Common use of Backstop Commitment Premium Clause in Contracts

Backstop Commitment Premium. The Debtors will pay the Commitment Parties on the Effective Date a backstop premium equal to 4.0% of the $530 million committed amount (the “Backstop Commitment Premium”), of which 3.0% will be paid in cash and 1.0% in the form of Common Stock at the Discounted Per Share Price; provided, that to the extent the Backstop Commitment Agreement is terminated for any reason other than by the Company under clause (iv) of its termination rights below, the Debtors shall pay the Backstop Commitment Premium entirely in cash to the Commitment Parties promptly after the date of such termination. The Backstop Commitment Premium shall be fully earned and nonrefundable as of the date of the BCA Approval Order (as defined below). All amounts payable to the Commitment Parties in their capacities as such for the Backstop Commitment Premium shall be paid pro rata based on the amount of their respective Backstop Commitments (as compared to the aggregate Backstop Commitment of all Commitment Parties) on the Effective Date (or, if applicable, on the date the Backstop Commitment Agreement is terminated). The Backstop Commitment Premium and the Expense Reimbursement (as defined below) shall constitute allowed administrative expenses of the Debtors’ estates under sections 503(b) and 507 of the Bankruptcy Code under the BCA Approval Order (as defined below). The issuance of the Backstop Commitment Premium payable in the form of Common Stock shall be exempt from the registration requirements of the securities laws pursuant to section 1145 of the Bankruptcy Code. Expense Reimbursement: In accordance with and subject to the BCA Approval Order (as defined below), the Debtors will pay all reasonably incurred and documented out-of-pocket fees and expenses of all of the attorneys, accountants, other professionals, advisors, and consultants incurred on behalf of the Ad Hoc Group of Unsecured Noteholders and the Ad Hoc Group of Second Lien Noteholders (together, the “Ad Hoc Groups”), whether incurred directly by the relevant Noteholders or on behalf of the Noteholders through the Indenture Trustee, including, (i) in respect of the Ad Hoc Group of Unsecured Noteholders, the fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and PJT Partners Inc., and (ii) in respect of the Ad Hoc Group of Second Lien Noteholders, the fees and expenses of O’Melveny & ▇▇▇▇▇ LLP, ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Intrepid Financial Partners, L.L.C., and ▇.▇. ▇▇▇ ▇▇▇▇▇▇ & Co. (such payment obligations, the “Expense Reimbursement”). Unless otherwise ordered by the Bankruptcy Court, no recipient of any payment hereunder shall be required to file with respect thereto any interim or final fee application with the Bankruptcy Court. The Expense Reimbursement accrued through the date on which the BCA Approval Order is entered shall be paid as promptly as reasonably practicable after such date. Thereafter, the Expense Reimbursement shall be payable by the Debtors on a monthly basis. If the RSA or the Backstop Commitment Agreement is terminated for any reason (other than in connection with an Individual Termination Event), the Debtors will no longer be obligated to pay the Expense Reimbursement in respect of any fees incurred after the date of such termination.

Backstop Commitment Premium. The On the effective date of the Plan, the Debtors will pay the Commitment Parties on the Effective Date a backstop premium equal to 4.010% of the $530 65.0 million (or the then-applicable amount) committed amount (the “Backstop Commitment Premium”), of which 3.0% will be paid in cash and 1.0% or 4,816,589 shares (or the then-applicable amount), payable in the form of Common Reorganized Parent Participating Preferred Stock at the Discounted Per Share Participating Preferred Stock Purchase Price; provided, that to the extent the Backstop Commitment Agreement is terminated for any by reason other than of a breach by the Company under clause (iv) of its termination rights belowDebtors or the Debtors consummate an alternative transaction, in each case, the Debtors shall will pay the Backstop Commitment Premium entirely in cash to the Commitment Parties promptly after the date of such termination. The Backstop Commitment Premium shall will be fully earned and nonrefundable as of the date of the BCA Approval Order (as defined below). All amounts payable Bankruptcy Court enters an order, in form and substance consistent with the Restructuring Term Sheet, the RSA, and this Rights Offering Term Sheet and otherwise reasonably acceptable to the Debtors and the Requisite Commitment Parties in their capacities as such for Parties, authorizing the Company (on behalf of itself and the other Debtors) to execute and deliver the Backstop Commitment Agreement, including the authorization of the Backstop Commitment Premium shall be paid pro rata based on and Expense Reimbursement and the amount of their respective Backstop Commitments (as compared to the aggregate Backstop Commitment of all Commitment Parties) on the Effective Date (or, if applicable, on the date indemnification provisions contained in the Backstop Commitment Agreement is terminated). The Agreement, and providing that the Backstop Commitment Premium and the Premium, Expense Reimbursement (as defined below) shall and indemnification obligations constitute allowed administrative expenses of the Debtors’ estates under sections 503(b503(b)(1)(A) and 507 of the Bankruptcy Code under and with the BCA Approval Order priority established by section 507(a)(2) of the Bankruptcy Code (which claim shall be junior in all respects to the Carve Out (as defined below)in the final order approving the Debtors’ entry into the DIP Facility [Docket No. 652]) and will be payable by the Debtors as provided in the Backstop Commitment Agreement without further order of the Bankruptcy Court. The issuance of the Backstop Commitment Premium payable in the form of Common Parent Participating Preferred Stock shall will be exempt from the registration requirements of the securities laws pursuant purs uant to section 1145 Section 4(a)(2) and/or Regulation D of the Bankruptcy Code. Expense Reimbursement: In accordance with and subject to the BCA Approval Order (as defined below)Securities Act, the Debtors will pay all reasonably incurred and documented out-of-pocket fees and expenses of all of the attorneys, accountants, other professionals, advisors, and consultants incurred on behalf of the Ad Hoc Group of Unsecured Noteholders and the Ad Hoc Group of Second Lien Noteholders (together, the “Ad Hoc Groups”), whether incurred directly by the relevant Noteholders or on behalf of the Noteholders through the Indenture Trustee, including, (i) in respect of the Ad Hoc Group of Unsecured Noteholders, the fees and expenses of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and PJT Partners Inc., and (ii) in respect of the Ad Hoc Group of Second Lien Noteholders, the fees and expenses of O’Melveny & ▇▇▇▇▇ LLP, ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, Intrepid Financial Partners, L.L.C., and ▇another available exemption from registration.▇. ▇▇▇ ▇▇▇▇▇▇ & Co. (such payment obligations, the “Expense Reimbursement”). Unless otherwise ordered by the Bankruptcy Court, no recipient of any payment hereunder shall be required to file with respect thereto any interim or final fee application with the Bankruptcy Court. The Expense Reimbursement accrued through the date on which the BCA Approval Order is entered shall be paid as promptly as reasonably practicable after such date. Thereafter, the Expense Reimbursement shall be payable by the Debtors on a monthly basis. If the RSA or the Backstop Commitment Agreement is terminated for any reason (other than in connection with an Individual Termination Event), the Debtors will no longer be obligated to pay the Expense Reimbursement in respect of any fees incurred after the date of such termination.