Common use of Provided Clause in Contracts

Provided. (i) the Licensee has paid the Licensee Fee payments required throughout the Term as and when due and punctually observed and performed each of the terms, covenants and conditions to be observed and performed by it in accordance with the terms of this License Agreement and the Licensee is not in default under this Agreement and has not repeatedly been in default hereunder; (ii) the Licensee has delivered a written notice to Licensor electing to extend the Term not later than six (6) months prior to the end of the initial Term; and (iii) the Licensor has negotiated and executed an extension and/or renewal agreement for the Lease with the Landlord for a term to expire no earlier than the last day of the Extension Term (as defined below) on terms acceptable to the Licensor in its sole and absolute discretion prior to May 30, 2011 (the “Renewal Agreement”). Notwithstanding the foregoing or anything else contained herein, the Licensee acknowledges and agrees that the Licensor is under no obligation to extend and/or renew the term of its Lease beyond its scheduled expiration date of July 31, 2014 and/or to enter into the Renewal Agreement. If the Licensor does extend or renew the term of the Lease, the Licensor may do so on such terms and conditions (including, without the limitation, the length of the renewal and/or extension) which are acceptable to the Licensor in its sole and absolute discretion and the Licensor is under no obligation to extend and/or renew the Lease. Subject to the foregoing, if the Renewal Agreement is executed, the Licensor shall apprise the Licensee that the Renewal Agreement was executed, then, the Licensor will then grant to the Licensee the one-time, personal and non- assignable right to extend the Term for a period of two (2) years commencing on October 1, 2011 (the “Extension Term”) whereby all of the terms and conditions that pertained during the initial Term will apply during the Extension Term, except: (i) there shall be no further right to extend and/or renew; (ii) there shall be no Fixturing Period and the Licensee shall accept the Licensed Location in an “as-is-where-is condition”; and (iii) the License Fee for the Extension Term which shall be agreed upon between the Licensor and the Licensee at least three (3) months prior to the commencement of the Extension Term based upon a rate equal to the fair market value rate for similar premises having a similar size and similar location in the vicinity, but in no instance shall the License Fee be less than what the Licensor paid during the last year of the Term.

Provided. (i) Such supplemental agreement shall not become effective unless there shall be filed with the Licensee has paid Trustee the Licensee Fee payments required throughout the Term as and when due and punctually observed and performed each written consents of the termsOwners of at least sixty percent (60%) in aggregate principal amount of the Certificates then Outstanding (exclusive of Certificates disqualified as provided in Section 9.03 hereof) and a notice shall have been mailed as hereinafter in this Section 9.02 provided. Each such consent shall be effective only if accompanied by proof of ownership of the Certificates for which such consent is given, covenants which proof shall be such as is permitted by Section 2.11 hereof. Any such consent shall be binding upon the Owner of the Certificate giving such consent and conditions to be observed and performed on any subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such consent is revoked in writing by it in accordance the Owner giving such consent or a subsequent Owner by filing such revocation with the terms of this License Agreement and the Licensee is not in default under this Agreement and has not repeatedly been in default hereunder; (ii) the Licensee has delivered a written notice to Licensor electing to extend the Term not later than six (6) months Trustee prior to the end date when the notice hereinafter in the following paragraph of this Section 9.02 provided for has been mailed. After the Owners of the initial Term; and (iii) required percentage of Certificates shall have filed their consents to such supplemental agreement, the Licensor has negotiated and executed an extension and/or renewal agreement Trustee shall mail by first class mail, postage prepaid, a notice at the expense of the City, to the Owners of the Certificates in the manner hereinbefore provided in this Section 10.02 for the Lease mailing of such supplemental agreement of the notice of adoption thereof, stating in substance that such supplemental agreement has been consented to by the Owners of the required percentage of Certificates and will be effective as provided in this Section 10.02 (but failure to mail copies of said notice shall not affect the validity of such supplemental agreement or consents thereto). A record, consisting of the papers required by this Section 10.02 to be filed with the Landlord for a term to expire no earlier than the last day Trustee, shall be conclusive