Common use of ACKNOWLEDGEMENT AND REPRESENTATIONS Clause in Contracts

ACKNOWLEDGEMENT AND REPRESENTATIONS. To induce Lender to execute, deliver and perform this Agreement, Borrower and Guarantor acknowledge, represent and warrant to Lender (a) that the Note and other Loan Documents, as amended hereby, are in full force and effect and constitute valid and enforceable obligations of Borrower and Guarantor, as of this date, free from any defenses, set-off, claims, counterclaims or causes of action of any kind or nature whatsoever by Borrower against Lender or any of Lender’s directors, officers, employees, agents or attorneys; (b) that, after giving effect to this modification, no Default (as defined in the Security Deed) or event that with the passage of time or giving of notice would constitute a Default under the Loan Documents has occurred; (c) that all representations and warranties contained in the Loan Documents are true and correct in all material respects as of this date, all necessary action to authorize the execution and delivery of this Agreement and the other documents executed in connection with the modification of the Loan (collectively, the “Loan Modification Documents”) have been taken, and this Agreement is a modification of an existing obligation and is not a novation; (d) that this Agreement is not being made or entered into with the actual intent to hinder, delay or defraud any entity or person, and after giving effect to the indebtedness and obligations, direct and contingent, represented by the Loan Documents, as amended by this Agreement and the other Loan Modification Documents, and the consummation of the transactions contemplated thereby and hereby, and Borrower and Guarantor are able to, and anticipate that they will be able to, meet their debts as they mature and have adequate capital to conduct the business in which they are or propose to be engaged; (e) that the financial statements of Borrower and Guarantor delivered to Lender in connection herewith are true, correct and complete in all material respects, have been prepared in accordance with sound accounting principles consistently applied, fairly present the respective financial conditions of the subjects thereof as of the respective dates thereof, and to the best of Borrower’s and Guarantor’s knowledge, there has been no material change of Borrower’s or Guarantor’s financial condition from the financial condition of Borrower or Guarantor (as the case may be) indicated in such financial statements; (f) no action or proceeding, including, without limitation, a voluntary or involuntary petition in bankruptcy under any chapter of the Federal Bankruptcy Code or an attempt to take advantage of any other debtor relief law, has been instituted or threatened by or against Borrower or Guarantor; (g) the execution, delivery and performance by Borrower and Guarantor of their obligations under this Agreement and the other Loan Modification Documents will not violate or result in a breach or constitute a default under any agreements to which Borrower or Guarantor is a party, under any organizational or governing documents, or under any law, regulation or order or decree of any court or other governmental instrumentality; (h) the Note, as amended by this Agreement, is not subject to any credits, charges, claims or rights of offset or deduction of any kind or character whatsoever; and (i) this Agreement and the other Loan Modification Documents constitute the legal, valid and binding obligations of Borrower and Guarantor enforceable in accordance with their terms, free from any defenses and claims of offset.