right, but not the obligation,
to make arrangements for one or more of the Commitment Parties (other than any
Defaulting Commitment Party) (such Commitment Parties, the "Replacement
Commitment Parties") to purchase all or any portion of the Available Commitment
(such purchase, a "Commitment Party Replacement") in such amounts, and allocated
among the Replacement Commitment Parties, as may be agreed by all of the
Replacement Commitment Parties, as follows (and otherwise on the terms and
subject to the conditions set forth in this Agreement):
(i)
With respect to Available Exchange
Commitment: by (A) reducing the Commitment Amount (and, dollar for dollar, the
Exchange Amount) of the Defaulting Commitment Party and (B) (1) increasing the
Commitment Amount of the Replacement Commitment Parties in an aggregate amount
equal to the amount of the amount of such reduction of the Defaulting Commitment
Party's Commitment Amount pursuant to clause (A) and (2) at the option of the
Replacement Commitment Parties, increasing the Exchange Amount of the
Replacement Commitment Parties in an aggregate amount up to the amount of the
amount of such reduction of the Defaulting Commitment Party's Exchange Amount
pursuant to clause (A) (but, with respect to the foregoing clause (2), only to
the extent that each applicable Replacement Commitment Party holds 1.25 Lien
Notes Claims sufficient to purchase, and is otherwise capable of purchasing,
Exchange Shares in the Rights Offering pursuant to Section 2.2(a)(i) and
Section 2.2(a)(ii) with respect to such increase in its Exchange Amount); and
(ii)
With respect to Available Backstop
Commitment: by (A) reducing the Commitment Amount (and, on a proportional basis,
the Commitment Premium and Termination Fee) of the Defaulting Commitment Party
and (B) increasing the Commitment Amount (and, on a proportional basis, the
Commitment Premium and Termination Fee) of the Replacement Commitment Parties in
an aggregate amount equal to the amount of the reduction of the Defaulting
Commitment Party's Commitment Amount (and Commitment Premium and Termination
Fee) pursuant to clause (A).
If a Commitment Party Default occurs, the Outside Date shall be delayed to the
extent necessary (and only to the extent necessary) to allow for the Commitment
Party Replacement to be completed within the Commitment Party Replacement
Period.
(b)
Notwithstanding anything in this Agreement
to the contrary, if a Commitment Party is a Defaulting Commitment Party (and
regardless of whether or not such Defaulting Commitment Party's Commitment
Premium and/or Termination Fee were reduced to
20
$0 pursuant to Section 2.3(a)), it shall not be entitled to any of the
Commitment Premium, Termination Fee, or expense reimbursement applicable to such
Defaulting Commitment Party (including the Expense Reimbursement) or
indemnification provided, or to be provided, under or in connection with this
Agreement (and if (x) the Closing occurs notwithstanding such a default with
respect to a Commitment Party, and (y) the amount funded in the Rights Offering
(including the purchase of Unsubscribed Shares hereunder) is less than the
Aggregate Commitment Amount because of the Commitment Party Default of such
Defaulting Commitment Party, then the aggregate Commitment Premium payable