Common use of Commitment Premium Clause in Contracts

Commitment Premium. (i) On the basis of the representations and warranties herein contained, on the Effective Date the Company shall pay to the Non-Defaulting Backstop Purchasers an aggregate amount equal to $12,425,000 (the “Commitment Premium”) to compensate the Backstop Purchasers for this equity commitment and the related costs (including the opportunity costs) incurred hereby, subject to the entry of the Approval Order. The Commitment Premium shall be paid in U.S. dollars, by wire transfer of immediately available funds to the accounts specified by the Backstop Purchasers to the Company (such accounts to be provided no less than two Business Days prior to the date of such payment), provided, however, that no Commitment Premium will be payable to a Backstop Purchaser that is in material breach of its obligations under this Agreement, including a Defaulting Backstop Purchaser. The Commitment Premium shall be allocated among and paid to each Non-Defaulting Backstop Purchaser in accordance with its Commitment Percentage (as such Commitment Percentage may have been adjusted or reallocated pursuant to this Agreement). The Commitment Premium will be nonrefundable when paid. (ii) Subject to the entry of the Approval Order, the Company shall pay to the Non-Defaulting Backstop Purchasers the Commitment Premium in U.S. dollars, by wire transfer of immediately available funds to the accounts specified by the Backstop Purchasers to the Company (such accounts to be provided no less than two Business Days prior to the date of such payment) within two Business Days after the earlier of: (A) the termination of this Agreement, if this Agreement is terminated for any reason by any person other than pursuant to Section 10(d)(ii); or (B) the entry of an order by the Bankruptcy Court approving an Alternative Transaction, if none of the Backstop Purchasers is in material breach of its obligations under this Agreement (other than (x) a breach by a Defaulting Backstop Purchaser if the Non-Defaulting Backstop Purchasers or any other Persons have agreed to or arranged for the purchase of all the Default Shares or (y) a breach by a Backstop Purchaser of its obligation pursuant to Section 6 in connection with such Backstop Purchaser participating or seeking to participate (an “Alternative Financing Breach”) in a capital raising transaction that does not contemplate or is inconsistent with the Rights Offering (an “Alternative Transaction”)), and provided that in connection with an Alternative Financing Breach the Commitment Premium shall only be payable to those Backstop Purchasers not then in breach and only based on such Backstop Purchaser’s Commitment Percentage prior to reallocating the Commitment Percentage of the breaching Backstop Purchasers, unless those Backstop Purchasers not then in breach have agreed to such reallocation with the Company (regardless of whether the Company or a Backstop Purchaser terminates this Agreement). The Commitment Premium shall be allocated between and paid to each Non-Defaulting Backstop Purchaser in accordance with its Commitment Percentage (as such Commitment Percentage may have been adjusted or reallocated pursuant to this Agreement). The Commitment Premium will be nonrefundable when paid. (iii) For the avoidance of doubt, if the Commitment Premium is paid pursuant to Section 2(b)(i), it shall not be payable pursuant to Section 2(b)(ii), and if the Commitment Premium is paid pursuant to Section 2(b)(ii), it shall not be payable pursuant to Section 2(b)(i).

Commitment Premium. (i) On the basis of the representations and warranties herein contained, on the Effective Date the Company shall pay to the Non-Defaulting Backstop Purchasers an aggregate amount equal to $12,425,000 (the “Commitment Premium”) to compensate the Backstop Purchasers for this equity commitment and the related costs (including the opportunity costs) incurred hereby, subject to the entry of the Approval Order. The Commitment Premium shall be paid in U.S. dollars, by wire transfer of immediately available funds to the accounts specified by the Backstop Purchasers to the Company (such accounts to be provided no less than two Business Days prior to the date of such payment), provided, however, that no Commitment Premium will be payable to a Backstop Purchaser that is in material breach of its obligations under this Agreement, including a Defaulting Backstop Purchaser. The Commitment Premium shall be allocated among and paid to each Non-Defaulting Backstop Purchaser in accordance with its Commitment Percentage (as such Commitment Percentage may have been adjusted or reallocated pursuant to this Agreement). The Commitment Premium will be nonrefundable when paid. (ii) Subject to the entry of the Approval Order, the Company shall pay to the Non-Defaulting Backstop Purchasers the Commitment Premium in U.S. dollars, by wire transfer of immediately available funds to the accounts specified by the Backstop Purchasers to the Company (such accounts to be provided no less than two Business Days prior to the date of such payment) within two Business Days after the earlier of: (A) the termination of this Agreement, if this Agreement is terminated for any reason by any person other than pursuant to Section 10(d)(ii); or (B) the entry of an order by the Bankruptcy Court approving an Alternative Transaction, if none of the Backstop Purchasers is in material breach of its obligations under this Agreement (other than (x) a breach by a Defaulting Backstop Purchaser if the Non-Defaulting Backstop Purchasers or any other Persons have agreed to or arranged for the purchase of all the Default Shares or (y) a breach by a Backstop Purchaser of its obligation pursuant to Section 6 in connection with such Backstop Purchaser participating or seeking to participate (an “Alternative Financing Breach”) in a capital raising transaction that does not contemplate or is inconsistent with the Rights Offering (an “Alternative Transaction”)), and provided that in connection with an Alternative Financing Breach the Commitment Premium shall only be payable to those Backstop Purchasers not then in breach and only based on such Backstop Purchaser’s Commitment Percentage prior to reallocating the Commitment Percentage of the breaching Backstop Purchasers, unless those Backstop Purchasers not then in breach have agreed to such reallocation with the Company (regardless of whether the Company or a Backstop Purchaser terminates this Agreement). The Commitment Premium shall be allocated between and paid to each Non-Non- Defaulting Backstop Purchaser in accordance with its Commitment Percentage (as such Commitment Percentage may have been adjusted or reallocated pursuant to this Agreement). The Commitment Premium will be nonrefundable when paid. (iii) For the avoidance of doubt, if the Commitment Premium is paid pursuant to Section 2(b)(i), it shall not be payable pursuant to Section 2(b)(ii), and if the Commitment Premium is paid pursuant to Section 2(b)(ii), it shall not be payable pursuant to Section 2(b)(i).