Common use of The Backstop Commitment Clause in Contracts

The Backstop Commitment. (a) On the basis of the representations and warranties contained herein, but subject to the conditions set forth in Section 11 hereof and the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(i) hereof, and pursuant to Sections 25 and 26 hereof, each Investor agrees to subscribe for in accordance with the Plan and purchase on the Effective Date (the “Closing Date”), and the Company agrees to sell and issue, at a purchase price per Unit equal to the Subscription Purchase Price, (i) such Investor’s Subscription Units and (ii) a number of Residual Units calculated by multiplying (x) such Investor’s Backstop Percentage times (y) the aggregate number of Residual Units (collectively, the “Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) The Company shall pay or reimburse each Investor for its Transaction Expenses; provided, that the Company shall not be responsible for any fees and expenses of legal, accounting and financial advisors and management consultants that are engaged by the Investors after the date hereof unless the Company consents to such payment or reimbursement, such consent not to be unreasonably withheld. The Transaction Expenses shall be paid upon the earlier of the Closing Date and termination of this Equity Commitment Agreement in accordance with Section 19 hereof, except for termination resulting from the breach by such Investor of any representation, warranty or covenant set forth herein. The filing fees, if any, required by the HSR Act or other Antitrust Laws shall be paid by the Company when filings under the HSR Act are made. For the avoidance of doubt, this Section 3(b) shall not affect the Company’s obligation to pay the fees and expenses of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (iv) The Blackstone Group pursuant to the Bankruptcy Court’s order approving debtor-in-possession financing and the DIP Financing Documents (as defined therein).

The Backstop Commitment. (a) On the basis of the representations and warranties contained herein, but subject Subject to the conditions set forth in Section 11 hereof and the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(i) hereof, and pursuant to Sections 25 and 26 hereof7, each Investor agrees Backstop Party agrees, severally (and not jointly or jointly and severally), to subscribe for in accordance with the Plan and purchase on the Effective Date (the “Closing Date”), and the Company agrees to cause New Tronox to sell and issue, at a purchase price per Unit equal to the Subscription Purchase Price, (i) such Investor’s Subscription Units and (ii) a number of Residual Units calculated by multiplying (x) such Investor’s Backstop Percentage times (y) the aggregate number Purchase Price therefor, such Backstop Party’s Commitment Percentage of Residual Units Unsubscribed Shares as of the Expiration Time (collectively, the “Backstop Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) Subject to the entry of a final, non-appealable Confirmation Order (as defined below) in accordance with the Term Sheet, New Tronox will pay to the Backstop Parties an aggregate backstop commitment fee of 403,846 shares of New Common Stock, representing four percent (4%) of the Offered Shares (the “Backstop Fee”), distributed in accordance with the Commitment Percentage, to compensate each such Backstop Party for the risk of its undertakings herein. The Company Backstop Fee will be earned upon the execution of this Agreement, will be payable on the Effective Date, whether or not any Unsubscribed Shares are purchased pursuant to the Backstop Commitment and will be nonrefundable when paid. Notwithstanding the foregoing, if the Effective Date should not occur and this Agreement is terminated in accordance with the provisions hereof, (i) the Backstop Fee shall pay or reimburse each Investor for its Transaction Expenses; providedbe paid in cash on the date of such termination, that if terminated by the Company, and within two (2) Business Days if terminated by the Backstop Parties, and shall be an amount equal to four percent (4%) of the Purchase Price of the Offered Shares (i.e., $4.2 million), and (ii) the full amount of the Backstop Fee and the Extension Fee (as defined below), if applicable, shall constitute administrative expenses of the Company under section 364(c)(1) of the Bankruptcy Code. In addition to the Backstop Fee, the Backstop Parties shall be entitled to an extension fee (the “Extension Fee”) equal to two percent (2%) of the Purchase Price of the Offered Shares (i.e., $2.1 million), in the event the Extension Event occurs. The Extension Fee shall be payable in cash upon delivery of the notice with respect to the Extension Event. The Backstop Parties agree that they shall not be responsible for entitled to any fee or payment other `than as provided in this Section 2(b) and Section 2(c) in connection with the Backstop Commitment or this Agreement and hereby irrevocably waive all rights to other fees and payments from any Debtor, any of their respective Affiliates or New Tronox in connection with the Backstop Commitment. (c) Subject to the procedures set forth in the work fee order (but not the fee and expense cap set forth therein), the Company will reimburse or pay, as the case may be, the reasonable and documented out-of-pocket expenses of the Backstop Parties, including the reasonable and documented fees and expenses of legalBroadpoint Capital, accounting and Inc., financial advisors and management consultants that are engaged by advisor to the Investors after the date hereof unless the Company consents to such payment or reimbursementBackstop Parties, such consent not to be unreasonably withheld. The Transaction Expenses shall be paid upon the earlier of the Closing Date and termination of this Equity Commitment Agreement in accordance with Section 19 hereof, except for termination resulting from the breach by such Investor of any representation, warranty or covenant as set forth herein. The filing feesin its engagement letter attached as Exhibit D, if any, required by the HSR Act or other Antitrust Laws shall be paid by the Company when filings under the HSR Act are made. For the avoidance of doubt, this Section 3(b) shall not affect the Company’s obligation to pay the fees and expenses of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP LLP, legal advisor to the Committee and the Backstop Parties and reasonable and documented fees and expenses of any other professionals reasonably retained by the Backstop Parties in connection with the transactions contemplated hereby (ivcollectively, “Transaction Expenses”); provided, that the Company shall not be responsible for the fees or expenses of more than one financial advisor or more than one firm of counsel, together with appropriate local counsel to the Committee and the Backstop Parties. Such reimbursement or payment shall be made by the Company within five (5) The Blackstone Group pursuant Business Days of presentation of an invoice approved by the Committee and/or the