proof of the Extension Term (as defined below) on terms acceptable to matters therein stated. Such supplemental agreement shall become effective upon the Licensor in its sole mailing of such last-mentioned notice, and absolute discretion prior to May 30, 2011 (such supplemental agreement shall be deemed conclusively binding upon the “Renewal Agreement”). Notwithstanding the foregoing or anything else contained herein, the Licensee acknowledges and agrees that the Licensor is under no obligation to extend and/or renew the term of its Lease beyond its scheduled expiration date of July 31, 2014 and/or to enter into the Renewal Agreement. If the Licensor does extend or renew the term of the Lease, the Licensor may do so on such terms and conditions (including, without the limitation, the length of the renewal and/or extension) which are acceptable to the Licensor in its sole and absolute discretion parties hereto and the Licensor is under no obligation to extend and/or renew Owners of all Certificates at the Lease. Subject to the foregoingexpiration of sixty (60) days after such filing, if the Renewal Agreement is executed, the Licensor shall apprise the Licensee that the Renewal Agreement was executed, then, the Licensor will then grant to the Licensee the one-time, personal and non- assignable right to extend the Term for a period of two (2) years commencing on October 1, 2011 (the “Extension Term”) whereby all of the terms and conditions that pertained during the initial Term will apply during the Extension Term, except: (i) there shall be no further right to extend and/or renew; (ii) there shall be no Fixturing Period and the Licensee shall accept the Licensed Location in an “as-is-where-is condition”; and (iii) the License Fee for the Extension Term which shall be agreed upon between the Licensor and the Licensee at least three (3) months prior to the commencement of the Extension Term based upon a rate equal to the fair market value rate for similar premises having a similar size and similar location except in the vicinity, but event of a final decree of a court of competent jurisdiction setting aside such consent in no instance shall the License Fee be less than what the Licensor paid during the last year of the Terma legal action or equitable proceeding for such purpose commenced within such sixty (60) day period.

Provided. (i) no Event of Default exists nor any condition exists that, as the Licensee has paid result of notice previously given by Landlord and/or the Licensee Fee payments required throughout the Term as and when due and punctually observed and performed each passage of the termstime, covenants and conditions to be observed and performed by it in accordance with the terms would constitute an Event of this License Agreement and the Licensee is not in default under this Agreement and has not repeatedly been in default hereunder; Default; (ii) this Lease is in full force and effect; (iii) Tenant is the Licensee has delivered originally named Tenant or a written notice to Licensor electing Permitted Transferee; and (iv) Tenant (and not a subtenant) or a Permitted Transferee is occupying and paying full Rent on 100% of the Premises for the conduct of Tenant’s business, Tenant shall have the right to extend the Term not (“Extension Option”) for 60 months beyond the end of the Initial Term (“Extension Term”) by delivering Tenant’s written extension election notice (“Extension Notice”) to Landlord no later than six (6) the Extension Deadline and no earlier than 6 months prior to the end Extension Deadline, with time being of the initial essence. “Extension Deadline” means the date that is 12 months prior to the expiration of the Initial Term; and (iii) . If an Event of Default exists at any time after Landlord receives the Licensor has negotiated Extension Notice but before the first day of the Extension Term, then Landlord, at Landlord’s option, shall have the right to nullify Tenant’s exercise of the Extension Option. The terms and executed an extension and/or renewal agreement conditions of this Lease during the Extension Term shall remain unchanged except Tenant shall only be entitled to the one Extension Term provided above, the annual Fixed Rent for the Lease with Extension Term shall be the Landlord for a term to expire no earlier than Extension Rent (as defined below), the Expiration Date shall be the last day of the Extension Term (as defined below) on terms acceptable or such earlier date of termination of this Lease pursuant to the Licensor terms hereof), and, except to the extent reflected in its sole and absolute discretion prior to May 30the Extension Rent, 2011 (the “Renewal Agreement”). Notwithstanding the foregoing or anything else contained herein, the Licensee acknowledges and agrees that the Licensor is under Landlord shall have no obligation to extend and/or renew perform any tenant improvements to the term of its Lease beyond its scheduled expiration date of July 31, 2014 and/or Premises or provide any tenant improvement allowance to enter into the Renewal AgreementTenant. If