate, have a material adverse effect on the business, assets, liabilities, financial position, results of operations or business prospects of the Borrower or on the ability of the Borrower to perform its obligations under the Project Documents and the Loan Documents or the construction and operation of the Project as contemplated herein, (15) The information regarding the Borrower or the Project which has been supplied in writing by the Borrower to the Lenders is true and complete as of the date of this Amendment Agreement in all material respects; all projections contained in such information have been made in good faith and are believed by the Borrower as of the date of this Agreement to be reasonable; and the Borrower does not have knowledge as of the date of this Agreement of any matters relating to the properties, business or operations of the Borrower, other than matters fully disclosed in such information, which would adversely affect the properties, business or operations of the Borrower in any material respect. Such information shall be held in confidence by the Lenders, (16) The Borrower hereby agrees to construct and keep the Project in compliance with all applicable laws, ordinances and regulations including (without limitation) applicable federal, state and local environmental laws, ordinances and regulations. Without limiting the generality of the foregoing, and without the Lenders acknowledging or agreeing that either of them have any liability or obligation whatsoever to remove, clean up, abate, encapsulate or otherwise handle, treat or dispose of any toxxx xxste or hazardous substance in, on or under any portion of the Project, the Borrower hereby agrees to indemnify and hold the Lenders harmless from and against all claims, costs, expense and liability incurred by the Lenders in complying, or in bringing the Project (or any part thereof) into compliance, with any federal, state or local environmental law, ordinance or regulation. The foregoing indemnity and hold harmless agreement shall be in addition and cumulative to the rights and remedies contained in that certain Environmental Indemnity Agreement of even date herewith between and among Borrower and Lenders and shall survive the cancellation, satisfaction of record or expiration of the Mortgage without any further action or documentation on the part of the Borrower or the Lenders. Such indemnity and hold harmless agreement shall be binding upon, and shall inure to the benefit of, the Lenders and its successors and assigns. The Borrower agrees to immediately notify the Lenders of any knowledge, notice, action, lien or other documents similar actions alleging either the location of any hazardous substance or agreements executed or delivered in connection herewith the violation of any environmental law with respect to which any the Project, (17) The Land is suitable for the construction, development and operation of the Credit Parties Project. The Land has satisfactory access to public roads. The Project, when completed, will be adequately serviced by all necessary water, sewer, electrical, telephone and any other utility services required to construct, use and occupy the Project. Upon construction, the Project will be free from structural defects and its equipment will be of first-class workmanship and materials and free from material defects. The Project, when completed in accordance with the Construction Drawings and the Design Plans, will be suitable for the Borrower's purposes and needs, (18) The obligations of the Borrower under the Notes and the Loan Documents are not subordinate to any obligations of the Borrower to the City, County or State of Alabama. (19) The mortgage and security interests held by the Lenders under the Security Documents are valid and perfected first priority mortgage and security interests in the collateral described therein, superior to any interest therein; such collateral is subject to no liens securing the payment of a partydebt except for those types of liens not yet delinquent referred to in the definition of "Permitted Encumbrances", (20) To the best of Borrower's knowledge, after due inquiry, the Land does not contain any hazardous wastes, hazardous substances, hazardous materials, toxic substances, or toxic pollutants, as those terms are used in the consummation of Resource Conservation and Recovery Act, the transactions contemplated hereby or therebyComprehensive Environmental Response Compensation and Liability Act, the Hazardous Materials Transportation Act, the Toxic Substance Control Act, the Clean Air Act, the Clean Water Act, or in any regulations promulgated pursuant thereto, or in any other applicable law (collectively, "Hazardous Substances"), (21) To the best of Borrower's knowledge, after due inquiry, no Event of Default has occurred and is continuing operations and no event has occurred which with the giving of any notice or the passage of the Credit Parties following the consummation time or both would constitute Event of such transactionsDefault. THE REPRESENTATIONS AND WARRANTIES OF THE BORROWER CONTAINED IN CLAUSES (11), except as otherwise expressly contemplated by this Amendment(12), (17), (18) AND (19) OF THIS SECTION 2.1 SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.