Backstop Parties, as the case may be, without Bankruptcy Court review or further Bankruptcy Court order (but subject to any conditions imposed by the Bankruptcy Court), whether or not the transactions contemplated hereby are consummated, provided, however, that any payment of a fee to the Backstop Parties’ financial advisor shall be conditioned upon the consummation of the transactions contemplated by this Agreement, in which case payment of such fee shall be made on the Effective Date. These obligations are in addition to, and do not limit, the Company’s order approving debtor-in-possession financing obligations under Section 8. The provision for the payment of the Transaction Expenses is an integral part of the transactions contemplated by this Agreement, and without this provision, the Backstop Parties would not have entered into this Agreement and shall constitute an administrative expense of the Company under section 364(c)(1) of the Bankruptcy Code. (d) As promptly as practicable, but in any event at least five (5) Business Days prior to the Effective Date, the Company will provide a Purchase Notice or a Satisfaction Notice to the Backstop Parties as provided above, setting forth a true and accurate determination of the aggregate number of Unsubscribed Shares, if any; provided, that on the Effective Date the Backstop Parties will purchase, and the DIP Financing Documents Company will sell, only such number of Unsubscribed Shares as are listed in the Purchase Notice, without prejudice to the rights of the Backstop Parties to seek later an upward or downward adjustment if the number of Unsubscribed Shares in such Purchase Notice is inaccurate. (e) Delivery of the Unsubscribed Shares will be made by the Company to the accounts of the Backstop Parties (or to such other accounts as defined therein)the Backstop Parties may designate in writing to the Company at least two Business Days prior to the Effective Date) at 9:00 a.m., New York City time, on the Effective Date against payment of the aggregate Purchase Price for the Unsubscribed Shares by wire transfer at least one (1) Business Day prior to the Effective Date of federal (same day) funds to the account specified by the Company to the Backstop Parties at least three (3) Business Days in advance. (f) All Unsubscribed Shares will be delivered with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by the Company to the extent required under the Confirmation Order or applicable law. (g) The documents to be delivered on the Effective Date by or on behalf of the parties hereto and the Unsubscribed Shares will be delivered at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇. (h) Notwithstanding anything to the contrary in this Agreement, the Backstop Parties, in their sole discretion, may designate in writing at least two (2) Business Days prior to the Effective Date that some or all of the Shares be issued in the name of, and delivered to, one or more of their affiliates or to any other person or entity and provide all information reasonably requested by the Company in connection therewith. (i) No Backstop Party shall have any liability for the Backstop Commitment of any other Backstop Party.

The Backstop Commitment. (a) On the basis of the representations and warranties contained herein, but subject to the terms and conditions set forth in Section 11 hereof and the utilization hereof, including entry of the proceeds of Backstop Commitment Agreement Approval Order, each Backstop Party agrees, severally and not jointly, to fully exercise all Subscription Rights that are issued to it pursuant to the Rights Offering solely as set forth in Section 9(i) hereofand the Plan, and duly and timely purchase all Rights Offering Shares issuable to it pursuant to Sections 25 and 26 hereofsuch exercise, each Investor agrees to subscribe for in accordance with the Plan Rights Offering Procedures and purchase the Plan; provided that any Defaulting Backstop Party shall be liable to each non-Defaulting Backstop Party, the Company and Reorganized Chesapeake as a result of a Backstop Party Default by such Defaulting Backstop Party hereunder. In connection with the Rights Offering, and on and subject to the terms and conditions hereof, including entry of the Confirmation Order, each Backstop Party agrees, severally and not jointly (in accordance with its Backstop Commitment Percentage), to purchase, and Reorganized Chesapeake shall sell to such Backstop Party (or Related Purchaser), on the Effective Closing Date (for the “Closing Date”), and the Company agrees to sell and issue, at a purchase price per Unit equal to the Subscription applicable aggregate Per Share Purchase Price, (a) the number of Unsubscribed Shares equal to (i) such InvestorBackstop Party’s Subscription Units and Backstop Commitment Percentage, multiplied by (ii) a number of Residual Units calculated by multiplying (x) such Investor’s Backstop Percentage times (y) the aggregate number of Residual Units Unsubscribed Shares and (collectivelyb) the number of Direct Investment Shares equal to (i) such Backstop Party’s Backstop Commitment Percentage, multiplied by (ii) the aggregate number of Direct Investment Shares (such obligations, the “Backstop Commitment”), in each case rounded among the Backstop Parties solely to avoid fractional shares as the Required Backstop Parties may determine in their sole discretion (provided that in no event shall such rounding reduce the aggregate commitment of the Backstop Parties). Subject Notwithstanding anything to the foregoingcontrary, each Investor shall, the Backstop Parties shall not be required to exercise their Subscription Rights or shall cause its Affiliates to, elect to receive and exercise all of their Direct Investment Rights until the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) The Company shall pay or reimburse each Investor for its Transaction Expenses; provided, date that the Company shall not be responsible for any fees and expenses of legal, accounting and financial advisors and management consultants that are engaged by the Investors after the date hereof unless the Company consents to such payment or reimbursement, such consent not to be unreasonably withheld. The Transaction Expenses shall be paid upon the earlier of the Closing Date and termination of this Equity Commitment Agreement in accordance with Section 19 hereof, except for termination resulting from the breach by such Investor of any representation, warranty or covenant set forth herein. The filing fees, if any, required by the HSR Act or other Antitrust Laws shall be paid by the Company when filings under the HSR Act are made. For the avoidance of doubt, this Section 3(bBackstop Parties reasonably agree is approximately three (3) shall not affect the Company’s obligation to pay the fees and expenses of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (iv) The Blackstone Group pursuant Business Days prior to the Bankruptcy Court’s order approving debtor-in-possession financing and the DIP Financing Documents (as defined therein)Plan Effective Date.