the Licensor does extend or renew the term Upon Tenaxx’x xelivery of the Extension Notice, Tenant may not thereafter revoke its exercise of the Extension Option. Notwithstanding anything to the contrary in this Lease, the Licensor may do so on such terms and conditions (including, without the limitation, the length of the renewal and/or extension) which are acceptable to the Licensor in its sole and absolute discretion and the Licensor is under Tenant shall have no obligation to extend and/or renew the Lease. Subject to the foregoing, if the Renewal Agreement is executed, the Licensor shall apprise the Licensee that the Renewal Agreement was executed, then, the Licensor will then grant to the Licensee the one-time, personal and non- assignable right to extend the Term for a period of two (2) years commencing on October 1other than or beyond the one, 2011 (the “Extension Term”) whereby all of the terms and conditions that pertained during the initial Term will apply during the Extension Term, except: (i) there shall be no further right to extend and/or renew; (ii) there shall be no Fixturing Period and the Licensee shall accept the Licensed Location in an “as60-is-where-is condition”; and (iii) the License Fee for the month Extension Term which shall be agreed upon between the Licensor and the Licensee at least three (3) months prior to the commencement of the Extension Term based upon a rate equal to the fair market value rate for similar premises having a similar size and similar location described in the vicinity, but in no instance shall the License Fee be less than what the Licensor paid during the last year of the Termthis paragraph.

Provided. (i) If any such notice is given, LESSOR shall have, on such date so specified, the Licensee has paid right of re-entry and possession of the Licensee Fee payments Demised Premises and the right to remove all persons and property therefrom and to store such property in a warehouse or elsewhere at the risk and expense, and for the account, of LESSEE. Should LESSOR elect to re-enter as herein provided or should LESSOR take possession pursuant to legal proceedings or pursuant to any notice provided for by law, LESSOR may from time to time re-let the Demised Premises or any part thereof for such term or terms and at such rental or rentals and upon such terms and conditions as LESSOR may deem advisable, with the right to make alterations in and repairs to the Demised Premises. 19.2. In the event of any termination of this Lease as in this Article 19 provided or as required throughout or permitted by law, LESSEE shall forthwith quit and surrender the Term Demised Premises to LESSOR, and LESSOR may, without further notice, enter upon, reenter, possess and repossess the same by summary proceedings, ejectment or otherwise, and again have, repossess and enjoy the same as if this Lease had not been made, and in any such event LESSEE and no person claiming through or under LESSEE by virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Demised Premises but shall forthwith quit and surrender the Demised Premises, and LESSOR at its option shall forthwith, notwithstanding any other provision of this Lease, be entitled to recover from LESSEE, as and when for liquidated damages, the sum of: (a) all Basic Rent, Additional Rent and other amounts payable by LESSEE hereunder then due or accrued and punctually observed and performed each unpaid, and (b) for loss of the termsbargain, covenants an amount equal to the aggregate of all unpaid Basic Rent and conditions to be observed and performed by it in accordance with the terms of Additional Rent which would have been payable if this License Agreement and the Licensee is Lease had not in default under this Agreement and has not repeatedly been in default hereunder; (ii) the Licensee has delivered a written notice to Licensor electing to extend the Term not later than six (6) months terminated prior to the end of the initial TermTerm then in effect, discounted to its then present value in accordance with accepted financial practice using a rate equal to six percent (6%) per annum; and (iiic) the Licensor has negotiated all other damages and executed an extension and/or renewal agreement for the Lease with the Landlord for a term to expire no earlier than the last day expenses (including attorneys' fees and expenses), which LESSOR shall have sustained by reason of the Extension Term (breach of any provision of this Lease. 