Common use of The Exchange Offer and Note Consent Solicitation Clause in Contracts

The Exchange Offer and Note Consent Solicitation. (a) Provided that none of the events set forth in the caption “—Conditions to the Exchange Offer” of Annex D hereto shall have occurred or be continuing, promptly after the receipt of a written request from Purchaser to do so and the receipt of the Exchange Offer Documents (as defined below) from Purchaser, the Company shall cause the 12% Senior Notes Issuer to commence the Exchange Offer on terms consistent with Annex D. The Company shall cooperate, and shall cause its Subsidiaries to cooperate, with the reasonable requests of Purchaser in connection with the Exchange Offer. The Exchange Offer shall be conducted on the terms and subject to the conditions set forth in the offer to exchange and consent solicitation statement, the letter of transmittal and other related documents (collectively, the “Exchange Offer Documents”) and/or on such other terms as may be agreed by Purchaser and the Company as necessary or appropriate in order to facilitate obtaining the Requisite Noteholder Consents, including, without limitation, with regard to the amount of the 12% Senior Notes Cash Payments. The Exchange Offer shall require that each holder of 12% Senior Notes accepting the New Senior Notes and the 12% Senior Notes Cash Payments in exchange for such holder’s 12% Senior Notes must also consent to the Amendment to the Indenture. (b) As part of the Exchange Offer, the Company shall cause the 12% Senior Notes Issuer to solicit consents and waivers from holders of 12% Senior Notes to adopt the amendment to the Indenture and to waive the matters described under the caption “—Consents and Waivers” in Annex D hereto (the “Amendment to the Indenture”). (c) The obligation of the Company to cause the 12% Senior Notes Issuer to accept for exchange and payment the 12% Senior Notes tendered pursuant to the Exchange Offer shall be subject to (i) its obtaining the Requisite Noteholder Consent and (ii) the satisfaction of each of the other conditions to the Exchange Offer, as set forth in the Exchange Offer Documents. The Company shall cause the 12% Senior Notes Issuer to waive any of the conditions to the Exchange Offer as may be requested by Purchaser, subject to compliance with applicable Laws, and shall not, without the consent of Purchaser, cause the 12% Senior Notes Issuer to waive any condition to the Exchange Offer or make any changes to the terms and conditions of the Exchange Offer other than as agreed between Purchaser and the Company. Notwithstanding the immediately preceding sentence, the Company need not cause the 12% Senior Notes Issuer to make any change to the terms and conditions of the Exchange Offer requested by Purchaser that decreases the consideration per 12% Senior Note payable in the Exchange Offer or imposes conditions to the Exchange Offer or related consent solicitation in addition to those set forth in Annex D hereto that are materially adverse to holders of the 12% Senior Notes, unless such change is approved by the Company in writing. The Company shall cause the 12% Senior Notes Issuer to extend the expiration date and consent deadline of the Exchange Offer as may be reasonably requested by Purchaser. (d) The Company covenants and agrees that, promptly following the consent deadline specified in the Exchange Offer Documents, assuming the Requisite Noteholder Consent is received, the Company shall, and shall cause the 12% Senior Notes Issuer and other Subsidiaries who are guarantors of the 12% Senior Notes under the Indenture to (and shall use its reasonable best efforts to cause the Indenture Trustee to), execute a supplement to the Indenture implementing the Amendment to the Indenture, which shall be in a form reasonably satisfactory to Purchaser and which shall implement the amendments and waivers described in the Exchange Offer Documents and shall become operative at the closing of the Exchange Offer, subject to the terms and conditions of this Agreement (including the conditions to the Exchange Offer). The Company shall cause the 12% Senior Notes Issuer, concurrent with the closing of the Exchange Offer, to (i) accept for exchange the 12% Senior Notes that have been validly tendered and not withdrawn pursuant to and in accordance with the terms and conditions of the Exchange Offer, (ii) promptly execute the New Indenture (which shall be in a form reasonably satisfactory to Purchaser) and execute and issue (and in the case of the Indenture Trustee, authenticate) the New Senior Notes, (iii) promptly deliver the New Senior Notes and pay the 12% Senior Notes Cash Payments (using funds provided by or at the direction of Purchaser) (including the payment of an early consent payment specified in the Exchange Offer Documents to holders who validly tendered and did