Common use of Standby Commitment Clause in Contracts

Standby Commitment. Subject to and in accordance with the terms and conditions hereof, each Standby Purchaser hereby agrees to purchase, severally and not jointly, from SEG, and SEG hereby agrees to sell to each Standby Purchaser, at the Subscription Price and on the Closing Date, the shares of Common Stock that were not otherwise subscribed for and purchased in the Rights Offering by holders of Rights prior to the Expiry Time (and for greater certainty, the Standby Purchasers shall purchase shares of Common Stock hereunder only to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth in this Section 2.1 (the “Standby Shares”) in the respective percentages (each a “Standby Purchaser Percentage”) set forth on the signature page hereof; provided, however, that such Standby Purchaser’s obligation to purchase shares of Common Stock issued pursuant to the Rights Offering and this Agreement (which, for greater certainty, shall comprise the sum of (i) shares of Common Stock purchased pursuant to the Basic Subscription Right of such Standby Purchaser, (ii) any shares of Common Stock purchased pursuant to the Over Subscription Right of the Standby Purchasers and (iii) the Standby Shares) shall not exceed in the aggregate the product of such Standby Purchaser’s Standby Purchaser Percentage (expressed as a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser Amount”).

Standby Commitment. Subject to and in accordance with the terms and conditions hereof, each the Standby Purchaser hereby agrees to purchase, severally and not jointly, purchase from SEGCDB, and SEG CDB hereby agrees to sell to each the Standby Purchaser, at the Subscription Price and on the Closing Date, (i) such number of Rights Shares that results from the shares Standby Purchaser fully subscribing and exercising its Rights under the Basic Subscription Privilege and (ii) such number of Common Stock Rights Shares, if any, that were are not otherwise purchased upon exercise of the Rights under the Rights Offering but excluding Rights Shares (the “Excluded Rights Shares”) that are issuable to JCHX Mining Management Co., Ltd. and its affiliates under Rights issued to it (the “Standby Shares”). For certainty, the aggregate number of Standby Shares to be purchased pursuant to this Section 2.4 will be equal to: (a) the number of Rights Shares authorized to be issued on the Record Date pursuant to the exercise of the Rights; minus (b) the Excluded Rights Shares and the number of Rights Shares subscribed for and purchased in taken up under the Rights Offering by holders of Rights prior (including, for greater certainty and without limitation, pursuant to the Expiry Time (Additional Subscription Privilege and any Rights Shares subscribed for greater certainty, under the Rights Offering by the Standby Purchasers shall purchase shares of Common Stock hereunder only Purchaser) (such commitment referred to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth in this Section 2.1 (the “Standby Shares”) in the respective percentages (each a “Standby Purchaser Percentage”) set forth on the signature page hereof; provided, however, that such Standby Purchaser’s obligation to purchase shares of Common Stock issued pursuant to the Rights Offering and this Agreement (which, for greater certainty, shall comprise the sum of (i) shares of Common Stock purchased pursuant to the Basic Subscription Right of such Standby Purchaser, (ii) any shares of Common Stock purchased pursuant to the Over Subscription Right of the Standby Purchasers and (iii) the Standby Shares) shall not exceed in the aggregate the product of such Standby Purchaser’s Standby Purchaser Percentage (expressed as a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser AmountCommitment”).

