Common use of Priority of Registration Clause in Contracts

Priority of Registration. If the Managing Underwriter(s) of any proposed Underwritten Offering advises the Partnership that the total amount of Registrable Securities that the Selling Holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have an adverse effect in any material respect on the price, timing or distribution of the Common Units offered or the market for the Common Units, then the Common Units to be included in such Underwritten Offering shall include the number of Units that such Managing Underwriter(s) advises the Partnership can be sold without having such adverse effect, with such number to be allocated (i) first, to the Partnership unless a Holder initiates the Underwritten Offering, in which case it shall be to the Holders, (ii) second, and if any, the number of included Registrable Securities that, in the opinion of such Managing Underwriter(s), can be sold without having such adverse effect, with such number to be allocated pro rata among the Holders (or the Partnership if a Holder initiates the Underwritten Offering) that have requested to participate in such Underwritten Offering based on the relative number of Registrable Securities then held by each such Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner), and (iii) if there remains availability for additional Common Units to be included in such registration, third, pro rata among all other holders of Common Units who may be seeking to register such Common Units based on the number of Common Units such holder is entitled to include in such registration.

Priority of Registration. If the Managing Underwriter(s) of any proposed Underwritten Offering advises the Partnership that the total amount of Registrable Securities that the Selling Holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have an adverse effect in any material respect on the price, timing or distribution of the Common Units offered or the market for the Common Units, then the Common Units to be included in such Underwritten Offering shall include the number of Units that such Managing Underwriter(s) advises the Partnership can be sold without having such adverse effect, with such number to be allocated (i) first, to the Partnership unless a Holder initiates the Underwritten Offering, in which case it shall be to the Holders, (ii) second, and if any, the number of included Registrable Securities that, in the opinion of such Managing Underwriter(s), can be sold without having such adverse effect, with such number to be allocated pro rata among the Holders (or the Partnership if a Holder initiates the Underwritten Offering) that have requested to participate in such Underwritten Offering based on the relative number of Registrable Securities then held by each such Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner), and (iii) if there remains availability for additional Common Units to be included in such registration, third, third pro rata among all other holders of Common Units who may be seeking to register such Common Units based on the number of Common Units such holder is entitled to include in such registration.

Priority of Registration. If the Managing Underwriter(s) Underwriter of any proposed Underwritten Offering advises the Partnership that the total amount of Registrable Securities that the Selling Holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have an adverse effect in any material respect on the price, timing or distribution of the Common Units offered or the market for the Common Units, then the Common Units to be included in such Underwritten Offering shall include the number of Units that such Managing Underwriter(s) Underwriter advises the Partnership can be sold without having such adverse effect, with such number to be allocated (i) first, (A) to the Partnership, if the Partnership unless a Holder initiates the Underwritten Offering, in which case it shall be or (B) to the HoldersHolder(s) or Other Holder(s) initiating the Underwritten Offering if such Holders or Other Holders initiate the Underwritten Offer, (ii) second, and if any, the number of included Registrable Securities that, in the opinion of such Managing Underwriter(s), can be sold without having such adverse effect, with such number to be allocated on a pro rata among the Holders (or the Partnership if a Holder initiates the Underwritten Offering) that have requested to participate in such Underwritten Offering based on the relative number of Registrable Securities then held by each such Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manner), and (iii) if there remains availability for additional Common Units to be included in such registration, third, pro rata among all other holders of Common Units who may be seeking to register such Common Units basis based on the number of Common Units requested by such holder is entitled Holders or Other Holders, as the case may be, to be included in the Underwritten Offering, (ii) second, to the Holder(s) or Other Holders(s) (other than any Holder(s) or Other Holder(s) initiating the Underwritten Offering, if applicable), on a pro rata basis based on the total number of Common Units requested by such Holder(s) and Other Holder(s) to be included in the Underwritten Offering; provided, that in the case of an underwritten offering of Common Units effected pursuant to the Noteholder Registration Statement, the Other Holder(s) seeking to include Common Units in such registrationoffering pursuant to Section 3(d) or Section 4(d) of the Noteholder Registration Statement shall be deemed to be Other Holder(s) initiating such offering, (iii) third, to the Partnership, if the Partnership is seeking to include Common Units in the Underwritten Offering and (iv) fourth, to any Person other than a Holder, an Other Holder or the Partnership.