not validly withdraw their 12% Senior Notes prior to the consent deadline) to holders of 12% Senior Notes that have been accepted for exchange in the Exchange Offer. (e) Purchaser shall prepare all necessary and appropriate documentation in connection with the Exchange Offer, including the Exchange Offer Documents. The Company shall, and shall cause the 12% Senior Notes Issuer and other Subsidiaries to, cooperate with Purchaser in preparing the Exchange Offer Documents, in preparing and issuing any press release announcing the commencement, results, modification or extension of the Exchange Offer, and in preparing and disseminating any amendments or supplements to the Exchange Offer Documents. The Exchange Offer Documents (including all amendments or supplements) and all mailings to the holders of the 12% Senior Notes in connection with the Exchange Offer shall be subject to the prior review of, and comment by, the Company and Purchaser and shall be reasonably acceptable to each of them. If at any time prior to the closing of the Exchange Offer any information in the Exchange Offer Documents should be discovered by the Company or the 12% Senior Notes Issuer, on the one hand, or Purchaser, on the other hand, which should be set forth in an amendment or supplement to the Exchange Offer Documents so that the Exchange Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and the Company shall cause the 12% Senior Notes Issuer to disseminate to the holders of the 12% Senior Notes an appropriate amendment or supplement prepared by Purchaser describing such information. Notwithstanding anything to the contrary in this Section 3.01, Purchaser, the Company and the Subsidiaries shall comply with the requirements of Rule 14e-1 under the Exchange Act, any U.S. state securities or “Blue Sky” laws and any other applicable Law to the extent such Law is applicable in connection with the Exchange Offer and such compliance will not be deemed a breach hereof. (f) In connection with the Exchange Offer, Purchaser may select one or more dealer managers, information agents, depositaries and other agents (collectively, “Agents”) to provide assistance in connection therewith, and the Company shall, and/or shall cause the 12% Senior Notes Issuer to, enter into customary agreements (including indemnities) with such parties so selected. Purchaser shall reimburse the Company and the 12% Senior Notes Issuer for the reasonable fees and out-of-pocket expenses paid to any Agent retained in connection with the Exchange Offer, which fees and expenses shall, after the Swap Closing, be paid out of the Proceeds in accordance with Section 7.12. The Company shall provide to Purchaser, and shall cause its Subsidiaries to, and shall use its best efforts to cause the respective officers, employees and advisors, including legal and accounting, of the Company and its Subsidiaries to, provide to Purchaser and its affiliates, its legal counsel and the Agents cooperation reasonably requested by Purchaser or such affiliates, such legal counsel or the Agents in connection with the Exchange Offer, including (i) participating in meetings, presentations, due diligence sessions and drafting sessions, (ii) executing and delivering any legal opinions, comfort letters (10b-5 letters) or documents as may be reasonably requested by Purchaser or the Agents, and (iii) using best efforts to obtain accountants’ comfort letters, consents and legal opinions, as reasonably requested by Purchaser or the Agents. (g) If the 12% Senior Notes validly tendered for exchange in the Exchange Offer are accepted for exchange by the 12% Senior Notes Issuer pursuant to Section 3.01(d) above, the Company shall, promptly after the Swap Closing, cause the 12% Senior Notes Issuer to deliver, in the manner specified in the Indenture, a notice to holders of outstanding 12% Senior Notes that were not accepted for exchange in the Exchange Offer (the “Remaining 12% Senior Notes”) offering to repurchase, in accordance with and at the price specified in Section 4.11 of the Indenture, the Remaining 12% Senior Notes. On the repurchase date specified in the repurchase notice referred to in the immediately preceding sentence, the Company shall cause the 12% Senior Notes Issuer to repurchase the Remaining 12% Senior Notes using funds provided by Purchaser or at the direction of Purchaser (the “Senior Notes Repurchase Payment”). (h) Purchaser shall not be responsible or liable for, any payment (including with respect to the 12% Senior Notes Cash Payments or with respect to the repurchase of the Remaining 12% Senior Notes), damages or obligation arising from the failure of the Company and its Subsidiaries to comply with the provisions of this Section 3.01, including, without limitation, any such failure which would result in the closing of the Exchange Offer without the consent of Purchaser.

