Common use of Independent Nature of Lenders’ Obligations and Rights Clause in Contracts

Independent Nature of Lenders’ Obligations and Rights. The obligations of each Lender under the Transaction Agreements are several and not joint with the obligations of any other Lender, and no Lender shall be responsible in any way for the performance of the obligations of any Other Lender under any one or more of the Transaction Agreements. The decision of each Lender or Other Lender to purchase Securities pursuant to the Transaction Agreements has been made by such Lender independently of any Other Lender. Nothing contained herein or in any Transaction Agreement, and no action taken by any Lender pursuant thereto, shall be deemed to constitute any two or more Lenders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Lenders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Agreements. Each Lender acknowledges that no Other Lender has acted as agent for such Lender in connection with making its investment hereunder and that no Lender will be acting as agent of such Other Lender in connection with monitoring its investment in the Securities or enforcing its rights under the Transaction Agreements. Each Lender shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement or out of the other Transaction Agreements, and it shall not be necessary for any Other Lender to be joined as an additional party in any proceeding for such purpose. The Company acknowledges that each of the Lenders has been provided with the same Transaction Agreements for the purpose of closing a transaction with multiple Lenders and not because it was required or requested to do so by any Lender.

Independent Nature of Lenders’ Obligations and Rights. The obligations of each Lender under the Transaction Agreements are several and not joint with the obligations of any other Lender, and no Lender shall be responsible in any way for the performance of the obligations of any Other Lender under any one or more of the Transaction Agreements. The decision of each Lender or Other Lender to purchase Purchased Securities pursuant to the Transaction Agreements has been made by such Lender independently of any Other Lender. Nothing contained herein or in any Transaction Agreement, and no action taken by any Lender pursuant thereto, shall be deemed to constitute any two or more Lenders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Lenders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Agreements. Each Lender acknowledges that no Other Lender has acted as agent for such Lender in connection with making its investment hereunder and that no Lender will be acting as agent of such Other Lender in connection with monitoring its investment in the Purchased Securities or enforcing its rights under the Transaction Agreements. Each Lender 12/09/04 shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement or out of the other Transaction Agreements, and it shall not be necessary for any Other Lender to be joined as an additional party in any proceeding for such purpose. The Company acknowledges that each of the Lenders has been provided with the same Transaction Agreements for the purpose of closing a transaction with multiple Lenders and not because it was required or requested to do so by any Lender.

Independent Nature of Lenders’ Obligations and Rights. The obligations of each Lender under the Transaction Agreements any Facility Document are several and not joint with the obligations of any other Lender, and no Lender shall be responsible in any way for the performance or non-performance of the obligations of any Other other Lender under any one or more of the Transaction Agreements. The decision of each Lender or Other Lender to purchase Securities pursuant to the Transaction Agreements has been made by such Lender independently of any Other LenderFacility Document. Nothing contained herein or in any Transaction Agreementother Facility Document, and no action taken by any Lender pursuant hereto or thereto, shall be deemed to constitute any two or more the Lenders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Lenders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction Agreements. Each Lender acknowledges that no Other Lender has acted as agent for such Lender in connection with making its investment hereunder and that no Lender will be acting as agent of such Other Lender in connection with monitoring its investment in the Securities or enforcing its rights under the Transaction AgreementsFacility Documents. Each Lender shall be entitled to independently protect and enforce its rights, including including, without limitation limitation, the rights arising out of this Agreement or out of the other Transaction AgreementsFacility Documents, and it shall not be necessary for any Other other Lender to be joined as an additional party in any proceeding for such purpose. The Company acknowledges that each Each Lender has been represented by its own separate legal counsel in its review and negotiation of the Facility Documents. For reasons of administrative convenience only, each Lender and its respective counsel have chosen to communicate with Borrower through Grushko & Mxxxxxx, P.C. Borrower has elected to provide all Lenders has been provided with the same Transaction Agreements terms and Facility Documents for the purpose convenience of closing a transaction with multiple Lenders Borrower and not because it was required or requested to do so by any of the Lenders. It is expressly understood and agreed that each provision contained in this Agreement and in each other Facility Document is between Borrower and a Lender, solely, and not between Borrower and the Lenders collectively and not between and among the Lenders. In the event circumstances do not enable or allow Borrower to fulfill its obligation in full to all Lenders, then Borrower shall fulfill its obligations to multiple Lenders having the same rights, pro rata to each such affected Lender’s Subscription Amount actually delivered to Borrower.