Standby Commitment. Subject Each holder of the Subordinated Notes hereby agrees to and become a standby purchaser (“Standby Purchaser”) of any securities offered in accordance with the terms and conditions hereofRights Offering (the “Rights Offering Securities”). The maximum amount of each Standby Purchaser’s standby commitment shall be equal to the principal amount of the Subordinated Notes issued to such Standby Purchaser. If the Standby Commitment is called upon by the Company, each Standby Purchaser hereby agrees will use the Subordinated Notes held by such Standby Purchaser (or such portion of such Subordinated Notes as is required to purchase, severally and not jointly, from SEG, and SEG hereby agrees pay the purchase price in full of the Standby Commitment is called upon in part) to sell to each Standby Purchaser, pay the purchase price in full (at the Subscription Price and on the Closing Date, the shares par) of Common Stock that were not otherwise subscribed for and purchased in the Rights Offering by holders Securities. Each Standby Purchaser’s agreement to become a standby purchaser is contingent upon each of the Xxxxxxxx Funds also becoming a standby purchaser in such Rights prior to the Expiry Time Offering, on a pro rata basis (and for greater certainty, the Standby Purchasers shall purchase shares of Common Stock hereunder only to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth in this Section 2.1 (the “Standby Shares”) in the respective percentages (each a “Standby Purchaser Percentage”) set forth determined based on the signature page hereof; provided, however, that principal amount of Subordinated Notes owned) with each such Standby Purchaser’s obligation commitment to be a standby purchaser. Such Rights Offering Securities for which the Xxxxxxxx Funds have agreed to purchase shares of Common Stock issued pursuant to on a standby basis will have the same terms and standby purchase price and be in the same proportions between subordinated debt and equity as the Rights Offering and this Agreement (which, Securities for greater certainty, shall comprise the sum of (i) shares of Common Stock purchased pursuant to the Basic Subscription Right of such Standby Purchaser, (ii) any shares of Common Stock purchased pursuant to the Over Subscription Right of the Standby Purchasers and (iii) the Standby Shares) shall not exceed in the aggregate the product of such Standby Purchaser’s which each Standby Purchaser Percentage (expressed as has hereby agreed to purchase on a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser Amount”)standby basis.

Standby Commitment. Subject to and in accordance with the terms and conditions hereof, each the Standby Purchaser hereby agrees to purchase, severally and not jointly, purchase from SEGXxxxx, and SEG Xxxxx hereby agrees to sell to each the Standby Purchaser, at the Subscription Price and on the Closing Date, all of the shares of Common Stock that were not otherwise subscribed for and purchased in the Rights Offering by holders of Rights prior to the Expiry Time (and for greater certainty, the Standby Purchasers Purchaser shall purchase shares of Common Stock hereunder only to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth in this Section 2.1 (the “Standby Shares”) in the respective percentages (each a “). The Standby Purchaser Percentage”) set forth on hereby agrees to exercise, prior to the signature page hereof; providedExpiry Time, howeverthe Basic Subscription Right relating to the Brookfield Stock in accordance with Section 6.2(c), that such and the Standby Purchaser’s obligation to purchase Purchaser may, in its sole discretion, exercise the related Over Subscription Privilege. The aggregate number of shares of Common Stock issued to be purchased pursuant to the Rights Offering and this Agreement (which, for greater certainty, Section 2.1 shall comprise the sum of be equal to: (i) the number of shares of Common Stock authorized to be sold pursuant to the exercise of the Rights, minus (ii) the number of shares of Common Stock subscribed for and purchased in the Rights Offering by holders of Rights (including, for greater certainty and without limitation, pursuant to the Over Subscription Privilege and any shares of Common Stock subscribed for and purchased in the Rights Offering by the Standby Purchaser pursuant to the Basic Subscription Right of such Standby Purchaser, (ii) any shares of Common Stock purchased pursuant relating to the Brookfield Stock and the related Over Subscription Right of the Standby Purchasers and (iii) the Standby Shares) shall not exceed in the aggregate the product of such Standby Purchaser’s Standby Purchaser Percentage (expressed as a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser Amount”Privilege).