The Exchange Offer and Note Consent Solicitation. (a) Provided that none of the events set forth in the caption “—Conditions to of the Exchange Offer” of Annex D E hereto shall have occurred or be continuing, promptly after the receipt of a written request from Purchaser to do so and the receipt of the Exchange Offer Documents (as defined below) from Purchaser, the Company shall cause the 12% Senior Notes Issuer to commence the Exchange Offer on terms consistent with Annex D. D to the Prior Agreements. The Company shall cooperate, and shall cause its Subsidiaries to cooperate, with the reasonable requests of Purchaser in connection with the Exchange Offer. The Exchange Offer shall be conducted on the terms and subject to the conditions set forth in the offer to exchange and consent solicitation statement, the letter of transmittal and other related documents (collectively, as amended from time to time in accordance with the terms set forth herein, the “Exchange Offer Documents”) and/or on such other terms as may be agreed by Purchaser and the Company as necessary or appropriate in order to facilitate obtaining the Requisite Noteholder Consents, including, without limitation, with regard to the amount of the 12% Senior Notes Cash Payments. The Exchange Offer shall require that each holder of 12% Senior Notes accepting the New Senior Notes and the 12% Senior Notes Cash Payments in exchange for such holder’s 12% Senior Notes must also consent to the Amendment to the Indenture. (b) As part of the Exchange Offer, the Company shall cause the 12% Senior Notes Issuer to solicit consents and waivers from holders of 12% Senior Notes to adopt the amendment to the Indenture and to waive the matters described under the caption “—Consents and Waivers” in Annex D hereto (the “Amendment to the Indenture”). (c) The obligation of the Company to cause the 12% Senior Notes Issuer to accept for exchange and payment the 12% Senior Notes tendered pursuant to the Exchange Offer shall be subject to (i) its obtaining the Requisite Noteholder Consent and (ii) the satisfaction of each of the other conditions to the Exchange Offer, as set forth in the Exchange Offer Documents. The Company shall cause the 12% Senior Notes Issuer to waive any of the conditions to the Exchange Offer as may be requested by Purchaser, subject to compliance with applicable Laws, and shall not, without the consent of Purchaser, cause the 12% Senior Notes Issuer to waive any condition to the Exchange Offer or make any changes to the terms and conditions of the Exchange Offer other than as agreed between Purchaser and the Company. Notwithstanding the immediately preceding sentence, the Company need not cause the 12% Senior Notes Issuer to make any change to the terms and conditions of the Exchange Offer requested by Purchaser that decreases the consideration per 12% Senior Note payable in the Exchange Offer or imposes conditions to the Exchange Offer or related consent solicitation in addition to those set forth in Annex D hereto that are materially adverse to holders of the 12% Senior Notes, unless such change is approved by the Company in writing. The Company shall cause the 12% Senior Notes Issuer to extend the expiration date and consent deadline of the Exchange Offer as may be reasonably requested by Purchaser. (d) The Company covenants and agrees that, promptly following the consent deadline specified in the Exchange Offer Documents, assuming the Requisite Noteholder Consent is received, the Company shall, and shall cause the 12% Senior Notes Issuer and other Subsidiaries who are guarantors of the 12% Senior Notes under the Indenture to (and shall use its reasonable best efforts to cause the Indenture Trustee to), execute a supplement to the Indenture implementing the Amendment to the Indenture, which shall be in a form reasonably satisfactory to Purchaser and which shall implement the amendments and waivers described in the Exchange Offer Documents and shall become operative at the closing of the Exchange Offer, subject to the terms and conditions of this Agreement (including the conditions to the Exchange Offer). The Company shall cause the 12% Senior Notes Issuer, concurrent with the closing of the Exchange Offer, to (i) accept for exchange the 12% Senior Notes that have been validly tendered and not withdrawn pursuant to and in accordance with the terms and conditions of the Exchange Offer, (ii) promptly execute the New Indenture (which shall be in a form reasonably satisfactory to Purchaser) and execute and issue (and in the case of the Indenture Trustee, authenticate) the New Senior Notes, (iii) promptly deliver the New Senior Notes and pay the 12% Senior Notes Cash Payments (using funds provided by or at the direction of Purchaser) (including the payment of an early consent payment specified in the Exchange Offer Documents to holders who validly