Common use of By Lenders Clause in Contracts

By Lenders. If any Lender refuses to consent (such Lender a “Non-Consenting Lender”) to an amendment, modification, forbearance and/or waiver of or under this Agreement, and such Non-Consenting Lender’s consent is otherwise necessary to achieve Required Lender consent hereunder and but for such failure to consent, such amendment, modification, forbearance or waiver would have been effected pursuant to the terms hereof, then any one or more of the other Lenders may, but shall not be required to purchase and assume (if more than one, then on a pro rata basis), or to designate some other Person to purchase, assume and acquire the interests and obligations of the Non-Consenting Lender hereunder and under the Loan Documents and such Non-Consenting Lender shall promptly assign, sell and transfer to such other Lenders, or to any such other Person as designated by such Lenders (such 99 Lender(s) or other purchaser, an “Assignee”) all of its rights, interest and Obligations hereunder and under the Loan Documents. Upon the date of such purchase and sale, the Assignee shall pay to the Non-Consenting Lender as the purchase price for its pro rata share of the Obligations, the full amount of all Loans and other Obligations then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses) held by or owing to such Non-Consenting Lender. If the Non-Consenting Lender is a Revolving Lender or the L/C Issuer hereunder, then in addition to the foregoing payment, the Assignee shall (a) furnish cash collateral to the Non-Consenting Lender in an amount equal to (i) 105% of the un-drawn face amount of any issued and outstanding Letters of Credit provided by such Non-Consenting Lender in its capacity as L/C Issuer, and (ii) 100% of the amount of Bank Product Obligations then owing to the such Non-Consenting Lender, and (b) agree to reimburse such Non-Consenting Lender for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit or Bank Products as described above and any checks or other payments provisionally credited to the Revolving Loans or other Obligations held by such Non-Consenting Lender, and/or as to which such Non-Consenting Lender has not yet received final payment, and to otherwise agree to reimburse the Non-Consenting Lender for all expenses to the extent earned or due and payable in accordance with the Loan Documents, and (c) furnish cash collateral or agree to indemnify such Non Consenting Lender in respect of indemnification obligations of Borrowers under the Loan Documents (including reasonable attorneys’ fees and legal expenses) which are identified by the Non-Consenting Lender as being then due and owing or which have been asserted and are liquidated or are otherwise ascertainable in amount, but only to the extent not previously indemnified and reimbursed by the Borrowers and without releasing, or affecting the indemnification obligations of Borrowers under the Loan Documents or the survival of such provisions in favor of the Non-Consenting Lender, provided that, in no event will any Lenders or the Assignee have any liability for amounts described herein in excess of proceeds of Collateral received by the Lenders. The foregoing purchase price payments shall be remitted by wire transfer in federal funds to such bank account as the Non-Consenting Lender may designate in writing to the Assignee for such purpose. Interest shall be calculated to but excluding the business day on which such purchase and sale shall occur if the amounts so paid by Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account prior to 1:00 p.m., New York City time and interest shall be calculated to and including such business day if the amounts so paid by the Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account later than 1:00 p.m., New York City time. If the Non Consenting Lender also serves as Administrative Agent hereunder, then notwithstanding any transfer and sale pursuant to this Section 11.13, such Non-Consenting Lender shall continue to serve as Administrative Agent unless and until the Required Lenders shall otherwise determine in accordance with the provisions of this Agreement. Such purchase and sale shall be expressly made without representation or warranty of any kind by the Non-Consenting Lender as to the Loans so purchased or otherwise and without recourse to the Non-Consenting Lender, except that the Non-Consenting Lender shall represent and warrant to the Assignee and to each other Lender: (i) the amount of the Loans and other Obligations being purchased from it, (ii) that such Non-Consenting Lender owns its portion of the Loans and other Obligations so purchased free and clear of any Liens or encumbrances and (iii) such Non-Consenting Lender has the right to assign such Loans and other Obligations and the assignment is duly authorized by such Non-Consenting Lender. Upon any such assignment and payment and compliance with the other provisions hereunder, such Non-Consenting Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Non-Consenting Lender to indemnification hereunder shall survive. 100

By Lenders. If any Lender refuses to consent (such Lender a “Non-Consenting Lender”) to an amendmentEach of the Lenders, modificationseverally and not jointly, forbearance and/or waiver of or under this Agreement, represents and such Non-Consenting Lender’s consent is otherwise necessary to achieve Required Lender consent hereunder and but for such failure to consent, such amendment, modification, forbearance or waiver would have been effected pursuant warrants to the terms hereof, then any one or more of the other Lenders may, but shall not be required to purchase and assume (if more than one, then Borrower on a pro rata basis), or to designate some other Person to purchase, assume and acquire the interests and obligations of the Non-Consenting Lender hereunder and under the Loan Documents and such Non-Consenting Lender shall promptly assign, sell and transfer to such other Lenders, or to any such other Person as designated by such Lenders (such 99 Lender(s) or