Common use of Provided Clause in Contracts

Provided. HOWEVER, that the Company shall not exclude any Registrable Securities unless the Company has first excluded all outstanding securities held by holders who are not entitled by contract to the inclusion of such securities in such Piggyback Eligible Registration Statement or are not entitled to pro rata inclusion with the 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 Agreement and the underwriting agreement in such offering, on the same terms and conditions as other shares of Common Stock included in such underwritten offering (including, without limitation, execution of an agreement with the 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 Company, except as part of such registration). Notwithstanding anything to the contrary set forth herein, the registration rights of the Buyers pursuant to this Section 2(b) shall only be available to the extent that the Buyer holds outstanding Registrable Securities that are not registered for resale or issuance pursuant to another effective Registration Statement at the time that the Company files a Piggyback Eligible Registration Statement.

Provided. HOWEVER, that the Company Such supplemental agreement shall not exclude become effective unless there shall be filed with the Trustee the written consents of the Owners 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, 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 on any Registrable Securities subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such consent is revoked in writing by the Company has first excluded all outstanding securities held Owner giving such consent or a subsequent Owner by holders who are not entitled by contract filing such revocation with the Trustee prior to the inclusion date when the notice hereinafter in the following paragraph of this Section 9.02 provided for has been mailed. After the Owners of the required percentage of Certificates shall have filed their consents to such supplemental agreement, the Trustee shall mail by first class mail, postage prepaid, a notice at the expense of the District, to the Owners of the Certificates in the manner hereinbefore provided in this Section 9.02 for the mailing of such securities supplemental agreement of the notice of adoption thereof, stating in substance that such Piggyback Eligible Registration Statement supplemental agreement has been consented to by the Owners of the required percentage of Certificates and will be effective as provided in this Section 9.02 (but failure to mail copies of said notice shall not affect the validity of such supplemental agreement or are not entitled consents thereto). A record, consisting of the papers required by this Section 9.02 to pro rata inclusion be filed with the Registrable Securities (it being understoodTrustee, for avoidance shall be conclusive proof of doubt, that the Company matters therein stated. Such supplemental agreement shall not be required to exclude any securities subject to become effective upon 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 mailing of June 30, 2006, by and between the Company and Smithfield Fiduciary LLCsuch last-mentioned notice, 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 such supplemental agreement shall be made pro rata with holders deemed conclusively binding upon the parties hereto and the Owners of other securities having all Certificates at the contractual right to include expiration of sixty (60) days after such securities filing, except in the Piggyback Eligible Registration Statement other than holders event of securities entitled to inclusion a final decree of their securities a court of competent jurisdiction setting aside such consent in such Piggyback Eligible Registration Statement by reason of demand registration rights a legal action 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 Agreement and the underwriting agreement in such offering, on the same terms and conditions as other shares of Common Stock included in such underwritten offering (including, without limitation, execution of an agreement with the 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 equitable proceeding for such shares of the Company, except as part of purpose commenced within such registration). Notwithstanding anything to the contrary set forth herein, the registration rights of the Buyers pursuant to this Section 2(bsixty (60) shall only be available to the extent that the Buyer holds outstanding Registrable Securities that are not registered for resale or issuance pursuant to another effective Registration Statement at the time that the Company files a Piggyback Eligible Registration Statementday period.

Provided. HOWEVER(i) no Event of Default exists nor any condition exists that, that as the Company result of notice previously given by Landlord and/or the passage of time, would constitute an Event of Default; (ii) this Lease is in full force and effect; (iii) Tenant is the originally named Tenant or a 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 not exclude any Registrable Securities unless have the Company has first excluded all outstanding securities held right to extend the Term (“Extension Option”) for 60 months beyond the end of the Initial Term (“Extension Term”) by holders who are not entitled by contract delivering Tenant’s written extension election notice (“Extension Notice”) to Landlord no later than the Extension Deadline and no earlier than 6 months prior to the inclusion Extension Deadline, with time being of such securities in such Piggyback Eligible Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities (it being understood, for avoidance of doubt, essence. “Extension Deadline” means the date that the Company shall not be required to exclude any securities subject is 12 months prior to the Registration Rights Agreement dated December 24, 2003, among expiration of 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) hereofInitial Term. If an offering in connection with which a Buyer is entitled to registration under this Section 2(b) is an underwritten offeringEvent of Default exists at any time after Landlord receives the Extension Notice but before the first day of the Extension Term, then a Buyer shallLandlord, unless otherwise agreed by at Landlord’s option, shall have the Company, offer and sell such Registrable Securities in an underwritten offering using right to nullify Tenant’s exercise of the same underwriter or underwriters and, subject to the provisions of this Agreement and the underwriting agreement in such offering, on the same Extension Option. The terms and 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 Extension Term shall be the Extension Rent (as other shares of Common Stock included in such underwritten offering (includingdefined below), without limitation, execution of an agreement with the managing underwriter or agent limiting Expiration Date shall be the sale or distribution such Buyer may make of shares of Common Stock or any securities convertible or exchangeable or exercisable for such shares last day of the CompanyExtension Term (or such earlier date of termination of this Lease pursuant to the terms hereof), and, except as part to the extent reflected in the Extension Rent, Landlord shall have no obligation to perform any tenant improvements to the Premises or provide any tenant improvement allowance to Tenant. Upon Tenaxx’x xelivery of such registration)the Extension Notice, Tenant may not thereafter revoke its exercise of the Extension Option. Notwithstanding anything to the contrary set forth hereinin this Lease, Tenant shall have no right to extend the registration rights of Term other than or beyond the Buyers pursuant to one, 60-month Extension Term described in this Section 2(b) shall only be available to the extent that the Buyer holds outstanding Registrable Securities that are not registered for resale or issuance pursuant to another effective Registration Statement at the time that the Company files a Piggyback Eligible Registration Statementparagraph.

