Common use of Cashless Exercise of Warrants Clause in Contracts

Cashless Exercise of Warrants. At any time following the date hereof, the warrant holder, whether SVC or otherwise, in lieu of any cash payment required hereunder for the warrants, shall have the rights to exercise the warrants in whole or in part by surrendering the warrants in exchange for the number of shares of the Company's common stock equal to (x) the number of shares as to which the warrants are being exercised multiplied by (y) a fraction, the numerator of which is the Market Price (as defined below) of the common stock less the exercise price of the warrants being exercised, and the denominator of which is such Market Price. The term "Market Price" means the average of the closing sale price per share of the common stock on the principal stock exchange or market on which the common stock is then quoted or traded on each of the ten (10) consecutive trading days preceding the date on which written notice of election to exercise the warrants has been given to the Company (a "cashless exercise"). If the warrant holder opts for a cashless exercise of the warrants, no other consideration shall be paid to the Company, other than surrendering the warrant itself, nor will there be paid any commission or other remuneration to any other person or entity by the warrant holder. In the event that the warrant holder is not permitted to "tack" the holding period of the warrants to the holding period of the common stock received upon the cashless exercise for purposes of satisfaction of the holding period requirements of Rules 144(d)(3)(ii) and 144(k) under the Securities Act of 1933, as amended, for whatever reason and there is no presently filed registration statement effective as to the shares received or to be received through the cashless exercise of the warrants granted herein, the Company shall, upon receipt of the written request of the warrant holder, promptly prepare and file a registration statement with the U.S. Securities and Exchange Commission with respect to all of the shares underlying the warrants granted herein; provided, however, that the provisions of this paragraph relating to a demand for registration by the warrant holder shall not be effective at any time prior to December 15, 1999. In addition, Affinity shall reimburse SVC for all actual expenses incurred by SVC for services rendered on behalf of Affinity and, at the request of Affinity, upon submission of appropriate invoices or receipts therefor.

Cashless Exercise of Warrants. At any (1) If, at the time following the date hereof, the warrant holder, whether SVC or otherwise, in lieu of exercise of any cash payment required hereunder Warrant in accordance with this Indenture, there is no effective Registration Statement under the U.S. Securities Act, or the prospectus contained therein is not available for the warrantsissuance of the Common Shares to the Warrantholder under the U.S. Securities Act, shall have then the rights to exercise the warrants Warrants may only be exercised, in whole or in part part, at such time by surrendering means of a “cashless exercise” in which the warrants Warrantholder shall be entitled to receive a number of Common Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where: A = the last VWAP immediately preceding the time of delivery of the Exercise Form giving rise to the applicable “cashless exercise” (to clarify, the “last VWAP” will be the last Current Market Price as calculated over an entire Trading Day such that, in exchange for the event that a Warrant is exercised at a time when the Trading Market is open, the prior Trading Day’s VWAP shall be used in this calculation); B = the Exercise Price of the Warrant, as adjusted hereunder (if any); and X = the number of shares Common Shares that would be issuable upon exercise of the Company's common stock equal Warrant in accordance with the terms of such Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. (2) If Common Shares are issued pursuant to such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the U.S. Securities Act, such Common Shares shall take on the registered characteristics of the Warrants being exercised. The Corporation agrees not to take any position contrary to this Section 3.3(2). (x3) Upon receipt of a duly completed Exercise Notice, the Warrant Agent will notify the Corporation, which will calculate and provide to the Warrant Agent the number of shares as Common Shares to which be allotted to the warrants are being exercised multiplied by Warrantholder. (y4) Any Warrantholder that holds Warrants registered in the name of CDS Clearing and Depository Services Inc. (“CDS”) or Depository Trust Company, or a fraction, successor depository within the numerator of which is the Market Price United States (as defined below) of the common stock less the exercise price of the warrants being exercised“DTC”), and the denominator of which is such Market Price. The term "Market Price" means the average of the closing sale price per share of the common stock on the principal stock exchange or market on which the common stock is then quoted or traded on each of the ten (10) consecutive trading days preceding the date on which written notice of election that wishes to exercise the warrants has been given to the Company (a "cashless exercise"). If the warrant holder opts for such Warrants under this section by means of a cashless exercise of must first withdraw their position from CDS or DTC, as applicable, arrange to have the warrants, no other consideration shall be paid applicable Warrant certificated and surrender such warrant certificate to the CompanyWarrant Agent for exercise by means of a “cashless exercise”. (5) For the avoidance of doubt, other than surrendering the warrant itself, nor will there be paid any commission a Warrantholder may only exercise his or other remuneration to any other person or entity her warrants by the warrant holder. In the event that the warrant holder is not permitted to "tack" the holding period means of the warrants to the holding period of the common stock received upon the “cashless exercise for purposes of satisfaction of the holding period requirements of Rules 144(d)(3)(ii) and 144(k) under the Securities Act of 1933, as amended, for whatever reason and exercise” if there is no presently filed effective registration statement effective as to the shares received or to be received through the cashless exercise of the warrants granted herein, the Company shall, upon receipt of the written request of the warrant holder, promptly prepare and file a registration statement with under the U.S. Securities Act registering, or the prospectus contained therein is not available for, the offer and Exchange Commission with respect to all issuance of the shares underlying Common Shares to the warrants granted herein; providedWarrantholder upon the exercise of his or her Warrants. If there is an effective registration statement under the U.S. Securities Act registering, howeveror the prospectus contained therein is available for, that the provisions offer and issuance of this paragraph relating the Common Shares to a demand for registration by the warrant holder shall not be effective at any time prior to December 15Warrantholder upon the exercise of his or her Warrants, 1999. In addition, Affinity shall reimburse SVC for all actual expenses incurred by SVC for services rendered on behalf of Affinity and, at the request of Affinity, upon submission of appropriate invoices such Warrantholder may only exercise his or receipts thereforher Warrants in accordance with Section 3.2.