other purchaser, an “Assignee”) all of its rights, interest and Obligations hereunder and under the Loan Documents. Upon the date of such purchase hereof and sale, on the Assignee shall pay to the Non-Consenting Lender Closing Date as the purchase price for its pro rata share of the Obligations, the full amount of all Loans and other Obligations then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses) held by or owing to such Non-Consenting Lender. If the Non-Consenting Lender is a Revolving Lender or the L/C Issuer hereunder, then in addition to the foregoing payment, the Assignee shall follows: (a) furnish cash collateral it has the full power and authority to execute this Agreement and to consummate the Non-Consenting Lender transactions contemplated hereby to be consummated by the Lender. This Agreement has been duly executed by the Lender, and this Agreement constitutes the valid and binding obligation of the Lender, enforceable against it in an amount equal accordance with its respective terms, subject to (i) 105% laws of general application relating to bankruptcy, insolvency and the un-drawn face amount relief of any issued and outstanding Letters of Credit provided by such Non-Consenting Lender in its capacity as L/C Issuerdebtors, and (ii) 100% rules of the amount of Bank Product Obligations then owing to the such Non-Consenting Lenderlaw governing specific performance, injunctive relief and other equitable remedies; (b) agree to reimburse if a corporation, the Lender is duly organized and properly registered in the jurisdiction of its organization and the execution, delivery and performance of this Agreement will not violate any provision of the corporate documents of such Non-Consenting Lender for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit or Bank Products as described above and any checks or other payments provisionally credited to the Revolving Loans or other Obligations held by such Non-Consenting Lender, and/or as to which such Non-Consenting Lender has not yet received final payment, and to otherwise agree to reimburse the Non-Consenting Lender for all expenses to the extent earned or due and payable in accordance with the Loan Documents, and ; (c) furnish cash collateral or agree to indemnify such Non Consenting The Lender in respect has been advised that this Agreement, the shares issuable upon conversion of indemnification obligations of Borrowers the outstanding Loan Amount have not been registered under the Loan Documents U.S. Securities Act of 1933 (including reasonable attorneys’ fees the “Securities Act”) or any securities laws, and legal expensestherefore cannot be resold unless they are registered under the Securities Act and applicable state securities laws or an exemption from such registration is available; (d) which are identified The Lender has knowledge and experience in financial and business matters, is capable of evaluating the merits and risks of the transactions evidenced by this Agreement and can bear the Non-Consenting economic consequences of such investment and/or loan for an indefinite period of time; (e) The Lender is an “accredited investor” as being then due and owing or which have been asserted and are liquidated or are otherwise ascertainable defined in amountRegulation D promulgated under the Securities Act; (f) The Lender is purchasing the securities under this Agreement only for investment, but only to for the extent not previously indemnified and reimbursed by the Borrowers Lender’s own account, and without releasingany present intention to sell or distribute such securities; and (g) The Lender will not sell, pledge or otherwise dispose of any of the securities issued or to be issued hereunder in violation of the Securities Act, the Securities Exchange Act of 1934, or affecting the indemnification obligations of Borrowers under the Loan Documents or the survival of such provisions in favor rules and regulations of the Non-Consenting Lender, provided that, in no event will any Lenders or the Assignee have any liability for amounts described herein in excess of proceeds of Collateral received by the Lenders. The foregoing purchase price payments shall be remitted by wire transfer in federal funds to such bank account as the Non-Consenting Lender may designate in writing to the Assignee for such purpose. Interest shall be calculated to but excluding the business day on which such purchase and sale shall occur if the amounts so paid by Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account prior to 1:00 p.m., New York City time and interest shall be calculated to and including such business day if the amounts so paid by the Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account later than 1:00 p.m., New York City time. If the Non Consenting Lender also serves as Administrative Agent hereunder, then notwithstanding any transfer and sale pursuant to this Section 11.13, such Non-Consenting Lender shall continue to serve as Administrative Agent unless and until the Required Lenders shall otherwise determine in accordance with the provisions of this Agreement. Such purchase and sale shall be expressly made without representation or warranty of any kind by the Non-Consenting Lender as to the Loans so purchased or otherwise and without recourse to the Non-Consenting Lender, except that the Non-Consenting Lender shall represent and warrant to the Assignee and to each other Lender: (i) the amount SEC promulgated under either of the Loans and other Obligations being purchased from it, (ii) that such Non-Consenting Lender owns its portion of the Loans and other Obligations so purchased free and clear of any Liens or encumbrances and (iii) such Non-Consenting Lender has the right to assign such Loans and other Obligations and the assignment is duly authorized by such Non-Consenting Lender. Upon any such assignment and payment and compliance with the other provisions hereunder, such Non-Consenting Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Non-Consenting Lender to indemnification hereunder shall survive. 100foregoing.

