and
agreements contained herein, the parties hereby agree as follows:
1.
Definitions.
(a)
The Original Agreement shall be amended to add the following
capitalized terms defined in this Amendment thereto:
"Closing Date Standby Purchase Shares" is defined in Section 2.1, as amended by
the First Amendment.
"First Amendment" means the First Amendment to Standby Purchase Agreement, dated
as of December 31, 2009, by and among the Company, Paulson and the Standby
Purchasers.
"Original Agreement" is defined in the Recitals of the First Amendment.
"Post Effective Allowed Claims" is defined in the Recitals of the First
Amendment.
"Post Effective Standby Purchase" is defined in Section 2.1, as amended by the
First Amendment.
"Post Effective Standby Purchase Shares" is defined in Section 2.1, as amended
by the First Amendment.
"Post Effective Closing" is defined in Section 2.1, as amended by the First
Amendment.
(b)
The following terms defined in the Original Agreement are hereby
amended and restated in full as follows:
"Agreement" means the Standby Purchase Agreement, dated as of November 18, 2009
by and among the Company and the Standby Purchasers, as amended by the First
Amendment as may be further amended or modified.
"Subscription Price" means $17.3333 per share, which is the per share
subscription price for the New Common Stock in each of the Plan Election, the
Standby Purchase and the Post Effective Standby Purchase, which amount is equal
to: (i) $260,000,000 divided by; (ii) the aggregate number of shares of New
Common Stock to be
2
issued and outstanding pursuant to the Plan on the Closing Date, which number of
shares is 15,000,013 and includes both the Closing Date Standby Purchase Shares
and the Post Effective Standby Purchase Shares.
2.
Standby Commitment and Purchase.
Section 2 of the Original
Agreement is hereby amended and restated in full as follows:
"2.1
Standby Commitment and Purchase.
(A)
PROMPTLY AFTER THE PLAN ELECTION DEADLINE, PAULSON SHALL NOTIFY
THE COMPANY IN WRITING AS TO (I) THE AMOUNT OF CLAIMS OWNED OF RECORD AND
BENEFICIALLY BY PAULSON, EACH STANDBY PURCHASER AND THEIR RESPECTIVE AFFILIATES
AND (II) THE CLAIMS FOR WHICH PAULSON, EACH STANDBY PURCHASER AND THEIR
RESPECTIVE AFFILIATES HAVE SIGNED A CONFIRMATION TO PURCHASE SUCH CLAIMS, EACH
AS OF THE PLAN ELECTION DEADLINE.
(B)
PROMPTLY AFTER THE PLAN ELECTION DEADLINE, THE COMPANY SHALL
NOTIFY EACH STANDBY PURCHASER IN WRITING AS TO EACH OF THE FOLLOWING WITH
RESPECT TO ONLY THE CLASS 3 HOLDERS OF SECURED CLAIMS AND THE CLASS 4 HOLDERS OF
UNSECURED NOTE CLAIMS: (I) THE AGGREGATE NUMBER OF CASH-OUT SHARES, (II) THE
AGGREGATE NUMBER OF SHARES OF NEW COMMON STOCK TO BE ISSUED TO THE STANDBY
PURCHASERS IN THEIR CAPACITY AS CLAIM 3 HOLDERS AND CLAIM 4 HOLDERS, (III) THE
AGGREGATE NUMBER OF RETAINED SHARES, (IV) THE AGGREGATE NUMBER OF STANDBY
PURCHASE SHARES (THE "CLOSING DATE STANDBY PURCHASE SHARES"), (V) THE NUMBER OF
CLOSING DATE STANDBY PURCHASE SHARES TO BE PURCHASED BY EACH STANDBY PURCHASER
AND ITS RESPECTIVE STANDBY PERCENTAGE, AND (VI) THE AGGREGATE SUBSCRIPTION PRICE
PAYABLE BY EACH STANDBY