Provided. HOWEVER, that the Company Such supplemental agreement shall not exclude become effective unless there shall be filed with the Trustee the written consents of the Owners 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, 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 on any Registrable Securities subsequent Owner (whether or not such subsequent Owner has notice thereof) unless such consent is revoked in writing by the Company has first excluded all outstanding securities held Owner giving such consent or a subsequent Owner by holders who are not entitled by contract filing such revocation with the Trustee prior to the inclusion date when the notice hereinafter in the following paragraph of this Section 9.02 provided for has been mailed. After the Owners of the required percentage of Certificates shall have filed their consents to such supplemental agreement, the 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 mailing of such securities supplemental agreement of the notice of adoption thereof, stating in substance that such Piggyback Eligible Registration Statement 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 are not entitled consents thereto). A record, consisting of the papers required by this Section 10.02 to pro rata inclusion be filed with the Registrable Securities (it being understoodTrustee, for avoidance shall be conclusive proof of doubt, that the Company matters therein stated. Such supplemental agreement shall not be required to exclude any securities subject to become effective upon 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 mailing of June 30, 2006, by and between the Company and Smithfield Fiduciary LLCsuch last-mentioned notice, 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 such supplemental agreement shall be made pro rata with holders deemed conclusively binding upon the parties hereto and the Owners of other securities having all Certificates at the contractual right to include expiration of sixty (60) days after such securities filing, except in the Piggyback Eligible Registration Statement other than holders event of securities entitled to inclusion a final decree of their securities a court of competent jurisdiction setting aside such consent in such Piggyback Eligible Registration Statement by reason of demand registration rights a legal action 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 Agreement and the underwriting agreement in such offering, on the same terms and conditions as other shares of Common Stock included in such underwritten offering (including, without limitation, execution of an agreement with the 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 equitable proceeding for such shares of the Company, except as part of purpose commenced within such registration). Notwithstanding anything to the contrary set forth herein, the registration rights of the Buyers pursuant to this Section 2(bsixty (60) shall only be available to the extent that the Buyer holds outstanding Registrable Securities that are not registered for resale or issuance pursuant to another effective Registration Statement at the time that the Company files a Piggyback Eligible Registration Statementday period.

Provided. HOWEVER(i) Default or no Event of Default has occurred and is continuing, that (ii) the Company shall Revolving Credit Maturity Date has not exclude 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 Registrable Securities unless such notice of any intent to extend the Company has first excluded all outstanding securities held by holders who are not entitled by contract 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 inclusion of such securities in such Piggyback Eligible Registration Statement or are not entitled to pro rata inclusion with the Registrable Securities Revolving Credit Maturity Date, which irrevocable notice shall, among other things, (it being understood, for avoidance of doubt, that the Company shall not be required to exclude any securities subject xx) commit to the Registration Rights Agreement dated December 24extension of the Revolving Credit Maturity Date for a period of not less than three (3) years, 2003, among and (yy) commit to the Company, Mainfield Enterprises, Inc. 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 Smithfield Fiduciary LLC (iv) the Borrower replaces the Total Revolving Credit Commitment with another revolving credit facility provided by another lender or another group of lenders as amended June 30, 2006of the Revolving Credit Maturity Date, the Settlement Agreement Collateral Agent shall release from its Collateral the Working Capital Assets provided that immediately prior to the release: (1) the Total Revolving Credit Commitment shall have been terminated and Release, dated as of June 30, 2006, by the Revolving Loans and between the Company all accrued interest thereon and Smithfield Fiduciary LLCrelated fees have been aid in full, and the Exchange Agreement, dated as of August 14, 2008, between the Company (2) all Standby L/Cs 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 Agreement and the underwriting agreement in such offering, on the same terms and conditions as other shares of Common Stock included in such underwritten offering (including, without limitation, execution of an agreement with the 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 Company, except as part of such registration)contingent obligations related thereto have been terminated. Notwithstanding anything to the contrary set forth contained herein, if the registration rights 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 Buyers pursuant to this Section 2(b) shall only be available to Credit Agreement and terminated in accordance with the extent that terms of the Buyer holds outstanding Registrable Securities that are not registered for resale or issuance pursuant to another effective Registration Statement at the time that the Company files a Piggyback Eligible Registration StatementCredit Agreement.