By Lenders. If any Lender refuses to consent (such Lender a “Non-Consenting Lender”) to an amendment, modification, forbearance and/or waiver of or under this Agreement, and such Non-Consenting Lender’s consent is otherwise necessary to achieve Required Lender consent hereunder and but for such failure to consent, such amendment, modification, forbearance or waiver would have been effected pursuant to the terms hereof, then any one or more of the other Lenders may, but shall not be required to purchase and assume (if more than one, then on a pro rata basis), or to designate some other Person to purchase, assume and acquire the interests and obligations of the Non-Consenting Lender hereunder and under the Loan Documents and such Non-Consenting Lender shall promptly assign, sell and transfer to such other Lenders, or to any such other Person as designated by such Lenders (such 99 Lender(s) or other purchaser, an “Assignee”) all of its rights, interest and Obligations hereunder and under the Loan Documents. Upon the date of such purchase and sale, the Assignee shall pay to the Non-Consenting Lender as the purchase price for its pro rata share of the Obligations, the full amount of all Loans and other Obligations then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses) held by or owing to such Non-Consenting Lender. If the Non-Consenting Lender is a Revolving Lender or the L/C Issuer hereunder, then in addition to the foregoing payment, the Assignee shall (a) furnish cash collateral to the Non-Consenting Lender in an amount equal to (i) 105% of the un-drawn face amount of any issued and outstanding Letters of Credit provided by such Non-Consenting Lender in its capacity as L/C Issuer, and (ii) 100% of the amount of Bank Product Obligations then owing to the such Non-Consenting Lender, and (b) agree to reimburse such Non-Consenting Lender for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit or Bank Products as described above and any checks or other payments provisionally credited to the Revolving Loans or other Obligations held by such Non-Consenting Lender, and/or as to which such Non-Consenting Lender has not yet received final payment, and to otherwise agree to reimburse the Non-Consenting Lender for all expenses to the extent earned or due and payable in accordance with the Loan Documents, and (c) furnish cash collateral or agree to indemnify such Non Consenting Lender in respect of indemnification obligations of Borrowers under the Loan Documents (including reasonable attorneys’ fees and legal expenses) which are identified by the Non-Consenting Lender as being then due and owing or which have been asserted and are liquidated or are otherwise ascertainable in amount, but only to the extent not previously indemnified and reimbursed by the Borrowers and without releasing, or affecting the indemnification obligations of Borrowers under the Loan Documents or the survival of such provisions in favor of the Non-Consenting Lender, provided that, in no event will any Lenders or the Assignee have any liability for amounts described herein in excess of proceeds of Collateral received by the Lenders. The foregoing purchase price payments shall be remitted by wire transfer in federal funds to such bank account as the Non-Consenting Lender may designate in writing to the Assignee for such purpose. Interest shall be calculated to but excluding the business day on which such purchase and sale shall occur if the amounts so paid by Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account prior to 1:00 p.m., New York City time and interest shall be calculated to and including such business day if the amounts so paid by the Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account later than 1:00 p.m., New York City time. If the Non Consenting Lender also serves as Administrative Agent hereunder, then notwithstanding any transfer and sale pursuant to this Section 11.13, such Non-Consenting Lender shall continue to serve as Administrative Agent unless and until the Required Lenders shall otherwise determine in accordance with the provisions of this Agreement. Such purchase and sale shall be expressly made without representation or warranty of any kind by the Non-Consenting Lender as to the Loans so purchased or otherwise and without recourse to the Non-Consenting Lender, except that the Non-Consenting Lender shall represent and warrant to the Assignee and to each other Lender: (i) the amount of the Loans and other Obligations being purchased from it, (ii) that such Non-Consenting Lender owns its portion of the Loans and other Obligations so purchased free and clear of any Liens or encumbrances and (iii) such Non-Consenting Lender has the right to assign such Loans and other Obligations and the assignment is duly authorized by such Non-Consenting Lender. Upon any such assignment and payment and compliance with the other provisions hereunder, such Non-Consenting Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Non-Consenting Lender to indemnification hereunder shall survive. 100.