tendered and did not validly withdraw their 12% Senior Notes prior to the consent deadline) to holders of 12% Senior Notes that have been accepted for exchange in the Exchange Offer. (e) Purchaser shall prepare all necessary and appropriate documentation in connection with the Exchange Offer, including the Exchange Offer Documents. The Company shall, and shall cause the 12% Senior Notes Issuer and other Subsidiaries to, cooperate with Purchaser in preparing the Exchange Offer Documents, in preparing and issuing any press release announcing the commencement, results, modification or extension of the Exchange Offer, and in preparing and disseminating any amendments or supplements to the Exchange Offer Documents. The Exchange Offer Documents (including all amendments or supplements) and all mailings to the holders of the 12% Senior Notes in connection with the Exchange Offer shall be subject to the prior review of, and comment by, the Company and Purchaser and shall be reasonably acceptable to each of them. If at any time prior to the closing of the Exchange Offer any information in the Exchange Offer Documents should be discovered by the Company or the 12% Senior Notes Issuer, on the one hand, or Purchaser, on the other hand, which should be set forth in an amendment or supplement to the Exchange Offer Documents so that the Exchange Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and the Company shall cause the 12% Senior Notes Issuer to disseminate to the holders of the 12% Senior Notes an appropriate amendment or supplement prepared by Purchaser describing such information. Notwithstanding anything to the contrary in this Section 3.01, Purchaser, the Company and the Subsidiaries shall comply with the requirements of Rule 14e-1 under the Exchange Act, any U.S. state securities or “Blue Sky” laws and any other applicable Law to the extent such Law is applicable in connection with the Exchange Offer and such compliance will not be deemed a breach hereof. (f) In connection with the Exchange Offer, Purchaser may select one or more dealer managers, information agents, depositaries and other agents (collectively, “Agents”) to provide assistance in connection therewith, and the Company shall, and/or shall cause the 12% Senior Notes Issuer to, enter into customary agreements (including indemnities) with such parties so selected. Purchaser shall reimburse the Company and the 12% Senior Notes Issuer for the reasonable fees and out-of-pocket expenses paid to any Agent retained in connection with the Exchange Offer, which fees and expenses shall, after the Swap Closing, be paid out of the Proceeds in accordance with Section 7.12. The Company shall provide to Purchaser, and shall cause its Subsidiaries to, and shall use its best efforts to cause the respective officers, employees and advisors, including legal and accounting, of the Company and its Subsidiaries to, provide to Purchaser and its affiliates, its legal counsel and the Agents cooperation reasonably requested by Purchaser or such affiliates, such legal counsel or the Agents in connection with the Exchange Offer, including (i) participating in meetings, presentations, due diligence sessions and drafting sessions, (ii) executing and delivering any legal opinions, comfort letters (10b-5 letters) or documents as may be reasonably requested by Purchaser or the Agents, and (iii) using best efforts to obtain accountants’ comfort letters, consents and legal opinions, as reasonably requested by Purchaser or the Agents. (g) If the 12% Senior Notes validly tendered for exchange in the Exchange Offer are accepted for exchange by the 12% Senior Notes Issuer pursuant to Section 3.01(d) above, the Company shall, promptly after the Swap Closing, cause the 12% Senior Notes Issuer to deliver, in the manner specified in the Indenture, a notice to holders of outstanding 12% Senior Notes that were not accepted for exchange in the Exchange Offer (the “Remaining 12% Senior Notes”) offering to repurchase, in accordance with and at the price specified in Section 4.11 of the Indenture, the Remaining 12% Senior Notes. On the repurchase date specified in the repurchase notice referred to in the immediately preceding sentence, the Company shall cause the 12% Senior Notes Issuer to repurchase the Remaining 12% Senior Notes using funds provided by Purchaser or at the direction of Purchaser (the “Senior Notes Repurchase Payment”). (h) Purchaser shall not be responsible or liable for, any payment (including with respect to the 12% Senior Notes Cash Payments or with respect to the repurchase of the Remaining 12% Senior Notes), damages or obligation arising from the failure of the Company and its Subsidiaries to comply with the provisions of this Section 3.01, including, without limitation, any such failure which would result in the closing of the Exchange Offer without the consent of Purchaser.