Cashless Exercise of Warrants. At any (1) If, at the time following the date hereof, the warrant holder, whether SVC or otherwise, in lieu of exercise of any cash payment required hereunder Warrant in accordance with this Indenture, there is no effective Registration Statement under the U.S. Securities Act, or the prospectus contained therein is not available for the warrantsoffer and sale of the Common Shares to the Warrantholder under the U.S. Securities Act, shall have then the rights to exercise the warrants Warrants may only be exercised, in whole or in part part, at such time by surrendering means of a “cashless exercise” in which the warrants Warrantholder shall be entitled to receive a number of Common Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where: A = the last VWAP immediately preceding the time of delivery of the Exercise Form giving rise to the applicable “cashless exercise” (to clarify, the “last VWAP” will be the last Current Market Price as calculated over an entire Trading Day such that, in exchange for the event that a Warrant is exercised at a time when the Trading Market is open, the prior Trading Day’s VWAP shall be used in this calculation); B = the Exercise Price of the Warrant, as adjusted hereunder (if any); and X = the number of shares Common Shares that would be issuable upon exercise of the Company's common stock equal Warrant in accordance with the terms of such Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. (2) If Common Shares are issued pursuant to such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the U.S. Securities Act, such Common Shares shall take on the registered characteristics of the Warrants being exercised. The Corporation agrees not to take any position contrary to this Section 3.3(2). (x3) Upon receipt of a duly completed Subscription Form that specifies a cashless exercise, the Warrant Agent will notify the Corporation, which will calculate and provide in writing to the Warrant Agent the number of shares as Common Shares to which be allotted to the warrants are being exercised multiplied by Warrantholder. (y4) a fraction, Any Warrantholder that holds Warrants registered in the numerator name of which is the Market Price (as defined below) of the common stock less the exercise price of the warrants being exercised, CDS and the denominator of which is such Market Price. The term "Market Price" means the average of the closing sale price per share of the common stock on the principal stock exchange or market on which the common stock is then quoted or traded on each of the ten (10) consecutive trading days preceding the date on which written notice of election that wishes to exercise the warrants has been given to the Company (a "cashless exercise"). If the warrant holder opts for such Warrants under this section by means of a cashless exercise of must first withdraw their position from CDS, arrange to have the warrants, no other consideration shall be paid applicable Warrant certificated and surrender such warrant certificate to the CompanyWarrant Agent for exercise by means of a “cashless exercise”. For the avoidance of doubt, other than surrendering the warrant itself, nor will there be paid any commission a Warrantholder may only exercise his or other remuneration to any other person or entity her warrants by the warrant holder. In the event that the warrant holder is not permitted to "tack" the holding period means of the warrants to the holding period of the common stock received upon the “cashless exercise for purposes of satisfaction of the holding period requirements of Rules 144(d)(3)(ii) and 144(k) under the Securities Act of 1933, as amended, for whatever reason and exercise” if there is no presently filed effective registration statement effective as to the shares received or to be received through the cashless exercise of the warrants granted herein, the Company shall, upon receipt of the written request of the warrant holder, promptly prepare and file a registration statement with under the U.S. Securities Act registering, or the prospectus contained therein is not available for, the offer and Exchange Commission with respect to all issuance of the shares underlying Common Shares to the warrants granted herein; providedWarrantholder upon the exercise of his or her Warrants. If there is an effective registration statement under the U.S. Securities Act registering, howeveror the prospectus contained therein is available for, that the provisions offer and issuance of this paragraph relating the Common Shares to a demand for registration by the warrant holder Warrantholder upon the exercise of his or her Warrants, such Warrantholder may only exercise his or her Warrants in accordance with Section 3.2. Furthermore, the Warrant Agent shall not be effective at held liable for any time prior to December 15, 1999. In addition, Affinity shall reimburse SVC for all actual expenses incurred exercise carried out by SVC for services rendered on behalf a Warrantholder that should have been carried out by means of Affinity and, at the request of Affinity, upon submission of appropriate invoices or receipts therefora “cashless exercise” as described herein.