By Lenders. If any Lender refuses to consent (such Lender a “"Non-Consenting Lender”") to an amendment, modification, forbearance and/or waiver of or under this Agreement, and such Non-Consenting Lender’s 's consent is otherwise necessary to achieve Required Lender consent hereunder and but for such failure to consent, such amendment, modification, forbearance or waiver would have been effected pursuant to the terms hereof, then any one or more of the other Lenders may, but shall not be required to purchase and assume (if more than one, then on a pro rata basis), or to designate some other Person to purchase, assume and acquire the interests and obligations of the Non-Consenting Lender hereunder and under the Loan Documents and such Non-Consenting Lender shall promptly assign, sell and transfer to such other Lenders, or to any such other Person as designated by such Lenders (such 99 Lender(s) or other purchaser, an “"Assignee”") all of its rights, interest and Obligations hereunder and under the Loan Documents. Upon the date of such purchase and sale, the Assignee shall pay to the Non-Consenting Lender as the purchase price for its pro rata share of the Obligations, the full amount of all Loans and other Obligations then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ ' fees and legal expenses) held by or owing to such Non-Consenting Lender. If the Non-Consenting Lender is a Revolving Lender or the L/C Issuer hereunder, then in addition to the foregoing payment, the Assignee shall (a) furnish cash collateral to the Non-Consenting Lender in an amount equal to (i) 105% of the un-drawn face amount of any issued and outstanding Letters of Credit provided by such Non-Consenting Lender in its capacity as L/C Issuer, and (ii) 100% of the amount of Bank Product Obligations then owing to the such Non-Consenting Lender, and (b) agree to reimburse such Non-Consenting Lender for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit or Bank Products as described above and any checks or other payments provisionally credited to the Revolving Loans or other Obligations held by such Non-Consenting Lender, and/or as to which such Non-Consenting Lender has not yet received final payment, and to otherwise agree to reimburse the Non-Consenting Lender for all expenses to the extent earned or due and payable in accordance with the Loan Documents, and (c) furnish cash collateral or agree to indemnify such Non Consenting Lender in respect of indemnification obligations of Borrowers under the Loan Documents (including reasonable attorneys’ ' fees and legal expenses) which are identified by the Non-Consenting Lender as being then due and owing or which have been asserted and are liquidated or are otherwise ascertainable in amount, but only to the extent not previously indemnified and reimbursed by the Borrowers and without releasing, or affecting the indemnification obligations of Borrowers under the Loan Documents or the survival of such provisions in favor of the Non-Consenting Lender, provided that, in no event will any Lenders or the Assignee have any liability for amounts described herein in excess of proceeds of Collateral received by the Lenders. The foregoing purchase price payments shall be remitted by wire transfer in federal funds to such bank account as the Non-Consenting Lender may designate in writing to the Assignee for such purpose. Interest shall be calculated to but excluding the business day on which such purchase and sale shall occur if the amounts so paid by Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account prior to 1:00 p.m., New York City time and interest shall be calculated to and including such business day if the amounts so paid by the Assignee to the bank account designated by the Non-Consenting Lender are received in such bank account later than 1:00 p.m., New York City time. If the Non Consenting Lender also serves as Administrative Agent hereunder, then notwithstanding any transfer and sale pursuant to this Section 11.13, such Non-Consenting Lender shall continue to serve as Administrative Agent unless and until the Required Lenders shall otherwise determine in accordance with the provisions of this Agreement. Such purchase and sale shall be expressly made without representation or warranty of any kind by the Non-Consenting Lender as to the Loans so purchased or otherwise and without recourse to the Non-Consenting Lender, except that the Non-Consenting Lender shall represent and warrant to the Assignee and to each other Lender: (i) the amount of the Loans and other Obligations being purchased from it, (ii) that such Non-Consenting Lender owns its portion of the Loans and other Obligations so purchased free and clear of any Liens or encumbrances and (iii) such Non-Consenting Lender has the right to assign such Loans and other Obligations and the assignment is duly authorized by such Non-Consenting Lender. Upon any such assignment and payment and compliance with the other provisions hereunder, such Non-Consenting Lender shall no longer constitute a “"Lender” " for purposes hereof; provided, any rights of such Non-Consenting Lender to indemnification hereunder shall survive. 100.