Independent Nature of Lenders’ Obligations and Rights. The obligations of each Lender under the any Transaction Agreements Document are several and not joint with the obligations of any other Lender, and no Lender shall be responsible in any way for the performance of the obligations of any Other other Lender under any one or more of the Transaction AgreementsDocument. The decision of each Lender or Other Lender to purchase Securities pursuant to the Transaction Agreements Documents has been made by such Lender independently of any Other other Lender. Nothing contained herein or in any Transaction AgreementDocument, and no action taken by any Lender pursuant thereto, shall be deemed to constitute any two or more the Lenders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Lenders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated by the Transaction AgreementsDocuments. Each Except as set forth in Section 4.11, each Lender acknowledges that no Other other Lender has acted as agent for such Lender in connection with making its investment hereunder and that no Lender will be acting as agent of such Other Lender in connection with monitoring its investment in the Securities or enforcing its rights under the Transaction AgreementsDocuments. Each Lender shall be entitled to independently protect and enforce its rights, including without limitation the rights arising out of this Agreement or out of the other Transaction AgreementsDocuments, and it shall not be necessary for any Other other Lender to be joined as an additional party in any proceeding for such purpose. The Company acknowledges that each of the Lenders has been provided with the same Transaction Agreements Documents for the purpose of closing a transaction with multiple Lenders and not because it was required or requested to do so by any Lender.

Independent Nature of Lenders’ Obligations and Rights. The obligations of each a Lender under this Agreement and the other Transaction Agreements Documents are several and not joint with the obligations of any other LenderLenders, and no each Lender shall not be responsible in any way for the performance of the obligations of any Other Lender other Lenders under any one this Agreement or more of the other Transaction AgreementsDocuments. The investment and/or credit decision of each Lender or Other Lender to purchase Securities pursuant to enter into this Agreement and the other Transaction Agreements Documents has been made by such Lender independently of any Other Lenderother Lenders and independently of any information, materials, statements or opinions as to the business, affairs, operations, assets, properties, liabilities, results of operation, condition (financial or otherwise) or prospects of the Company or of any subsidiary which have been made or given by any other Lenders or by any agent or employee of any other Lenders, and each Lender and its agents and employees shall have no liability to any other Lenders (or any other person) relating to or arising from any such information, materials, statements or opinions. Each Lender acknowledges that it has the sophistication and ability to look out for its own interest and has independently made its own investment and/or credit decision to enter into this Agreement and the other Transaction Documents based upon such evaluation and information as it has deemed appropriate. Nothing contained herein in this Agreement or in any the other Transaction AgreementDocuments, and no action taken by any Lender pursuant thereto, shall be deemed to constitute any two or more the Lenders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Lenders are in any way acting in concert or as a group with respect to such the obligations contained in or the transactions contemplated by this Agreement or the other Transaction AgreementsDocuments. Each Lender acknowledges that no Other Lender has other Lenders have acted as agent for such Lender in connection with making its investment hereunder entering into this Agreement and the other Transaction Documents and that no Lender other Lenders will be acting as agent of such Other Lender in connection with monitoring its investment in the Securities or enforcing its rights under the Transaction Agreementsmaking any future investment and/or credit decisions. Each Lender shall be entitled to independently protect and enforce its rights, including without limitation with limitation, the rights arising out of this Agreement or out of the other Transaction AgreementsDocuments, and it shall not be necessary for any Other Lender other Lenders to be joined as an additional party in any proceeding for such purpose. The Company acknowledges that each of , except as otherwise provided in the Lenders has been provided with Intercreditor Agreement or the same Transaction Agreements for the purpose of closing a transaction with multiple Lenders and not because it was required or requested to do so by any LenderJoinder Agreement.