The Backstop Commitment. (a) On the basis of the representations and warranties contained herein, but subject to the terms and conditions set forth in Section 11 hereof and the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(i) hereof, and pursuant to Sections 25 and 26 hereofherein, each Investor agrees agrees, severally and not jointly, to subscribe for in accordance with the Plan and purchase on the Effective Date (the “Closing Date”), and the Company agrees to sell and issue, at a purchase price the Purchase Price per Unit equal to Note, the Subscription Purchase Price, principal amount of Unsubscribed Notes (i) such the “Investor’s Subscription Units and (ii) a number of Residual Units Unsubscribed Notes”), calculated by multiplying (x) such Investor’s Backstop Percentage times (y) the aggregate number of Residual Units Unsubscribed Notes (collectively, the “Backstop Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) [Reserved]. (c) On the basis of the representations and warranties herein contained, but subject to the terms and conditions set forth herein, the Company will make an aggregate payment to all Investors that execute this Commitment Agreement equal to the greater of (x) $15,000,000 and (y) 6.0% of the Amount, which amount shall be payable on the Effective Date (the “Backstop Payment”) to compensate each Investor for the risk of its undertaking pursuant to this Commitment Agreement. Fifty percent of the aggregate Backstop Payment shall be payable in cash and fifty percent of the aggregate Backstop Payment shall be payable in Common Shares based upon the Conversion Price; provided, however, that an Investor may elect to receive the full amount of its Backstop Payment in Common Shares by notice delivered to the Company in accordance with Section 13 not later than the Escrow Date. The percentage of the Backstop Payment allocated to each Investor is as set forth on Schedule 1(h) hereto. The Backstop Shares will be delivered to the Investors on the Effective Date in accordance with written instructions specified by each Investor to the Company at least 24 hours in advance. The cash portion of the Backstop Payment will be made by wire transfer of immediately available funds on the Effective Date. The Backstop Payment will be payable whether or not there are any Unsubscribed Notes and will be fully earned and nonrefundable when paid on the Effective Date; provided, however, that in no event shall the Investors receive both the Backstop Payment and the Termination Payment. (d) The Company shall pay an aggregate termination payment to all Investors in the amounts set forth below (each a “Termination Payment”) upon the earlier to occur of the Effective Date or reimburse each Investor for its Transaction Expenses; providedthe effective date of any alternative transaction or other plan, that as applicable if this Commitment Agreement is terminated pursuant to Sections 12(a)(iii), 12(a)(iv), 12(a)(v), 12(a)(vi), Sections 12(b)(i), 12(b)(ii), 12(b)(iii), 12(b)(iv), 12(b)(v), 12(b)(vii), 12(b)(viii), 12(b)(ix), 12(b)(x)(other than with respect to the Company shall not be responsible for any fees and expenses conditions contained in Section 7(a)), 12(b)(xi), or Sections 12(c)(ii), 12(c)(iii), 12(c)(iv), or 12(c)(v): (i) if termination of legal, accounting and financial advisors and management consultants that are engaged by the Investors this Commitment Agreement occurs after the date hereof unless on which the Company consents to such payment Termination Payment is approved by the U.S. Bankruptcy Court but on or reimbursement, such consent not to be unreasonably withheld. The Transaction Expenses shall be paid upon before the earlier of (x) the Closing Date date on which this Commitment Agreement is approved by the U.S. Bankruptcy Court and (y) the later date on which an alternative transaction is approved by the U.S. Bankruptcy Court or Canadian Court (the “Approval Date”), the Termination Payment payable to all Investors shall be an aggregate amount equal to the lesser of (x) $15,000,000 and (y) 5% of the capital raised in any alternative transaction, but not less than $7,500,000; (ii) if termination of this Equity Commitment Agreement occurs after the Approval Date but on or before October 15, 2010, the Termination Payment payable to all Investors shall be an aggregate amount equal to $15,000,000; or (iii) if termination of this Commitment Agreement occurs after October 15, 2010, the Termination Payment payable to all Investors shall be an aggregate amount equal to the greater of (x) $15,000,000 and (y) 6% of the Amount as in effect on October 15, 2010. (iv) The percentage of the aggregate Termination Payment allocated to each Investor is as set forth on Schedule 1(h). Notwithstanding anything to the contrary herein, at an Investor’s election by notice delivered to the Company in accordance with Section 19 hereof13 not less than two (2) Business Days before the date on which the Termination Payment is due and payable, except such Investor’s percentage of the Termination Payment shall be payable on the Effective Date in Common Shares rather than cash. The Termination Payment will be fully earned and non-refundable when paid. The provision for termination resulting from the breach making of the Termination Payment is an integral part of the transactions contemplated by this Commitment Agreement, and without this provision the Investors would not have entered into this Commitment Agreement and shall, subject to the approval of the entry of the order(s) approving the Termination Payment, constitute an allowed administrative expense of the Company under section 364(c)(1) of the Bankruptcy Code that is junior to all superpriority and administrative claims arising under the Final Order (1) Approving Postpetition Financing; (2) Authorizing Use of Cash Collateral; (3) Granting Liens and Providing Superpriority Expense Status; (4) Granting Adequate Protection; and (5) Modifying the Automatic Stay (dated June 4, 2009 and conformed on June 16, 2009, the postpetition financing approved thereby, the “Bowater DIP Agreement”). (e) Subject to the entry of the orders approving the Termination Payment and the reimbursement of Transaction Expenses, the Company will reimburse or pay, as the case may be, on the Approval Date and on a monthly basis thereafter until the Effective Date, the documented fees and out-of-pocket expenses reasonably incurred by or on behalf of each Investor payable to Shearman & Sterling LLP, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and Torys LLP and up to $50,000 in the aggregate per Investor for fees and out-of-pocket expenses incurred by one counsel and one Canadian counsel to an Investor with respect to the transactions contemplated hereby and all U.S. Bankruptcy Court, Canadian Court and other judicial and regulatory proceedings related to such Investor