19.3. Nothing herein contained shall limit or prejudice the right of LESSOR, in any bankruptcy or insolvency proceeding, to prove for and obtain as defined below) on terms acceptable to the Licensor in its sole and absolute discretion prior to May 30, 2011 (the “Renewal Agreement”). Notwithstanding the foregoing or anything else contained herein, the Licensee acknowledges and agrees that the Licensor is under no obligation to extend and/or renew the term liquidated damages by reason of its Lease beyond its scheduled expiration date of July 31, 2014 and/or to enter into the Renewal Agreement. If the Licensor does extend or renew the term of the Lease, the Licensor may do so on such terms and conditions (including, without the limitation, the length of the renewal and/or extension) which are acceptable to the Licensor in its sole and absolute discretion and the Licensor is under no obligation to extend and/or renew the Lease. Subject to the foregoing, if the Renewal Agreement is executed, the Licensor shall apprise the Licensee that the Renewal Agreement was executed, then, the Licensor will then grant to the Licensee the one-time, personal and non- assignable right to extend the Term for a period of two (2) years commencing on October 1, 2011 (the “Extension Term”) whereby all of the terms and conditions that pertained during the initial Term will apply during the Extension Term, except: (i) there shall be no further right to extend and/or renew; (ii) there shall be no Fixturing Period and the Licensee shall accept the Licensed Location in termination an “as-is-where-is condition”; and (iii) the License Fee for the Extension Term which shall be agreed upon between the Licensor and the Licensee at least three (3) months prior to the commencement of the Extension Term based upon a rate amount equal to the fair market value rate maximum allowed by any bankruptcy or insolvency proceedings, or to prove for similar premises having and obtain as liquidated damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater or less than the excess referred to above. 19.4. In the event that LESSEE should abandon the Demised Premises, LESSOR may, at its option and for so long as LESSOR does not terminate LESSEE'S right to possession of the Demised Premises, enforce all of its rights and remedies under this Lease, including the right to recover all Basic Rent, Additional Rent and other payments as they become due hereunder. Additionally, LESSOR shall be entitled to recover from LESSEE all costs of maintenance and preservation of the Demised Premises, and all costs, including attorneys' and receiver's fees, incurred in connection with the appointment of or performance by a similar size receiver to protect the Demised Premises and similar location LESSOR'S interest under this Lease. 19.5. Nothing herein shall be deemed to affect the right of LESSOR to indemnification pursuant to Section 8.1 of this Lease. 19.6. At the request of LESSOR upon the occurrence of an Event of Default, LESSEE will quit and surrender the Demised Premises to LESSOR or its agents, and LESSOR may without further notice enter upon, re-enter and repossess the Demised Premises by summary proceedings, ejectment or otherwise. The words "enter", "re-enter", and "re-entry" are not restricted to their technical legal meanings. 19.7. If LESSEE shall be in default in the vicinityobservance or performance of any provision of this Lease, but and an action shall be brought for the enforcement thereof in no instance which it shall be determined that LESSEE was in default, LESSEE shall pay to LESSOR all fees, costs and other expenses which may become payable as a result thereof or in connection therewith, including attorneys' fees and expenses. 19.8. If LESSEE shall default in the License Fee be less than what keeping, observance or performance of any covenant, agreement, term, provision or condition herein contained, LESSOR, without thereby waiving such default, may perform the Licensor paid during same for the last year account and at the expense of LESSEE (a) immediately or at any time thereafter and without notice in the case of emergency or in case such default will result in a violation of any Legal or Insurance Requirement, or in the imposition of any Lien against all or any portion of the TermPremises and (b) in any other case if such default continues after thirty (30) days from the date of the giving by LESSOR to LESSEE of notice of LESSOR'S intention so to perform the same. All costs and expenses incurred by LESSOR in connection with any such performance by it for the account of LESSEE and also all costs and expenses, including attorneys' fees and disbursements incurred by LESSOR in any action or proceeding (including any summary dispossess proceeding) brought by LESSOR to enforce any obligation of LESSEE under this Lease and/or right of LESSOR in or to the Demised Premises, shall be paid by LESSEE to LESSOR upon demand. 19.9. Except as otherwise provided in this Article 19, no right or remedy herein conferred upon or reserved to LESSOR is intended to be exclusive of any other right or remedy, and every right and remedy shall be cumulative and in addition to any other legal or equitable right or remedy given hereunder, or now or hereafter existing. No waiver by LESSOR of any provision of this Lease shall be deemed to have been made unless expressly so made in writing. LESSOR shall be entitled, to the extent permitted by law, to injunctive relief in case of the violation, or attempted or threatened violation, of any provision of this Lease, or to a decree compelling observance or performance of any provision of this Lease, or to any other legal or equitable remedy.