Standby Commitment. Subject to and in accordance with the terms and conditions hereof, each of the Standby Purchaser Purchasers hereby agrees to purchase, severally and not jointlyjointly agrees to purchase from ATS (or to cause to be purchased from ATS by one or more of its Affiliates as the Standby Purchaser designates in a notice to ATS and that satisfies the Substituted Purchaser Conditions, from SEGin each case not less than five Business Days prior to the Closing Date (each such Affiliate referred to as a “Substituted Standby Purchaser”)), and SEG ATS hereby agrees to sell to each the Standby Purchasers or any Substituted Standby Purchaser, as the case may be, at the Subscription Price and on the Closing Date, all of the shares of Common Stock Shares that were not otherwise subscribed for and purchased in taken up under the Rights Offering by holders of Rights prior to the Expiry Time (and for greater certainty, the Standby Purchasers shall purchase shares of Common Stock hereunder only to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth in this Section 2.1 (the “Standby Shares”). In this regard the Standby Purchasers will exercise their Basic Subscription Right in accordance with Section 6.1(f) and agree to acquire the Standby Shares in the respective percentages (each a “Standby Purchaser Percentage”) proportions set forth on opposite their names in Schedule A (up to a maximum of 20% of the signature page hereof; provided, however, that such Standby Purchaser’s obligation to purchase shares of Common Stock issued pursuant to Shares offered under the Rights Offering in respect of Goodwood’s total commitment hereunder, a maximum of 40% of the Shares offered under the Rights Offering in respect of GS Canada’s total commitment hereunder and this Agreement (whicha maximum of 40% of the Shares offered under the Rights Offering in respect of Mxxxx’x total commitment hereunder; provided, for greater certainty, that these percentage caps shall comprise not be interpreted as putting a cap on the sum total number of Standby Shares that the Standby Purchasers are required to purchase (ior cause to be purchased) shares in aggregate and that if one Standby Purchaser reaches its percentage cap then the balance of the Standby Shares it would otherwise agree to acquire shall be Standby Shares which the other two Standby Purchasers shall be required to purchase (or cause to be purchased)). The aggregate number of Standby Shares shall be equal to (A) the number of Shares outstanding on the Record Date divided by the Rights Ratio, minus (B) the number of Common Stock purchased Shares subscribed for and taken up under the Rights Offering by holders of Rights (including, for greater certainty, pursuant to the Basic Additional Subscription Right of such Standby Purchaser, (ii) Privilege and any shares of Common Stock purchased pursuant to Shares subscribed for and taken up under the Over Subscription Right Rights Offering by any of the Standby Purchasers and or any of the Substituted Standby Purchasers (iii) such commitment referred to as the “Standby Shares) Commitment”). No Standby Purchaser shall not exceed in the aggregate the product be responsible or liable for any breach or default by any other Standby Purchaser of such Standby Purchaser’s Standby Purchaser Percentage (expressed as a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser Amount”)obligations hereunder.

Standby Commitment. Subject to and in accordance with the terms and conditions hereof, each of the Standby Purchaser Purchasers hereby severally agrees to purchase, severally and not jointly, purchase from SEGLAC, and SEG LAC hereby agrees to sell to each such Standby Purchaser, at the Subscription Price and on the Closing Date, the shares such number of Common Stock Shares (the “Standby Shares”) that were not otherwise subscribed for and purchased in taken up under the Rights Offering by holders of Rights prior with an aggregate subscription price not exceeding $18.55 million in amounts designated by the Manager. The Standby Purchasers will collectively purchase the aggregate number of Standby Shares and in the event that any Standby Purchaser defaults in its portion of the Standby Commitment, the other Standby Purchasers will be required to forthwith purchase the Standby Shares not purchased by this defaulting Standby Purchaser. In this regard each Standby Purchaser will exercise in full its Basic Subscription Privilege. The aggregate number of Common Shares to be purchased pursuant to this Section 2.2 will be equal to the Expiry Time aggregate number of Common Shares issuable on the exercise of the Rights, minus the aggregate number of Common Shares subscribed for and taken up under the Rights Offering by holders of Rights (and including, for greater certaintycertainty and without limitation, the Standby Purchasers shall purchase shares of Common Stock hereunder only to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth in this Section 2.1 (the “Standby Shares”) in the respective percentages (each a “Standby Purchaser Percentage”) set forth on the signature page hereof; provided, however, that such Standby Purchaser’s obligation to purchase shares of Common Stock issued pursuant to the Rights Offering and this Agreement (Additional Subscription Privilege), which, for greater certainty, shall comprise the sum have an aggregate subscription price of no more than $18.55 million (i) shares of Common Stock purchased pursuant to the Basic Subscription Right of such Standby Purchaser, (ii) any shares of Common Stock purchased pursuant to the Over Subscription Right collective commitment of the Standby Purchasers and (iii) the Standby Shares) shall not exceed in the aggregate the product of such Standby Purchaser’s Standby Purchaser Percentage (expressed referred to as a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser AmountCommitment”).