transactions arising on or before the Effective Date (collectively, “Transaction Expenses”) within ten (10) days of any representationpresentation of an invoice, warranty without review by the U.S. Bankruptcy Court or covenant set forth hereinthe Canadian Court or further U.S. Bankruptcy Court order or Canadian Court order. The filing fees, if any, required by the HSR Act or other Antitrust Laws shall be paid by the Company when filings under the HSR Act are made. (f) As promptly as practicable, but in any event at least five (5) Business Days prior to the Escrow Date, the Company will provide a Purchase Notice or a Satisfaction Notice to each Investor as provided above, setting forth a true and accurate determination of the aggregate number of such Investor’s Unsubscribed Notes, if any; provided, that on the Effective Date such Investor will purchase, and the Company will sell, only such number of such Investor’s Unsubscribed Notes as are listed in the Purchase Notice, without prejudice to the rights of such Investor to seek later an upward or downward adjustment if the number of such Investor’s Unsubscribed Notes set forth in such Purchase Notice is inaccurate. (g) Delivery of each Investor’s Unsubscribed Notes will be made by the Company to the respective accounts of the Investors (or to such other accounts as an Investor may designate) as early as practicable on the Effective Date against payment of the aggregate Purchase Price for such Investor’s Unsubscribed Notes by wire transfer of U.S. federal (same day) funds to the account specified by the Company to the Escrow Agent and each Investor at least 24 hours in advance of the Effective Date. (h) All of the Investors’ Unsubscribed Notes will be delivered with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by the Company to the extent required under the Confirmation Order, the Sanction Order or applicable law. For The Notes issued to the avoidance of doubt, this Section 3(b) Investors shall not affect the Company’s obligation be subject to pay the fees and expenses of any withholding. (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (iv) The Blackstone Group documents to be delivered on the Escrow Date by or on behalf of the parties hereto will be delivered to the Company pursuant to Section 13. (j) In the Bankruptcy Courtevent that any Investor defaults on its obligation to purchase its Backstop Percentage of the Unsubscribed Notes, any payment otherwise allocable hereunder to such Defaulting Investor shall be re-allocated to the Investor(s) who assume such Defaulting Investor’s order approving debtor-in-possession financing and the DIP Financing Documents obligations hereunder on a pro rata basis, or if such obligation is not assumed by any Investor, to any third parties which assumed such Defaulting Investor’s obligations hereunder (as defined thereinprovided in Section 24 below) on a pro rata basis. (k) Notwithstanding anything to the contrary in this Commitment Agreement, each Investor, in its sole discretion, may designate that some or all of the Unsubscribed Notes be issued in the name of and delivered to, one or more of its Affiliates or any other third party that is able to make the representations set forth in Section 4(f), Section 4(g) and Section 4(h) hereof. (l) No Investor shall have any liability for the Backstop Commitment of any other Investor. (m) In the event that the Effective Date does not occur on or before the Outside Date, the Company shall return to each Investor no later than five (5) Business Days after the Outside Date the full amount of the Purchase Price paid by such Investor, including in respect of such Investor’s Unsubscribed Shares.

The Backstop Commitment. (a) On the basis of the representations and warranties contained hereinherein contained, but subject to the conditions set forth in Section 11 hereof and 7, (i) the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(i) hereof, and pursuant to Sections 25 and 26 hereof, each Investor agrees to subscribe for in accordance with the Plan and purchase on the Effective Date (the “Closing Date”)purchase, and the Company agrees to sell and issue, at a purchase price per Unit equal the aggregate Purchase Price therefor, all Unsubscribed Shares as of the Expiration Time (subject to the Subscription Purchase PriceShare Cap less the number of Investor Rights Offering Shares purchased by the Investor), (i) such Investor’s Subscription Units and (ii) a number the Investor agrees to purchase (or to exercise the Rights for), and the Company agrees to issue and sell, all of Residual Units calculated the Investor Rights Offering Shares by multiplying (x) such Investor’s Backstop Percentage times payment of the aggregate Purchase Price therefor at the Closing Date or (y) by exercise of Rights issued on the aggregate number of Residual Units (collectively, the “Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims Owned Shares in accordance with the Planterms of the Rights Offering (except that, in either case, the Investor may pay the aggregate Purchase Price for the Investor Rights Offering Shares by transfer of funds from the Escrow) (the commitments set forth in (i) and (ii) above, together, the “Backstop Commitment”). (b) The Company shall pay or reimburse each Investor for its Transaction Expenses; providedOn the basis of the representations and warranties herein contained, that but subject to the Agreement Order (as defined herein) becoming a Final Agreement Order (as defined herein), the Company shall not will pay to the Investor a commitment fee of $100 million (the “Commitment Fee”). Such Commitment Fee will be responsible for any fees and expenses of legal, accounting and financial advisors and management consultants that are engaged by paid in U.S. dollars on the Investors Business Day after the date hereof unless the Company consents to such payment or reimbursement, such consent not to be unreasonably withheldAgreement Order becomes a Final Agreement Order. The Transaction Expenses shall be paid upon the earlier of the Closing Date and termination of this Equity Commitment Agreement in accordance with Section 19 hereof, except for termination resulting from the breach by such Investor of any representation, warranty or covenant set forth Extension Fee (as defined herein. The filing fees), if any, will be paid by the Company as provided in Section 10(b)(ii). Payment of the Commitment Fee and the Commitment Extension Fee, if any, will be made by wire transfer of federal (same day) funds to the account specified by the Investor to the Company at least 24 hours in advance. The Commitment Fee and the Commitment Extension Fee, if any, will be nonrefundable when paid. Simultaneously with the Agreement Order becoming a Final Agreement Order, and thereafter on demand, the Company will reimburse or pay, as the case may be, the standard