Provided. (i) the Licensee Default or no Event of Default has paid the Licensee Fee payments required throughout the Term as occurred and when due and punctually observed and performed each of the termsis continuing, covenants and conditions to be observed and performed by it in accordance with the terms of this License Agreement and the Licensee is not in default under this Agreement and has not repeatedly been in default hereunder; (ii) the Licensee Revolving Credit Maturity Date has delivered a written not been extended by either the Agent (as defined in the Credit Agreement) or the Required Lenders beyond the fifth (5th) anniversary of the Closing Date (with any such notice to Licensor electing of any intent to extend the Term not later Revolving Credit Maturity Date beyond the fifth (5th) anniversary of the Closing Date to be irrevocable and provided no less than six (6) months prior to the end Revolving Credit Maturity Date, which irrevocable notice shall, among other things, (xx) commit to the extension of the initial Term; and (iii) the Licensor has negotiated and executed an extension and/or renewal agreement for the Lease with the Landlord for a term to expire no earlier than the last day of the Extension Term (as defined below) on terms acceptable to the Licensor in its sole and absolute discretion prior to May 30, 2011 (the “Renewal Agreement”). Notwithstanding the foregoing or anything else contained herein, the Licensee acknowledges and agrees that the Licensor is under no obligation to extend and/or renew the term of its Lease beyond its scheduled expiration date of July 31, 2014 and/or to enter into the Renewal Agreement. If the Licensor does extend or renew the term of the Lease, the Licensor may do so on such terms and conditions (including, without the limitation, the length of the renewal and/or extension) which are acceptable to the Licensor in its sole and absolute discretion and the Licensor is under no obligation to extend and/or renew the Lease. Subject to the foregoing, if the Renewal Agreement is executed, the Licensor shall apprise the Licensee that the Renewal Agreement was executed, then, the Licensor will then grant to the Licensee the one-time, personal and non- assignable right to extend the Term Revolving Credit Maturity Date for a period of two (2) years commencing on October 1, 2011 (the “Extension Term”) whereby all of the terms and conditions that pertained during the initial Term will apply during the Extension Term, except: (i) there shall be no further right to extend and/or renew; (ii) there shall be no Fixturing Period and the Licensee shall accept the Licensed Location in an “as-is-where-is condition”; and (iii) the License Fee for the Extension Term which shall be agreed upon between the Licensor and the Licensee at least not less than three (3) months years, and (yy) commit to the extension of the Revolving Credit Commitments on comparable terms to the existing Revolving Credit Commitments (including an extension fee of fifty (50) basis points)) and (iv) the Borrower replaces the Total Revolving Credit Commitment with another revolving credit facility provided by another lender or another group of lenders as of the Revolving Credit Maturity Date, the Collateral Agent shall release from its Collateral the Working Capital Assets provided that immediately prior to the commencement release: (1) the Total Revolving Credit Commitment shall have been terminated and the Revolving Loans and all accrued interest thereon and related fees have been aid in full, and (2) all Standby L/Cs and any contingent obligations related thereto have been terminated. Notwithstanding anything to the contrary contained herein, if the appropriate irrevocable notice described in this paragraph is delivered to the Borrower, then the Borrower shall not have the option to replace the existing Total Revolving Credit Commitment with another credit facility, and no Collateral (including but not limited to the Working Capital Assets) shall be released. Furthermore, should the Borrower elect to prepay in full the Total Revolving Credit Commitment prior to the Revolving Credit Maturity Date, no Collateral (including but not limited to the Working Capital Assets) shall be released unless and until the Total Term Loan Commitment and Total Revolving Credit Commitment are irrevocably paid in full and terminated, and all Letters of Credit issued pursuant to the terms of the Extension Term based upon a rate equal to Credit Agreement and terminated in accordance with the fair market value rate for similar premises having a similar size and similar location in the vicinity, but in no instance shall the License Fee be less than what the Licensor paid during the last year terms of the TermCredit Agreement.