The Exchange Offer and Note Consent Solicitation. (a) Provided that none of the events set forth in the caption “—Conditions to of the Exchange Offer” of Annex D E hereto shall have occurred or be continuing, promptly after the receipt of a written request from Purchaser to do so and the receipt of the Exchange Offer Documents (as defined below) from Purchaser, the Company shall cause the 12% Senior Notes Issuer to commence the Exchange Offer on terms consistent with Annex D. D to the Prior Agreements. The Company shall cooperate, and shall cause its Subsidiaries to cooperate, with the reasonable requests of Purchaser in connection with the Exchange Offer. The Exchange Offer shall be conducted on the terms and subject to the conditions set forth in the offer to exchange and consent solicitation statement, the letter of transmittal and other related documents (collectively, as amended from time to time in accordance with the terms set forth herein, the “Exchange Offer Documents”) and/or on such other terms as may be agreed by Purchaser and the Company as necessary or appropriate in order to facilitate obtaining the Requisite Noteholder Consents, including, without limitation, with regard to the amount of the 12% Senior Notes Cash Payments. The Exchange Offer shall require that each holder of 12% Senior Notes accepting the New Senior Notes and the 12% Senior Notes Cash Payments in exchange for such holder’s 12% Senior Notes must also consent to the Amendment to the Indenture. (b) As part of the Exchange Offer, the Company shall cause the 12% Senior Notes Issuer to solicit consents and waivers from holders of 12% Senior Notes to adopt the amendment to the Indenture and to waive the matters described under the caption “—Consents and Waivers” in Annex D E hereto (the “Amendment to the Indenture”). (c) The obligation of the Company to cause the 12% Senior Notes Issuer to accept for exchange and payment the 12% Senior Notes tendered pursuant to the Exchange Offer shall be subject to (i) its obtaining the Requisite Noteholder Consent and (ii) the satisfaction of each of the other conditions to the Exchange Offer, as set forth in the Exchange Offer Documents. The Company shall cause the 12% Senior Notes Issuer to waive any of the conditions to the Exchange Offer as may be requested by Purchaser, subject to compliance with applicable Laws, and shall not, without the consent of Purchaser, cause the 12% Senior Notes Issuer to waive any condition to the Exchange Offer or make any changes to the terms and conditions of the Exchange Offer other than as agreed between Purchaser and the Company. Notwithstanding the immediately preceding sentence, the Company need not cause the 12% Senior Notes Issuer to make any change to the terms and conditions of the Exchange Offer requested by Purchaser that decreases the consideration per 12% Senior Note payable in the Exchange Offer or imposes conditions to the Exchange Offer or related consent solicitation in addition to those set forth in Annex D E hereto that are materially adverse to holders of the 12% Senior Notes, unless such change is approved by the Company in writing. The Company shall cause the 12% Senior Notes Issuer to extend the expiration date and consent deadline of the Exchange Offer as may be reasonably requested by Purchaser. (d) The Company covenants and agrees that, promptly following the consent deadline specified in the Exchange Offer Documents, assuming receipt of the Requisite Noteholder Consent is receivedConsent, the Company shall, and shall cause the 12% Senior Notes Issuer and other Subsidiaries who are guarantors of the 12% Senior Notes under the Indenture to (and shall use its reasonable best efforts to cause the Indenture Trustee to), execute a supplement to the Indenture implementing the Amendment to the Indenture, which shall be in a form reasonably satisfactory to Purchaser and which shall implement the amendments and waivers described in the Exchange Offer Documents and shall become operative at the closing of the Exchange Offer, subject to the terms and conditions of this Agreement (including the conditions to the Exchange Offer). The Company shall cause the 12% Senior Notes Issuer, concurrent with the closing of the Exchange Offer, to (i) accept for exchange the 12% Senior Notes that have been validly tendered and not withdrawn pursuant to and in accordance with the terms and conditions of the Exchange Offer, (ii) promptly execute the New Indenture (which shall be in a form reasonably satisfactory to Purchaser) and execute and issue (and in the case of the Indenture Trustee, authenticate) the New Senior Notes, (iii) promptly deliver the New Senior Notes and pay the 12% Senior Notes Cash Payments (using funds provided by or at the direction of Purchaser) (including the payment of an early consent payment payment, if specified in the Exchange Offer Documents Documents, to holders who validly tendered and did not validly withdraw their 12% Senior Notes prior to the consent deadline, if any) to holders of 12% Senior Notes that have been accepted for exchange in the Exchange Offer. (e) Purchaser shall prepare all necessary and appropriate documentation in connection with the Exchange Offer, including the Exchange Offer Documents. The Company shall, and shall cause the 12% Senior Notes Issuer and other Subsidiaries to, cooperate with Purchaser in preparing the Exchange Offer Documents, in preparing and issuing any press release announcing the commencement, results, modification or extension of the Exchange Offer, and in preparing and disseminating any amendments or supplements to the Exchange Offer Documents. The Exchange Offer Documents (including all amendments or