Representations and Warranties of Borrower. (a) The Recitals in this Amendment are true Borrower represents and correct in all respects.warrants that: (b) All representations 5.1 Borrower is a limited liability company duly organized and warranties validly existing under the laws of the Credit Parties State of Delaware, is qualified to do business and is in good standing in the Loan Agreement State of North Carolina, and in has the power and authority to consummate the transactions contemplated hereby, and has taken all necessary action to purchase and operate the Property and to authorize the execution, delivery and performance of this Agreement, the Note, the Deed of Trust and the other Loan Documents to which it is be executed, delivered and performed by Borrower. 5.2 Exhibit C, attached to and made a party part of this Agreement is, to the best of Borrower's knowledge, a complete and correct rent roll for the Property. To the best of Borrower's knowledge the Leases are incorporated herein currently in full by this reference force and are true and correct in all material respects as effect with no existing default on the part of the date hereoflandlord thereunder and no condition existing with respect thereto which, with the giving of notice or the passage of time, could constitute such a default. To Borrower's knowledge, there is no existing material default by any of the tenants under any of the Leases and no condition existing with respect thereto which, with the giving of notice or the passage of time, could constitute such a default, except to the extent that any such representation or warranty expressly relates to an earlier date.as otherwise indicated on Exhibit C. (c) After giving effect to this Amendment, no Default or Event of Default has occurred 5.3 This Agreement and is continuing. (d) Borrower has the power, and has been duly authorized by all requisite action, to execute and deliver this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith each Loan Document to which Borrower is a party have been duly executed and delivered by it. (e) This Amendment is the legal, a legally valid and binding obligation of Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legalBorrower, valid and binding obligations of the other Credit Parties, in each case enforceable against each of the other Credit Parties Borrower in accordance with their respective terms, except as such enforceability may be limited by any applicable subject to bankruptcy, insolvency, reorganization, moratorium, or insolvency and similar law laws affecting creditors’ rights generallyand remedies of creditors and general principles of equity. (f) The execution, delivery and performance of this Amendment 5.4 Borrower has no property other than the Property and the other documents Collateral; and agreements executed and delivered in connection herewith do not and will not (i) violate any law, rule, regulation Borrower has no debts or court order to which any of the Credit Parties is subject; (ii) conflict with or result in a breach of the certificate of formation or incorporation, bylaws, limited liability company agreement or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, liabilities other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act by or in respect of any Governmental Authority or any other Person is required the Loan and trade payables incurred in connection with the execution, delivery or performance by each operation of the Credit PartiesProperty. 5.5 Borrower, both before and after giving effect to the Loan, is not insolvent, is not engaged or about to engage in a business or transaction for which the validity property of Borrower is an unreasonably small capital, and does not intend to incur or enforceabilitybelieve that it will incur debts that will be beyond its ability to pay as such debts mature. 5.6 The Management Agreement is in full force and effect and valid and enforceable against the Property Manager, and there is no default, breach or violation existing under the Management Agreement by any party thereto and no event (other than payments due but not yet delinquent) which, with the passage of this Amendment time or with notice and the other documents or agreements executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations expiration of any of grace or cure period, would constitute a default, breach or violation by any party under the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentManagement Agreement.

Representations and Warranties of Borrower. (a) Borrower represents and warrants to the Lenders that the following statements are true, correct and complete as follows: 1. The Recitals in this Amendment are true and correct in all respects. (b) All representations and warranties contained in Section 6.01 of the Credit Parties in the Loan Financing Agreement and in the other Loan Documents to which it is a party are incorporated herein in full by this reference and are true and correct in all material respects at and as of the date hereof as though made on and as of the date hereof, except to the extent that any such representation or warranty expressly relates to an earlier date. (c) After 2. Before and after giving effect to this Amendment, no Default or Event of Default has occurred and or Default is continuing. (d) Borrower has the power3. The execution, delivery and performance of this Amendment has been duly authorized by all requisite actionnecessary action on the part of, to execute and deliver this Amendment and the other documents and agreements executed and delivered in connection herewith to which it is a party. This Amendment has been duly executed by Borrower and the other documents and agreements executed and delivered in connection herewith to which Borrower is a party have been duly executed and delivered by it. (e) This by, the Borrower and this Amendment is the a legal, valid and binding obligation of the Borrower and the other documents and agreements executed or delivered in connection herewith to which any of the other Credit Parties is a party are the legal, valid and binding obligations of the other Credit Parties, in each case enforceable against each of the other Credit Parties Borrower in accordance with their respective its terms, except as such enforceability the enforcement thereof may be limited by subject to the effect of any applicable bankruptcy, insolvency, reorganization, moratorium, moratorium or similar law laws affecting creditors’ ' rights generallygenerally and general principles of equity (regardless of whether such enforcement is sought in a proceeding in equity or at law). (f) 4. The execution, delivery and performance of this Amendment and the other documents fulfillment of and agreements executed and delivered in connection herewith do compliance with the respective terms hereof by the Borrower does not and will not (i) violate any law, rule, regulation or court order to which any of the Credit Parties is subject; (iia) conflict with or result in a breach of the certificate any term, condition or provision of formation or incorporation(b) require any authorization, bylawsconsent, limited liability company agreement approval, exemption or other organizational documents of any of the Credit Parties or any other agreement or instrument to which it is party or by which the properties of any of the Credit Parties is bound; or (iii) result in the creation or imposition of any Lien on any property of any of the Credit Parties, whether now owned or hereafter acquired, other than Liens in favor of Administrative Agent. (g) No consent or authorization of, filing with or other act action by or in respect of notice to any Governmental Authority Entity or any other Person pursuant to the Certificate of Incorporation or bylaws or memorandum and articles of association of Borrower, or any Law, statute, rule or regulation to which Borrower is subject, or any agreement to which Borrower is subject (other than those which have been obtained on or prior to the date hereof). 5. Borrower has obtained all necessary corporate, governmental, regulatory and other third party consents and approvals required in connection with the its execution, delivery or and performance by each of the Credit Parties, or the validity or enforceability, of this Amendment or the and any other documents or agreements to be executed or delivered in connection herewith to which any of the Credit Parties is a party, or the consummation of the transactions contemplated hereby or thereby, or the continuing operations of any of the Credit Parties following the consummation of such transactions, except as otherwise expressly contemplated by this AmendmentBorrower pursuant hereto.