Provided. (i) HOWEVER, that the Licensee Company shall not exclude any Registrable Securities unless the Company has paid first excluded all outstanding securities held by holders who are not entitled by contract to the Licensee Fee payments required throughout the Term as and when due and punctually observed and performed each inclusion of the terms, covenants and conditions such securities in such Piggyback Eligible Registration Statement or are not entitled to be observed and performed by it in accordance pro rata inclusion with the terms Registrable Securities (it being understood, for avoidance of doubt, that the Company shall not be required to exclude any securities subject to the Registration Rights Agreement dated December 24, 2003, among the Company, Mainfield Enterprises, Inc. and Smithfield Fiduciary LLC as amended June 30, 2006, the Settlement Agreement and Release, dated as of June 30, 2006, by and between the Company and Smithfield Fiduciary LLC, and the Exchange Agreement, dated as of August 14, 2008, between the Company and Mainfield Enterprises, Inc. (collectively, the “Existing Agreements”)); and PROVIDED, FURTHER, HOWEVER, that, after giving effect to the immediately preceding proviso, any exclusion of Registrable Securities shall be made pro rata with holders of other securities having the contractual right to include such securities in the Piggyback Eligible Registration Statement other than holders of securities entitled to inclusion of their securities in such Piggyback Eligible Registration Statement by reason of demand registration rights or under the Existing Agreements. No right to registration of Registrable Securities under this Section 2(b) shall be construed to limit any registration required under Section 2(a) hereof. If an offering in connection with which a Buyer is entitled to registration under this Section 2(b) is an underwritten offering, then a Buyer shall, unless otherwise agreed by the Company, offer and sell such Registrable Securities in an underwritten offering using the same underwriter or underwriters and, subject to the provisions of this License Agreement and the Licensee is not underwriting agreement in default under this Agreement and has not repeatedly been in default hereunder; (ii) such offering, on the Licensee has delivered a written notice to Licensor electing to extend the Term not later than six (6) months prior to the end of the initial Term; and (iii) the Licensor has negotiated and executed an extension and/or renewal agreement for the Lease with the Landlord for a term to expire no earlier than the last day of the Extension Term (as defined below) on terms acceptable to the Licensor in its sole and absolute discretion prior to May 30, 2011 (the “Renewal Agreement”). Notwithstanding the foregoing or anything else contained herein, the Licensee acknowledges and agrees that the Licensor is under no obligation to extend and/or renew the term of its Lease beyond its scheduled expiration date of July 31, 2014 and/or to enter into the Renewal Agreement. If the Licensor does extend or renew the term of the Lease, the Licensor may do so on such same terms and conditions as other shares of Common Stock included in such underwritten offering (including, without the limitation, execution of an agreement with the length managing underwriter or agent limiting the sale or distribution such Buyer may make of shares of Common Stock or any securities convertible or exchangeable or exercisable for such shares of the renewal and/or extension) which are acceptable Company, except as part of such registration). Notwithstanding anything to the Licensor in its sole and absolute discretion and contrary set forth herein, the Licensor is under no obligation registration rights of the Buyers pursuant to extend and/or renew the Lease. Subject this Section 2(b) shall only be available to the foregoing, if the Renewal Agreement is executed, the Licensor shall apprise the Licensee extent that the Renewal Agreement was executed, then, Buyer holds outstanding Registrable Securities that are not registered for resale or issuance pursuant to another effective Registration Statement at the Licensor will then grant to time that the Licensee the one-time, personal and non- assignable right to extend the Term for Company files a period of two (2) years commencing on October 1, 2011 (the “Extension Term”) whereby all of the terms and conditions that pertained during the initial Term will apply during the Extension Term, except: (i) there shall be no further right to extend and/or renew; (ii) there shall be no Fixturing Period and the Licensee shall accept the Licensed Location in an “as-is-where-is condition”; and (iii) the License Fee for the Extension Term which shall be agreed upon between the Licensor and the Licensee at least three (3) months prior to the commencement of the Extension Term based upon a rate equal to the fair market value rate for similar premises having a similar size and similar location in the vicinity, but in no instance shall the License Fee be less than what the Licensor paid during the last year of the TermPiggyback Eligible Registration Statement.