Cashless Exercise of Warrants. At any (a) If, at the time following the date hereof, the warrant holder, whether SVC or otherwise, in lieu of exercise of any cash payment required hereunder Warrant in accordance with this Indenture, there is no effective Registration Statement under the U.S. Securities Act, or the prospectus contained therein is not available for the warrantsoffer and sale of the Common Shares to the Warrantholder under the U.S Securities Act, shall have then the rights to exercise the warrants Warrants may only be exercised, in whole or in part part, at such time by surrendering means of a "cashless exercise" in which the warrants Warrantholder shall be entitled to receive a number of Common Shares equal to the quotient obtained by dividing [(A-B) (X)] by (A), where: A = the last VWAP immediately preceding the time of delivery of the Exercise Form giving rise to the applicable "cashless exercise" (to clarify, the "last VWAP" will be the last Current Market Price as calculated over an entire Trading Day such that, in exchange for the event that a Warrant is exercised at a time when the Trading Market is open, the prior Trading Day's VWAP shall be used in this calculation); B = the Exercise Price of the Warrant, as adjusted hereunder (if any); and X = the number of shares Common Shares that would be issuable upon exercise of the Company's common stock equal Warrant in accordance with the terms of such Warrant if such exercise were by means of a cash exercise rather than a cashless exercise. (b) If Common Shares are issued pursuant to such a cashless exercise, the parties acknowledge and agree that in accordance with Section 3(a)(9) of the U.S. Securities Act, such Common Shares shall take on the registered characteristics of the Warrants being exercised. The Corporation agrees not to take any position contrary to this Section 3.3(b). (xc) Upon receipt of a duly completed Exercise Notice that specifies a cashless exercise, the Warrant Agent will notify the Corporation, which will calculate and provide in writing to the Warrant Agent the number of shares as Common Shares to which be allotted to the warrants are being exercised multiplied by Warrantholder. (yd) a fraction, Any Warrantholder that holds Warrants registered in the numerator name of which is the Market Price (as defined below) of the common stock less the exercise price of the warrants being exercised, CDS and the denominator of which is such Market Price. The term "Market Price" means the average of the closing sale price per share of the common stock on the principal stock exchange or market on which the common stock is then quoted or traded on each of the ten (10) consecutive trading days preceding the date on which written notice of election that wishes to exercise such Warrants under this section by means of a cashless exercise must first withdraw their position from CDS, arrange to have the warrants has been given applicable Warrant certificated and surrender such warrant certificate to the Company (Warrant Agent for exercise by means of a "cashless exercise"). If For the warrant holder opts for avoidance of doubt, a Warrantholder may only exercise his or her warrants by means of "cashless exercise of the warrants, no other consideration shall be paid to the Company, other than surrendering the warrant itself, nor will there be paid any commission or other remuneration to any other person or entity by the warrant holder. In the event that the warrant holder is not permitted to "tackexercise" the holding period of the warrants to the holding period of the common stock received upon the cashless exercise for purposes of satisfaction of the holding period requirements of Rules 144(d)(3)(ii) and 144(k) under the Securities Act of 1933, as amended, for whatever reason and if there is no presently filed effective Registration Statement registering, or the prospectus contained therein is not available for, the offer and issuance of the Common Shares to the Warrantholder upon the exercise of his or her Warrants. If there is an effective registration statement effective as to the shares received or to be received through the cashless exercise of the warrants granted herein, the Company shall, upon receipt of the written request of the warrant holder, promptly prepare and file a registration statement with under the U.S. Securities Act registering, or the prospectus contained therein is available for, the offer and Exchange Commission with respect to all issuance of the shares underlying Common Shares to the warrants granted herein; providedWarrantholder upon the exercise of his or her Warrants, howeversuch Warrantholder may only exercise his or her Warrants in accordance with Section 3.2. Furthermore, that the provisions of this paragraph relating to a demand for registration by the warrant holder Warrant Agent shall not be effective at held liable for any time prior to December 15, 1999. In addition, Affinity shall reimburse SVC for all actual expenses incurred exercise carried out by SVC for services rendered on behalf a Warrantholder that should have been carried out by means of Affinity and, at the request of Affinity, upon submission of appropriate invoices or receipts therefora "cashless exercise" as described herein.