fees and out-of-pocket expenses of one law firm retained by the Investor for purposes of the transactions contemplated hereby and incurred since January 1, 2006 within 10 days of presentation of an invoice approved by the Investor, without Bankruptcy Court review or further Bankruptcy Court order. The filing fee required by the HSR Act or other Antitrust Laws (as defined herein) shall be paid by the Company on behalf of the Investor when filings under the HSR Act are made. For the avoidance of doubtThese obligations are in addition to, this Section 3(b) shall and do not affect limit, the Company’s obligation obligations under Section 8. (c) The Company will provide a Purchase Notice or a Satisfaction Notice to pay the fees Investor as provided above, setting forth a true and expenses accurate determination of the aggregate number of Unsubscribed Shares, if any; provided, that on the Closing Date the Investor will purchase, and the Company will sell, only such number of Unsubscribed Shares as are listed in the Purchase Notice, without prejudice to the rights of the Investor to seek later an upward or downward adjustment if the number of Unsubscribed Shares in such Purchase Notice is inaccurate. (d) Delivery of the Unsubscribed Shares and, to the extent not previously issued in the Rights Offering, delivery of the Investor Rights Offering Shares, will be made by the Company to the account of the Investor (or to such other accounts as the Investor may designate) at 9.00 a.m., New York City time, on the next Business Day following the Determination Date (the “Closing Date”) against payment of the aggregate Purchase Price for the Shares by wire transfer of federal (same day) funds to the account specified by the Company to the Investor at least 24 hours in advance, which may be satisfied by transfer of like funds from the Escrow. (e) All Investor Additional Shares will be delivered with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by the Company. The Investor Rights Offering Shares will (i) be issued by the Company promptly, but not later than the Closing Date or (ii) if issued pursuant to the exercise of Rights, be issued promptly in accordance with the terms of the Rights Offering. (f) The documents to be delivered on the Closing Date by or on behalf of the parties hereto and the Investor Additional Shares (other than any such shares previously issued in accordance with the terms of the Rights Offering) will be delivered at the offices of J▇▇▇▇ Day, 2▇, Weiss, Rifkind, ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ & ▇▇▇▇, ▇▇▇ ▇▇▇▇ LLP, (ii) Wachtell, Lipton▇, ▇▇▇▇▇ & ▇▇▇▇, on the Closing Date. (iiig) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (iv) The Blackstone Group pursuant Notwithstanding anything to the Bankruptcy Court’s order approving debtor-in-possession financing contrary in this Agreement the Investor, in its sole discretion, may designate that some or all of the Investor Additional Shares be issued in the name of, and the DIP Financing Documents delivered to, one or more of its Subsidiaries (as defined thereinherein).

The Backstop Commitment. (a) On the basis of the representations and warranties contained herein, but subject to the conditions set forth in Section 11 hereof and the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(i) hereof, and pursuant to Sections 25 and 26 hereof7, each Investor agrees to subscribe for in accordance with purchase from the Plan and purchase Issuer on the Effective Date Date, and the Issuer agrees to issue and sell to each Investor, at the aggregate Purchase Price therefor, such Investor’s portion of the Unsubscribed New Notes as set forth on Schedule A hereto (the “Closing Date”), and the Company agrees to sell and issue, at a purchase price per Unit equal to the Subscription Purchase Price, (i) such Investor’s Subscription Units and (ii) a number of Residual Units calculated by multiplying (x) such Investor’s Backstop Percentage times (y) the aggregate number of Residual Units (collectively, the “Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) The Company shall Issuer will pay or reimburse each Investor for its Transaction Expenses; provided, that the Company shall not be responsible for any fees and expenses of legal, accounting and financial advisors and management consultants that are engaged by to the Investors after the date hereof unless aggregate backstop commitment fee of (i) $5.6 million (the Company consents to such payment or reimbursement, such consent not to be unreasonably withheld. The Transaction Expenses “Cash Backstop Fee”) which shall be paid released to the Investors, (A) upon the earlier issuance of the Closing New Notes as contemplated herein on the Effective Date, in the form of shares of New Common Stock representing 4% of all of the Issuer’s outstanding New Common Stock on the Effective Date and termination (on a fully-diluted basis), or (B) in the form of a super-priority administrative claim against the Issuer if this Equity Commitment Agreement is terminated in accordance with Section 19 hereofthe terms hereof prior to the Effective Date or the New Notes are not issued on the Effective Date pursuant to the Plan as contemplated hereby, except for termination resulting from and (ii) on the breach by basis of the representations and warranties herein contained, but subject to the entry of a final, non-appealable Confirmation Order (as defined below) and on the Effective Date, shares of New Common Stock representing 4% of all of the Issuer’s outstanding New Common Stock on the Effective Date (on a fully-diluted basis) (the “Stock Backstop Fee,” and together with the Cash Backstop Fee, the “Backstop Fee”), in each case of payment to the Investors, in such proportions per Investor as indicated in Schedule A hereto, to compensate each such Investor for the risk of its undertakings herein; provided that in the event that any representationInvestor defaults on its obligation to purchase the Unsubscribed New Notes that it has agreed to purchase hereunder, warranty the fee allocable to such defaulting Investor shall be re-allocated to the Investor(s) who assume such defaulting Investor’s obligations hereunder on a pro rata basis, or covenant if such obligation is not assumed by any Investor, among the non-defaulting Investors pro rata based on their respective backstopping commitments set forth hereinin Schedule A hereto. The filing feesNew Common Stock each Investor receives pursuant to clauses (i)(A) and/or (ii) above shall have the benefit of substantially the same anti-dilution protection as the New Notes. The Cash Backstop Fee and all other amounts payable hereunder will be paid in U.S. dollars. Payment of the Cash Backstop Fee pursuant to clause (i)(B) above will be made by wire transfer of immediately available funds and payment of the Stock Backstop Fee and, if anyapplicable, required