Standby Commitment. Subject to and in accordance with the terms and conditions hereof, each Standby Purchaser The Investors hereby agrees to purchaseirrevocably agree, severally and but not jointly, from SEG, and SEG hereby agrees that they shall provide the Company up to sell to each Standby Purchaseran aggregate of one million dollars ($1,000,000) (the "Commitment Amount"). The Commitment Amount may be drawn by the Company, at its option (as determined by the Subscription Price and on disinterested members of the Closing Date, Board of Directors of the shares of Common Stock that were not otherwise subscribed for and purchased in the Rights Offering by holders of Rights Company) at any time prior to the Expiry Time (and for greater certaintyJanuary 1, the Standby Purchasers shall purchase shares of Common Stock hereunder only to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth 2004 in this Section 2.1 (the “Standby Shares”) in the respective percentages (each a “Standby Purchaser Percentage”) set forth on the signature page hereofone or more tranches; provided, however, that the Company may draw from the Commitment Amount only at such Standby Purchaser’s obligation time as its total cash balances are less than one million dollars ($1,000,000); and provided, further, that the Commitment Amount shall be reduced by the gross cash proceeds received by the Company or any of its subsidiaries from the issuance after the date hereof of any equity or convertible securities, excluding the issuance of equity or convertible securities in connection with: (1) financing provided by the Investors pursuant to purchase shares this Agreement, (2) any trade payables and other financing arrangements entered into in the ordinary course of Common Stock issued business and (3) any financing or credit accommodations received by the Company pursuant to the Rights Offering Financing Agreement, dated March 30, 2001, between the Company and this Agreement Rosenthal & Rosenthal, Inc., as the same may be amended or supplemexxxx xxxx tixx xx xxxe. Any and all draws against the Commitment Amount shall be effected through the purchase of newly-designated shares of Series E Convertible Preferred Stock (which"Series E Preferred Stock") on terms and conditions substantially identical to those set forth herein, for greater certainty, with the Series E Preferred Stock having rights substantially identical to the Series D Preferred Stock except that: (a) the conversion price of the Series E Preferred Stock shall comprise be the sum lower of (i) shares the conversion price of Common the Series D Preferred Stock purchased pursuant to the Basic Subscription Right of such Standby Purchaser, and (ii) any shares the average closing price of the Common Stock purchased pursuant on the Nasdaq SmallCap Market for the ten (10) trading days preceding the issuance of the Series E Preferred Stock; and (b) the Series E Preferred Stock shall not be convertible into Common Stock (and shall not be entitled to vote with the Common Stock on matters submitted to a vote of the holders of the Common Stock) until such time as the Company's stockholders approve the conversion rights of the Series E Preferred Stock to the Over Subscription Right extent such approval is required by the rules of the Standby Purchasers Nasdaq SmallCap Market or any other national securities exchange or quotation system upon which the Common Stock may be listed from time to time. The Company shall notify the Investors in writing within two (2) business days of the receipt of any funds that would reduce the Commitment Amount; provided that the Commitment Amount shall automatically be reduced whether or not the Company provides such notice. The obligation of Quantum Industrial Partners LDC in respect of the Commitment Amount shall be limited to 96.83% of the entire Commitment Amount, and (iii) the Standby Shares) obligation of SFM Domestic Investments LLC shall not exceed in be limited to 3.17% of the aggregate the product of such Standby Purchaser’s Standby Purchaser Percentage (expressed as a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser entire Commitment Amount”).

