THE TRANSACTIONS REFERRED TO IN THE
FOREGOING CLAUSE (II) ARE HEREIN REFERRED TO AS THE "NEW SHARES ISSUANCE".
THE
EQUITY CANCELLATION AND THE NEW SHARES ISSUANCE ARE HEREIN COLLECTIVELY REFERRED
TO AS THE "CANCELLATION AND ISSUANCE".
(B)
AS CONSIDERATION FOR THE NEW SHARES, BUYER AGREES THAT, UPON THE
CONSUMMATION OF THE CLOSING, THE COMPANY BANKRUPTCY ESTATE SHALL HAVE A FINAL,
NON-APPEALABLE ORDER, INCLUDING THE WAIVER OF BANKRUPTCY CODE SECTION 502(J)
RECONSIDERATION RIGHTS, GRANTING THE COMPANY AN ALLOWED GENERAL UNSECURED CLAIM
IN THE BUYER CASE IN AN AMOUNT EQUAL TO $145 MILLION PLUS INTEREST ON SUCH
AMOUNT FROM AND AFTER THE PETITION DATE OF BUYER'S CASE (THE "BUYER PETITION
DATE") TO THE EXTENT THAT OTHER GENERAL UNSECURED CREDITORS OF BUYER RECEIVE
INTEREST FROM AND AFTER THE BUYER PETITION DATE PURSUANT TO BUYER'S PLAN OF
REORGANIZATION (THE "ALLOWED CLAIM").
THE PARTIES ACKNOWLEDGE AND AGREE THAT
THE ALLOWED CLAIM WILL NOT BE EFFECTIVE UNLESS AND UNTIL THE CLOSING HAS BEEN
CONSUMMATED.
THE ALLOWED CLAIM WILL BE CLASSIFIED AS A GENERAL UNSECURED CLAIM
IN THE PLAN OF REORGANIZATION SUBMITTED TO THE BUYER BANKRUPTCY COURT AND
SUPPORTED BY BUYER IN THE BUYER CASE AND WILL RECEIVE THE SAME TREATMENT IN SUCH
PLAN OF REORGANIZATION AS THE OTHER GENERAL UNSECURED CLAIMS AGAINST BUYER.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE PARTIES
UNDERSTAND AND AGREE THAT UNLESS AND UNTIL THE PLAN BECOMES EFFECTIVE, THE
CLOSING IS CONSUMMATED AND THE TRANSACTIONS CONTEMPLATED HEREBY HAVE BEEN
CONSUMMATED, NOTHING IN THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT SHALL
HAVE, OR SHALL BE DEEMED TO HAVE, CREATED AN ALLOWED CLAIM IN THE BUYER CASE OR
CONSTITUTE AN ADMISSION BY BUYER, THE COMPANY OR ANY OF THEIR AFFILIATES AS TO
THE AMOUNT, IF ANY, OF THE COMPANY'S CLAIM AGAINST THE BUYER BANKRUPTCY ESTATE,
NOR OF BUYER'S CLAIM AGAINST THE COMPANY BANKRUPTCY ESTATE.
THE PARTIES AGREE
THAT FROM THE DATE OF THIS AGREEMENT UNTIL THE CLOSING, THE COMPANY SHALL HAVE
THE RIGHT TO ENTER INTO A FORWARD CONTRACT WITH A THIRD PARTY TO SELL THE
ALLOWED CLAIM (THE "FORWARD CONTRACT", AND THE AGGREGATE CONSIDERATION IN
EXCHANGE FOR THE ALLOWED CLAIM, VALUED AS OF THE DATE OF THE FORWARD CONTRACT,
PROVIDED FOR IN THE FORWARD CONTRACT IS HEREIN REFERRED TO AS THE "FORWARD
PRICE"), PROVIDED THAT THE SETTLEMENT OF ANY SUCH FORWARD CONTRACT SHALL BE
CONTINGENT ON THE CONSUMMATION OF THE CLOSING.
(C)
FROM THE DATE OF THIS AGREEMENT UNTIL THE ENTRY OF THE COMPANY
CONFIRMATION ORDER, BUYER AND THE COMPANY AGREE THAT BUYER, IN ITS SOLE
DISCRETION, SHALL HAVE THE RIGHT TO REVISE SCHEDULE A-1 AND SCHEDULE A-4 TO (I)
DESIGNATE ANY COMPANY AGREEMENT THAT
2
IS NOT AN ASSUMED CONTACT OR A REJECTED CONTRACT AS EITHER AN ASSUMED CONTRACT
OR A REJECTED CONTRACT; IT BEING AGREED THAT ANY COMPANY AGREEMENT THAT IS NOT
SO DESIGNATED SHALL BE DEEMED TO BE A REJECTED CONTRACT AND (II) DESIGNATE ANY
COMPANY AGREEMENT THAT WAS AS OF THE DATE OF THIS AGREEMENT SET FORTH ON
SCHEDULE A-1 OR SCHEDULE A-4, AS APPLICABLE, AS