delivery of shares of New Common Stock in exchange for the Cash Backstop Fee pursuant to clause (i)(A) above, will be made by stock transfer of the HSR Act appropriate shares of New Common Stock to the account specified by each Investor to the Issuer at least 24 hours in advance. The Backstop Fee will be payable whether or other Antitrust Laws shall not any Unsubscribed New Notes are purchased pursuant to the Backstop Commitment and will be paid by nonrefundable when paid. (c) The Issuer will reimburse or pay, as the Company when filings under case may be, the HSR Act are made. For reasonable expenses of the avoidance of doubtInvestors, this Section 3(b) shall not affect the Company’s obligation to pay including the fees and expenses of (i) ▇▇▇▇Rothschild Inc., Weissfinancial advisor to the Investors, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) and Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and local Wilmington, Delaware counsel, as legal advisors to the Investors and reasonable fees and expenses of any other professionals retained by the Investors in connection with the transaction contemplated hereby, including, but not limited to, reasonable fees and expenses incurred in connection with the escrow of the Cash Backstop Fee contemplated in Section 2(b) above (ivcollectively, “Transaction Expenses”); provided that the Issuer shall not be responsible for the fees or expenses of more than one financial advisor or more than one counsel and one local counsel to the Investors. Such reimbursement or payment shall be made by the Issuer within two (2) days of presentation of an invoice approved by the Investors, without Bankruptcy Court review or further Bankruptcy Court order (but subject to any conditions imposed by the Bankruptcy Court or the United States Trustee in the order authorizing the assumption of this Agreement or the DIP Order (as defined below)), whether or not the transactions contemplated hereby are consummated. These obligations are in addition to, and do not limit, the Issuer’s obligations under Section 8. The Blackstone Group pursuant provision for the payment of the Transaction Expenses is an integral part of the transactions contemplated by this Agreement, and without this provision the Investors would not have entered into this Agreement and shall, subject to the approval of the assumption of this Agreement by the Bankruptcy Court’s order approving debtor-in-possession financing , constitute an administrative expense of the Issuer under section 364(c)(1) of the Bankruptcy Code. (d) On the Effective Date, the individual Investors will purchase, and the DIP Financing Documents Issuer will sell to the individual Investors, at a price equal to the Purchase Price therefor, such principal amount of Unsubscribed New Notes as is listed in the Purchase Notice, without prejudice to the rights of the Investors to seek later an upward or downward adjustment if the principal amount of Unsubscribed New Notes in such Purchase Notice is inaccurate. (e) Delivery of the Unsubscribed New Notes will be made by the Issuer to the respective accounts of the Investors (or to such other accounts as defined therein)the Investors may designate) on the Effective Date against payment of the Purchase Price for such Unsubscribed New Notes by wire transfer of immediately available funds to the account specified by the Issuer to the Investors at least 24 hours in advance. (f) All Unsubscribed New Notes will be delivered with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by the Issuer to the extent required under the Confirmation Order or applicable law. (g) The documents to be delivered on the Effective Date by or on behalf of the parties hereto will be delivered at the offices of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ on the Effective Date. (h) Notwithstanding anything to the contrary in this Agreement, each Investor, in its sole discretion, may designate that some or all of the Unsubscribed New Notes be issued in the name of and delivered to, one or more of its Affiliates or any other third party. (i) No Investor shall have any liability for the Backstop Commitment of any other Investor.

The Backstop Commitment. (a) On the basis of the representations and warranties contained herein, but subject to the terms and conditions set forth in Section 11 hereof and the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(i) hereof, and pursuant to Sections 25 and 26 hereofherein, each Investor agrees agrees, severally and not jointly, to subscribe for in accordance with the Plan and purchase on the Effective Date (the “Closing Date”), and the Company agrees to sell and issue, at a purchase price the Purchase Price per Unit equal to Note, the Subscription Purchase Price, principal amount of Unsubscribed Notes (i) such the “Investor’s Subscription Units and (ii) a number of Residual Units Unsubscribed Notes”), calculated by multiplying (x) such Investor’s Backstop Percentage times (y) the aggregate number of Residual Units Unsubscribed Notes (collectively, the “Backstop Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) [Reserved]. (c) On the basis of the representations and warranties herein contained, but subject to the terms and conditions set forth herein, the Company will make an aggregate payment to all Investors that execute this Commitment Agreement equal to the greater of (x) $15,000,000 and (y) 6.0% of the Amount, which amount shall be payable on the Effective Date (the “Backstop Payment”) to compensate each Investor for the risk of its undertaking pursuant to this Commitment Agreement. Fifty percent of the aggregate Backstop Payment shall be payable in cash and fifty percent of the aggregate Backstop Payment shall be payable in Common Shares based upon the Conversion Price; provided, however, that an Investor may elect to receive the full amount of its Backstop Payment in Doc#: US1:6482186v13 10 Common Shares by notice delivered to the Company in accordance with Section 13 not later than the Escrow Date. The percentage of the Backstop Payment allocated to each Investor is as set forth on Schedule 1(h) hereto. The Backstop Shares will be delivered to the Investors on the Effective Date in accordance with written instructions specified by each Investor to the Company at least 24 hours in advance. The cash portion of the Backstop Payment will be made by wire transfer of immediately available funds on the Effective Date. The Backstop Payment will be payable whether or not there are any Unsubscribed Notes and will be fully earned and nonrefundable when paid on the Effective Date; provided, however, that in no event shall the Investors receive both the Backstop Payment and the Termination Payment. (d) The Company shall pay an aggregate termination payment to all Investors in the amounts set forth below (each a “Termination Payment”) upon the earlier to