supplements) and all mailings to the holders of the 12% Senior Notes in connection with the Exchange Offer shall be subject to the prior review of, and comment by, the Company and Purchaser and shall be reasonably acceptable to each of them. If at any time prior to the closing of the Exchange Offer any information in the Exchange Offer Documents should be discovered by the Company or the 12% Senior Notes Issuer, on the one hand, or Purchaser, on the other hand, which should be set forth in an amendment or supplement to the Exchange Offer Documents so that the Exchange Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other party, and the Company shall cause the 12% Senior Notes Issuer to disseminate to the holders of the 12% Senior Notes an appropriate amendment or supplement prepared by Purchaser describing such information. Notwithstanding anything to the contrary in this Section 3.01, Purchaser, the Company and the Subsidiaries shall comply with the requirements of Rule 14e-1 under the Exchange Act, any U.S. state securities or “Blue Sky” laws and any other applicable Law to the extent such Law is applicable in connection with the Exchange Offer and such compliance will not be deemed a breach hereof. (f) In connection with the Exchange Offer, Purchaser may select one or more dealer managers, information agents, depositaries and other agents (collectively, “Agents”) to provide assistance in connection therewith, and the Company shall, and/or shall cause the 12% Senior Notes Issuer to, enter into customary agreements (including indemnities) with such parties so selected. Purchaser shall reimburse the Company and the 12% Senior Notes Issuer for the reasonable fees and out-of-pocket expenses paid to any Agent retained in connection with the Exchange Offer, which fees and expenses shall, after the Swap Closing, be paid out of the Proceeds in accordance with Section 7.12. The Company shall provide to Purchaser, and shall cause its Subsidiaries to, and shall use its best efforts to cause the respective officers, employees and advisors, including legal and accounting, of the Company and its Subsidiaries to, provide to Purchaser and its affiliates, its legal counsel and the Agents cooperation reasonably requested by Purchaser or such affiliates, such legal counsel or the Agents in connection with the Exchange Offer, including (i) participating in meetings, presentations, due diligence sessions and drafting sessions, (ii) executing and delivering any legal opinions, comfort letters (10b-5 letters) or documents as may be reasonably requested by Purchaser or the Agents, and (iii) using best efforts to obtain accountants’ comfort letters, consents and legal opinions, as reasonably requested by Purchaser or the Agents. (g) If the 12% Senior Notes validly tendered for exchange in the Exchange Offer are accepted for exchange by the 12% Senior Notes Issuer pursuant to Section 3.01(d) above, the Company shall, promptly after the Swap Closing, cause the 12% Senior Notes Issuer to deliver, in the manner specified in the Indenture, a notice to holders of outstanding 12% Senior Notes that were not accepted for exchange in the Exchange Offer (the “Remaining 12% Senior Notes”) offering to repurchase, in accordance with and at the price specified in Section 4.11 of the Indenture, the Remaining 12% Senior Notes. On the repurchase date specified in the repurchase notice referred to in the immediately preceding sentence, the Company shall cause the 12% Senior Notes Issuer to repurchase the Remaining 12% Senior Notes using funds provided by Purchaser or at the direction of Purchaser (the “Senior Notes Repurchase Payment”). (h) To the extent that less than all of the Remaining 12% Senior Notes outstanding after the Swap Closing are repurchased as described in Section 3.01(g), if required by the New Indenture, Purchaser and the 12% Senior Notes Issuer will apply an amount of cash equal to (i) the aggregate Senior Notes Repurchase Payment that would have been necessary to repurchase all outstanding Remaining 12% Senior Notes, minus (ii) the actual aggregate Senior Notes Repurchase Payment, to redeem the outstanding New Senior Notes in minimum denominations of $1,000 principal amount or integral multiples of $1,000 in excess thereof on a pro rata basis, at a redemption price equal to 100% of the principal amount of the New Senior Notes to be redeemed plus accrued and unpaid interest thereon to the date of redemption (the “New Senior Notes Redemption Payment”). If required by the New Indenture, the Company shall cause the 12% Senior Notes Issuer, on or promptly following the Senior Notes Repurchase Payment date (in accordance with the New Indenture), to deliver a notice to holders of New Senior Notes informing them of the aggregate principal amount of New Senior Notes to be redeemed and the date of such redemption. On the redemption date specified in the redemption notice referred to in the immediately preceding sentence, the Company shall cause the 12% Senior Notes Issuer to redeem the New Senior Notes on a pro rata basis using funds provided by Purchaser or at the direction of Purchaser in an amount equal to the New Senior Notes Redemption Payment. (i) Purchaser shall not be responsible or liable for, any payment (including with respect to the 12% Senior Notes Cash Payments or with respect to the repurchase of the Remaining 12% Senior NotesNotes or the New Senior Notes Redemption Payment), damages or obligation arising from the failure of the Company and its Subsidiaries to comply with the provisions of this Section 3.01, including, without limitation, any such failure which would result in the closing of the Exchange Offer without the consent of Purchaser.