Priority of Registration. If the Managing Underwriter(s) of any proposed Underwritten Offering advises the Partnership EVA that the total amount of Registrable Securities that the Selling Holders and any other Persons (including Pari Passu Securities of any Pari Passu Holders) intend to include in such offering exceeds the number that can be sold in such offering without being likely to have an adverse effect in any material respect on the price, timing or distribution of the Common Units EVA Securities offered or the market for the Common UnitsEVA Securities, then the Common Units EVA Securities to be included in such Underwritten Offering shall include the number of Units EVA Securities that such Managing Underwriter(s) advises the Partnership EVA can be sold without having such adverse effect, with such number to be allocated (i) first, to the Partnership EVA unless a Holder initiates the Underwritten Offering, in which case it shall be to the Holders and Pari Passu Holders pro rata based on the number of Registrable Securities requested to be included in such Underwritten Offering by the Holders or Pari Passu Holders, and (ii) second, and if any, the number of included Registrable Securities and Pari Passu Securities that, in the opinion of such Managing Underwriter(s), can be sold without having such adverse effect, with such number to be allocated pro rata among the Holders and Pari Passu Holders (or the Partnership EVA if a Holder or a Pari Passu Holder initiates the Underwritten Offering) that have requested to participate in such Underwritten Offering based on the relative number of Registrable Securities then held and Pari Passu Securities requested to be included in such Underwritten Offering by each such Holder or Pari Passu Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders or Pari Passu Holders in like manner), and (iii) if there remains availability for additional Common Units to be included in such registration, third, pro rata among all other holders of Common Units who may be seeking to register such Common Units based on the number of Common Units such holder is entitled to include in such registration.

Priority of Registration. If Any distribution of Registrable Securities made pursuant to a registration request under this Section 2.A. may be done at the Managing Underwriter(soption of the Holder, by means of an underwriting and, subject to the limitations set forth in this subsection (ii), may, at the Company's option, include other shares of Common Stock owned by other holders of the Company's Common Stock ("Other Securityholders"). A majority in interest of the Holders initiating the registration request (the "Initiating Holders") shall select the Underwriter or Underwriters for such underwriting. The Company shall have the right to disapprove any Underwriter so selected if, in its reasonable judgment, the underwriting of the Company's securities by such Underwriter would have a material and adverse effect on the market for the Company's securities ("Material Adverse Effect"). The right of any proposed Underwritten Offering Holder to include his or its Registrable Securities in such registration shall be conditioned upon such Holder's participation in such underwriting and the inclusion of such Holder's Registrable Securities in the underwriting to the extent provided herein. All Holders proposing to distribute their Registrable Securities through such underwriting shall (together with the Company) enter into an underwriting agreement in customary form with the Underwriter or Underwriters. Notwithstanding any other provision of this Section 2.A., if the Underwriter advises the Partnership Initiating Holders and the Company in writing that marketing factors require a limitation of the total number of shares to be underwritten, then the Company shall so advise all Holders and Other Securityholders which would otherwise be underwritten pursuant hereto, and the number of shares of Registrable Securities and other shares of Common Stock that may be included in the underwriting shall be allocated first among all Holders, including the Initiating Holders, in proportion (as nearly as practicable) to the amount of Registrable Securities that the Selling Holders and any other Persons intend to include in such offering exceeds the number that can be sold in such offering without being likely to have an adverse effect in any material respect on the price, timing or distribution of the Common Units offered or the market for the Common UnitsCompany owned by each Holder, then the Common Units to be included in such Underwritten Offering shall include the number of Units that such Managing Underwriter(s) advises the Partnership can be sold without having such adverse effectand, with such number to be allocated (i) firstthen, to the Partnership unless a Holder initiates the Underwritten Offering, in which case it shall be to the Holders, (ii) second, and only if any, the number of included Registrable Securities that, in the opinion of such Managing Underwriter(s), can be sold without having such adverse effect, with such number to be allocated pro rata among the Holders (or the Partnership if a Holder initiates the Underwritten Offering) that have requested to participate in such Underwritten Offering based on the relative number no shares of Registrable Securities then held have been excluded by reason of such Underwriters' marketing limitation, among all Other Securityholders, in proportion (as nearly as practicable) to the amount of Common Stock owned by each such Holder (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among Other Securityholder or as otherwise deemed appropriate by the remaining requesting Holders in like manner), and (iii) if there remains availability for additional Common Units to be included in such registration, third, pro rata among all other holders of Common Units who may be seeking to register such Common Units based on the number of Common Units such holder is entitled to include in such registrationCompany.