occur of the Effective Date or reimburse each Investor for its Transaction Expenses; providedthe effective date of any alternative transaction or other plan, that as applicable if this Commitment Agreement is terminated pursuant to Sections 12(a)(iii), 12(a)(iv), 12(a)(v), 12(a)(vi), Sections 12(b)(i), 12(b)(ii), 12(b)(iii), 12(b)(iv), 12(b)(v), 12(b)(vii), 12(b)(viii), 12(b)(ix), 12(b)(x)(other than with respect to the Company shall not be responsible for any fees and expenses conditions contained in Section 7(a)), 12(b)(xi), or Sections 12(c)(ii), 12(c)(iii), 12(c)(iv), or 12(c)(v): (i) if termination of legal, accounting and financial advisors and management consultants that are engaged by the Investors this Commitment Agreement occurs after the date hereof unless on which the Company consents to such payment Termination Payment is approved by the U.S. Bankruptcy Court but on or reimbursement, such consent not to be unreasonably withheld. The Transaction Expenses shall be paid upon before the earlier of (x) the Closing Date date on which this Commitment Agreement is approved by the U.S. Bankruptcy Court and (y) the later date on which an alternative transaction is approved by the U.S. Bankruptcy Court or Canadian Court (the “Approval Date”), the Termination Payment payable to all Investors shall be an aggregate amount equal to the lesser of (x) $15,000,000 and (y) 5% of the capital raised in any alternative transaction, but not less than $7,500,000; (ii) if termination of this Equity Commitment Agreement occurs after the Approval Date but on or before October 15, 2010, the Termination Payment payable to all Investors shall be an aggregate amount equal to $15,000,000; or (iii) if termination of this Commitment Agreement occurs after October 15, 2010, the Termination Payment payable to all Investors shall be an aggregate amount equal to the greater of (x) $15,000,000 and (y) 6% of the Amount as in effect on October 15, 2010. (iv) The percentage of the aggregate Termination Payment allocated to each Investor is as set forth on Schedule 1(h). Notwithstanding anything to the contrary herein, at an Investor’s election by notice delivered to the Company in accordance with Section 19 hereof13 not less than two (2) Business Days before the date on which the Termination Payment is due and payable, except for termination resulting from such Investor’s percentage of the breach by such Investor of any representation, warranty or covenant set forth hereinTermination Payment shall be payable on the Effective Date in Common Shares rather than cash. The filing feesTermination Payment will be fully earned and non-refundable when paid. The provision for the making of the Termination Payment is an integral part of the transactions contemplated by this Commitment Agreement, if any, required by and without this provision the HSR Act or other Antitrust Laws shall be paid by the Company when filings under the HSR Act are made. For the avoidance of doubt, this Section 3(b) shall Investors would not affect the Company’s obligation to pay the fees and expenses of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (iv) The Blackstone Group pursuant to the Bankruptcy Court’s order approving debtor-in-possession financing and the DIP Financing Documents (as defined therein).have Doc#: US1:6482186v13 11

The Backstop Commitment. (a) On the basis of the representations and warranties contained hereinherein contained, but subject to the conditions set forth in Section 11 hereof and 7, on the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(iClosing Date (i) hereof, and pursuant to Sections 25 and 26 hereof, each Investor Hawkeye agrees to subscribe for in accordance with the Plan and purchase on the Effective Date (the “Closing Date”)purchase, and the Company ABE agrees to sell issue and issuesell, at a purchase price per Unit equal to the Subscription aggregate Purchase Price, (i) such Investor’s Subscription all of the Hawkeye Pro-Rata Units and (ii) a number of Residual Units calculated by multiplying (x) such Investor’s Backstop Percentage times (y) Hawkeye agrees to subscribe for and purchase, and ABE agrees to issue and sell, at the aggregate number Purchase Price therefor, all Unsubscribed Units as of Residual Units the Subscription Expiration Date (the commitments set forth in clauses (i) and (ii) above, collectively, the “Backstop Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) The Company shall pay In exchange for the Backstop Commitment, on or as soon as practicable after the Closing Date, ABE will reimburse each Investor Hawkeye for its Transaction Expenses; providedall reasonable costs and expenses, that the Company shall not be responsible for any including professional fees and expenses of legalexpenses, accounting incurred in connection with the Private Offering. These obligations are in addition to, and financial advisors do not limit, ABE’s obligations under Section 8. (c) ABE will provide a Purchase Notice or a Satisfaction Notice to Hawkeye as provided above, setting forth a true and management consultants that are engaged by the Investors after the date hereof unless the Company consents to such payment or reimbursement, such consent not to be unreasonably withheld. The Transaction Expenses shall be paid upon the earlier accurate determination of the Closing Date and termination aggregate number of this Equity Commitment Agreement in accordance with Section 19 hereof, except for termination resulting from the breach by such Investor of any representation, warranty or covenant set forth herein. The filing feesUnsubscribed Units, if any, required by provided, that on the HSR Act Closing Date Hawkeye will purchase, and ABE will sell, only such number of Unsubscribed Units as are listed in the Purchase Notice, without prejudice to the rights of Hawkeye to seek later an upward or other Antitrust Laws shall downward adjustment if the number of Unsubscribed Units in such Purchase Notice is inaccurate. (d) All Hawkeye Additional Units will be delivered with any and all issue, stamp, transfer or similar taxes or duties payable in connection with such delivery duly paid by the Company when filings under the HSR Act are made. For the avoidance of doubt, this Section 3(bABE. (e) shall not affect the Company’s obligation to pay the fees and expenses of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (iv) The Blackstone Group pursuant Notwithstanding anything to the Bankruptcy Court’s order approving debtor-in-possession financing contrary in this Agreement, Hawkeye, in its sole discretion, may designate that some or all of Hawkeye Additional Units be issued in the name of, and the DIP Financing Documents delivered to, one or more of its Affiliates (as defined therein)herein) as long as any such Affiliate is an “accredited investor” within the meaning of rule 501 under the Securities Act.

