Common use of Backstop Fee Clause in Contracts

Backstop Fee. The Borrower agrees to pay to each Backstop Lender a non-refundable closing fee (the “Backstop Fee”) in an aggregate amount equal to its pro rata share (based on such Backstop Lender’s percentage commitment of the Commitment Amount on the Closing Date) of 7.50% of the new common stock to be issued by the Borrower or its re-organized or successor company upon its emergence from the Bankruptcy Case in accordance with the Plan (as defined in the RSA), which Backstop Fee shall be fully earned on the entry of the Interim Order and due and payable on the effective date of the Plan (as defined in the RSA); provided, however, that in the event the RSA is terminated, such Backstop Fee shall be payable in cash when the principal amounts outstanding under the DIP Facility come due, in an amount equal to 7.50% of the Maximum Facility Amount; provided, further, that to the extent the Third Borrowing Funding Availability Date does not occur and the Backstop Fee is paid in cash, “Maximum Facility Amount” shall be deemed to exclude the additional commitment amounts that would have otherwise been available had the Third Borrowing Funding Availability Date occurred. Notwithstanding anything in this Section 2.25(c) to contrary, it is acknowledged and agreed that to the extent that the Backstop Fee is paid through the issuance of new common stock pursuant to the Plan (as defined in the RSA), such issuance of common stock shall not dilute any common stock issued by the Borrower or its reorganized or successor company pursuant to (i) any management incentive plan approved by the Bankruptcy Court in the Bankruptcy Cases, or (ii) the Plan (as defined in the RSA) to current holders of the Borrower’s Capital Stock.

Backstop Fee. The Borrower agrees On the basis of the representations and warranties herein contained, but subject to the entry of an order of the Bankruptcy Court approving this Agreement and the exhibits attached hereto, the payment of the fees and expenses provided for herein, and the release and exculpation of the Investors, their affiliates, representatives and advisors from any liability for participation in the transactions contemplated hereby, by the Registration Rights Agreement and the Amended Plan to the fullest extent permitted under applicable law (the “Agreement Order”), the Company shall pay to the Investors, and each Backstop Lender Investor shall have earned as of the date of the payment, a non-refundable closing backstop fee (the “Backstop Fee”) in an aggregate amount equal to its pro rata share (based on such Backstop Lender’s percentage commitment compensate the Investors for the risk of the Commitment Amount on the Closing Date) of 7.50% of the new common stock to be issued by the Borrower or its re-organized or successor company upon its emergence from the Bankruptcy Case in accordance with the Plan (as defined in the RSA), which their undertaking herein. The Backstop Fee shall be fully earned paid in U.S. dollars, by wire transfer of federal (same day) funds to the accounts specified by the Investors to the Company at least 24 hours in advance as follows: (1) $4,375,000 shall be paid, on the first Business Day following the date of the entry of the Interim 3 Agreement Order by the Bankruptcy Court, and due and payable (2) $1,875,000 shall be paid on the effective date of that the Plan Company enters into a definitive agreement for Exit Financing on terms consistent with or more favorable than the terms set forth on Exhibit D hereto (as defined the “Exit Financing Condition”) in the RSA); providedevent that such date occurs prior to December 31, however2007. As provided in Section 10(a)(ii) hereto, in the event that the Company satisfies the Exit Financing Condition, each Investor shall have the right to terminate its Commitment unless the Effective Date has occurred prior to February 28, 2008. As provided in Section 10(a)(iii) hereto, if the Company fails to satisfy the Exit Financing Condition, prior to 3:00 p.m. on December 31, 2007, each Investor shall have the right to terminate its Commitment unless the Company pays the Extension Fee, in which case (i) the Exit Financing Condition shall be waived by each Investor and (ii) each Investor shall have the right to terminate its Commitment unless the Effective Date has occurred prior to March 31, 2008. It is understood that in the event the RSA Agreement Order is terminatedappealed, such and the highest court to which the Agreement Order was appealed issues a final order vacating or reversing in whole or in part the Agreement Order and further orders disgorgement of all or a portion of the Backstop Fee, each of the Investors shall promptly return to the Company its share (based on its Commitment Percentage) of the portion of the Backstop Fee required to be so disgorged. The Backstop Fee shall be payable allocated among the Investors in cash when the principal amounts outstanding under same proportion as their respective Commitment Percentages. If the DIP Facility come dueInvestors receive the Backstop Fee, the Investors shall waive any rights to receive punitive damages in an amount equal to 7.50% connection with this Agreement and the transactions contemplated hereby. If any Investor votes against confirmation of the Maximum Facility Amount; providedAmended Plan in respect of such Investor’s Noteholder Claims and at the time of such vote this Agreement has not been terminated pursuant to Section 10, further, that such Investor shall promptly after submitting its ballot to the extent Company, return the Third Borrowing Funding Availability Date does not occur portion of the Backstop Fee, and any Extension Fee (as defined below), paid to such Investor. Except as set forth herein, the Backstop Fee and any Extension Fee will be nonrefundable when paid. Each Investor who is paid in cash, “Maximum Facility Amount” entitled to cast a ballot on the Amended Plan shall be deemed to exclude the additional commitment amounts that would have otherwise been available had the Third Borrowing Funding Availability Date occurred. Notwithstanding anything in this Section 2.25(c) to contrary, it is acknowledged and agreed that provide copies of such ballots to the extent that Company and the Backstop Fee is paid through Committee within 5 days after the issuance of new common stock pursuant to the Plan (as defined in the RSA), such issuance of common stock shall not dilute any common stock issued by the Borrower or its reorganized or successor company pursuant to (i) any management incentive plan approved by the Bankruptcy Court in the Bankruptcy Cases, or (ii) the Plan (as defined in the RSA) to current holders of the Borrower’s Capital StockVoting Deadline.