Priority of Registration. If the Managing Underwriter(sNotwithstanding anything contained in Section 4(c) of any the Registration Rights Agreement to the contrary, the Company and each of the Signing Stockholders agree that, if the managing underwriter or underwriters of the Proposed Offering advise the Company in writing that in its or their opinion the number of shares of Common Stock proposed Underwritten to be sold in the Proposed Offering advises the Partnership that the total amount of Registrable Securities that the Selling Holders and any other Persons intend to include in such offering exceeds the number of shares that can be sold in such offering the Proposed Offering without being likely to have an adverse effect in any material respect on the priceProposed Offering (such adverse effect to include, timing or distribution but not be limited to, any adverse effect on the marketing of the Common Units offered Proposed Offering or the market for price of the shares of Common UnitsStock offered in the Proposed Offering), then the Common Units to be included Company will include in such Underwritten the Proposed Offering shall include only the number of Units that such Managing Underwriter(s) advises the Partnership can be sold without having such adverse effect, with such number to be allocated (i) first, to the Partnership unless a Holder initiates the Underwritten Offering, in which case it shall be to the Holders, (ii) second, and if any, the number shares of included Registrable Securities Common Stock that, in the opinion of such Managing Underwriter(s)underwriter or underwriters, in its or their sole and absolute discretion, can be sold without having such adverse effectin the Proposed Offering as follows: first, with such number the 3,000,000 shares of Common Stock the Company proposes to sell for its own account and then second, shares of Common Stock proposed to be allocated sold by the Signing Stockholders on a pro rata among basis. Notwithstanding the Holders (foregoing, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ shall be allowed to sell 131,948 shares in the Proposed Offering as a Signing Stockholder; provided that, any cut-back in the participation of ▇▇. ▇▇▇▇▇▇▇ and the other Signing Stockholders in the Proposed Offering shall be on a pro-rata basis. In the event that the managing underwriter or underwriters of the Partnership if a Holder initiates Proposed Offering advise the Underwritten Offering) Company in writing that have requested to participate in such Underwritten its or their opinion the number of shares of Common Stock that can be sold in the Proposed Offering based without an adverse affect on the relative Proposed Offering exceeds the 3,000,000 shares of Common Stock the Company proposes to sell for its own account and the number of Registrable Securities then held shares of Common Stock proposed to be sold by each such Holder the Signing Stockholders (provided that any securities thereby allocated to a Holder that exceed such Holder’s request shall be reallocated among the remaining requesting Holders in like manneran "Upsizing"), and (iii) if there remains availability for the additional shares of Common Units to Stock that can be sold shall be included in such registrationthe Proposed Offering as follows: first, thirdadditional shares of Common Stock that the Signing Stockholders wish to sell, if any, on a pro rata among all other holders basis and then second, additional shares of Common Units who Stock that the Company wishes to sell, if any. For purposes of the Proposed Offering, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. shall be deemed to be a Signing Stockholder. Notwithstanding the foregoing, in the event of an Upsizing, if the Proposed Offering is priced on or prior to January 31, 2004, the Company may be seeking to register such Common Units based on prevent the number Signing Stockholders from selling additional shares of Common Units such holder is entitled to include Stock in such registrationthe Proposed Offering as part of the Upsizing.