The Backstop Commitment. (a) On the basis of the representations and warranties contained herein, but subject to the terms and conditions set forth in Section 11 hereof and the utilization of the proceeds of the Rights Offering solely as set forth in Section 9(i) hereof, and pursuant to Sections 25 and 26 hereofherein, each Investor agrees agrees, severally and not jointly, to subscribe for in accordance with the Plan and purchase on the Effective Date (the “Closing Date”), and the Company agrees to sell and issue, at a purchase price the Purchase Price per Unit equal to Note, the Subscription Purchase Price, principal amount of Unsubscribed Notes (i) such the “Investor’s Subscription Units and (ii) a number of Residual Units Unsubscribed Notes”), calculated by multiplying (x) such Investor’s Backstop Percentage times (y) the aggregate number of Residual Units Unsubscribed Notes (collectively, the “Backstop Commitment”). Subject to the foregoing, each Investor shall, or shall cause its Affiliates to, elect to receive and exercise all of the Rights offered to such Investor or Affiliate in respect of its Eligible Claims in accordance with the Plan. (b) [Reserved]. (c) On the basis of the representations and warranties herein contained, but subject to the terms and conditions set forth herein, the Company will make an aggregate payment to all Investors that execute this Commitment Agreement equal to the greater of (x) $15,000,000 and (y) 6.0% of the Amount, which amount shall be payable on the Effective Date (the “Backstop Payment”) to compensate each Investor for the risk of its undertaking pursuant to this Commitment Agreement. Fifty percent of the aggregate Backstop Payment shall be payable in cash and fifty percent of the aggregate Backstop Payment shall be payable in Common Shares based upon the Conversion Price; provided, however, that an Investor may elect to receive the full amount of its Backstop Payment in Common Shares by notice delivered to the Company in accordance with Section 13 not later than the Escrow Date. The percentage of the Backstop Payment allocated to each Investor is as set forth on Schedule 1(h) hereto. The Backstop Shares will be delivered to the Investors on the Effective Date in accordance with written instructions specified by each Investor to the Company at least 24 hours in advance. The cash portion of the Backstop Payment will be made by wire transfer of immediately available funds on the Effective Date. The Backstop Payment will be payable whether or not there are any Unsubscribed Notes and will be fully earned and nonrefundable when paid on the Effective Date; provided, however, that in no event shall the Investors receive both the Backstop Payment and the Termination Payment. (d) The Company shall pay an aggregate termination payment to all Investors in the amounts set forth below (each a “Termination Payment”) upon the earlier to occur of the Effective Date or reimburse each Investor for its Transaction Expenses; providedthe effective date of any alternative transaction or other plan, that as applicable if this Commitment Agreement is terminated pursuant to Sections 12(a)(iii), 12(a)(iv), 12(a)(v), 12(a)(vi), Sections 12(b)(i), 12(b)(ii), 12(b)(iii), 12(b)(iv), 12(b)(v), 12(b)(vii), 12(b)(viii), 12(b)(ix), 12(b)(x) (other than with respect to the Company shall not be responsible for any fees and expenses conditions contained in Section 7(a)), 12(b)(xi), or Sections 12(c)(ii), 12(c)(iii), 12(c)(iv), or 12(c)(v): (i) if termination of legal, accounting and financial advisors and management consultants that are engaged by the Investors this Commitment Agreement occurs after the date hereof unless on which the Company consents to such payment Termination Payment is approved by the U.S. Bankruptcy Court but on or reimbursement, such consent not to be unreasonably withheld. The Transaction Expenses shall be paid upon before the earlier of (x) the Closing Date date on which this Commitment Agreement is approved by the U.S. Bankruptcy Court and (y) the later date on which an alternative transaction is approved by the U.S. Bankruptcy Court or Canadian Court (the “Approval Date”), the Termination Payment payable to all Investors shall be an aggregate amount equal to the lesser of (x) $15,000,000 and (y) 5% of the capital raised in any alternative transaction, but not less than $7,500,000; (ii) if termination of this Equity Commitment Agreement occurs after the Approval Date but on or before October 15, 2010, the Termination Payment payable to all Investors shall be an aggregate amount equal to $15,000,000; or (iii) if termination of this Commitment Agreement occurs after October 15, 2010, the Termination Payment payable to all Investors shall be an aggregate amount equal to the greater of (x) $15,000,000 and (y) 6% of the Amount as in effect on October 15, 2010. (iv) The percentage of the aggregate Termination Payment allocated to each Investor is as set forth on Schedule 1(h). Notwithstanding anything to the contrary herein, at an Investor’s election by notice delivered to the Company in accordance with Section 19 hereof13 not less than two (2) Business Days before the date on which the Termination Payment is due and payable, except for termination resulting from such Investor’s percentage of the breach by such Investor of any representation, warranty or covenant set forth hereinTermination Payment shall be payable on the Effective Date in Common Shares rather than cash. The filing feesTermination Payment will be fully earned and non-refundable when paid. The provision for the making of the Termination Payment is an integral part of the transactions contemplated by this Commitment Agreement, if any, required by and without this provision the HSR Act or other Antitrust Laws shall be paid by the Company when filings under the HSR Act are made. For the avoidance of doubt, this Section 3(b) shall Investors would not affect the Company’s obligation to pay the fees and expenses of (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, (ii) Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, (iii) Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP and (iv) The Blackstone Group pursuant to the Bankruptcy Court’s order approving debtor-in-possession financing and the DIP Financing Documents (as defined therein).have