Standby Commitment. Subject to and in accordance with the terms and conditions hereof, each Standby Purchaser The Investors hereby agrees to purchaseirrevocably agree, severally and but not jointly, from SEG, and SEG hereby agrees that they shall provide the Company up to sell to each Standby Purchaseran aggregate of one million dollars ($1,000,000) (the "Commitment Amount"). The Commitment Amount may be drawn by the Company, at its option (as determined by the Subscription Price and on disinterested members of the Closing Date, Board of Directors of the shares of Common Stock that were not otherwise subscribed for and purchased in the Rights Offering by holders of Rights Company) at any time prior to the Expiry Time (and for greater certaintyJanuary 1, the Standby Purchasers shall purchase shares of Common Stock hereunder only to the extent that such shares of Common Stock were not otherwise subscribed for by a holder of Rights prior to the Expiry Time, including pursuant to a holder’s Over Subscription Privilege) as set forth 2004 in this Section 2.1 (the “Standby Shares”) in the respective percentages (each a “Standby Purchaser Percentage”) set forth on the signature page hereofone or more tranches; provided, however, that the Company may draw from the Commitment Amount only at such Standby Purchaser’s obligation time as its total cash balances are less than one million dollars ($1,000,000); and provided, further, that the Commitment Amount shall be reduced by the gross cash proceeds received by the Company or any of its subsidiaries from the issuance after the date hereof of any equity or convertible securities, excluding the issuance of equity or convertible securities in connection with: (1) financing provided by the Investors pursuant to purchase shares this Agreement, (2) any trade payables and other financing arrangements entered into in the ordinary course of Common Stock issued business and (3) any financing or credit accommodations received by the Company pursuant to the Rights Offering Financing Agreement, dated March 30, 2001, between the Company and this Agreement Rosenthal & Rosenthal, Inc., as the same may be amended or xxxxxxxxxted xxxx xxxe to time. Any and all draws against the Commitment Amount shall be effected through the purchase of newly-designated shares of Series E Convertible Preferred Stock (which"Series E Preferred Stock") on terms and conditions substantially identical to those set forth herein, for greater certainty, with the Series E Preferred Stock having rights substantially identical to the Series D Preferred Stock except that: (a) the conversion price of the Series E Preferred Stock shall comprise be the sum lower of (i) shares the conversion price of Common the Series D Preferred Stock purchased pursuant to the Basic Subscription Right of such Standby Purchaser, and (ii) any shares the average closing price of the Common Stock purchased pursuant on the Nasdaq SmallCap Market for the ten (10) trading days preceding the issuance of the Series E Preferred Stock; and (b) the Series E Preferred Stock shall not be convertible into Common Stock (and shall not be entitled to vote with the Common Stock on matters submitted to a vote of the holders of the Common Stock) until such time as the Company's stockholders approve the conversion rights of the Series E Preferred Stock to the Over Subscription Right extent such approval is required by the rules of the Standby Purchasers Nasdaq SmallCap Market or any other national securities exchange or quotation system upon which the Common Stock may be listed from time to time. The Company shall notify the Investors in writing within two (2) business days of the receipt of any funds that would reduce the Commitment Amount; provided that the Commitment Amount shall automatically be reduced whether or not the Company provides such notice. The obligation of Quantum Industrial Partners LDC in respect of the Commitment Amount shall be limited to 96.83% of the entire Commitment Amount, and (iii) the Standby Shares) obligation of SFM Domestic Investments LLC shall not exceed in be limited to 3.17% of the aggregate the product of such Standby Purchaser’s Standby Purchaser Percentage (expressed as a decimal) multiplied by $175 million (the “Aggregate Standby Purchaser entire Commitment Amount”).