FORTH IN BANKRUPTCY RULES 6004(G) AND 3020(E), AS APPLICABLE, (II) THE
REGISTRATION UNDER THE SECURITIES ACT (AS DEFINED IN SECTION 3(I)) OF RESALES OF
THE ECA SHARES, (III) FILINGS WITH RESPECT TO AND THE EXPIRATION OR TERMINATION
OF THE WAITING PERIOD UNDER THE HSR ACT RELATING TO THE SALE OF ECA SHARES TO
THE INVESTOR HEREUNDER, (IV) THE FILING WITH THE SECRETARY OF STATE OF THE STATE
OF DELAWARE OF THE CERTIFICATE OF INCORPORATION TO BE APPLICABLE TO THE COMPANY
FROM AND AFTER THE EFFECTIVE DATE AND (V) SUCH CONSENTS, APPROVALS,
AUTHORIZATIONS, REGISTRATIONS OR QUALIFICATIONS (X) AS MAY BE REQUIRED UNDER THE
NEW YORK STOCK EXCHANGE ("NYSE") OR THE NASDAQ GLOBAL MARKET ("NASDAQ") RULES
AND REGULATIONS IN ORDER TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREIN, (Y)
AS MAY BE REQUIRED UNDER STATE SECURITIES OR BLUE SKY LAWS IN CONNECTION WITH
THE PURCHASE OF ECA SHARES BY THE INVESTOR OR (Z) THE ABSENCE OF WHICH WILL NOT
HAVE OR COULD NOT REASONABLY BE EXPECTED TO HAVE, INDIVIDUALLY OR IN THE
AGGREGATE, A MATERIAL ADVERSE EFFECT.
(H)
ARM'S LENGTH.
THE COMPANY ACKNOWLEDGES AND AGREES THAT THE
INVESTOR IS ACTING SOLELY IN THE CAPACITY OF AN ARM'S LENGTH CONTRACTUAL
COUNTERPARTY TO THE COMPANY WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY
(INCLUDING IN CONNECTION WITH DETERMINING THE TERMS OF THE RIGHTS OFFERING AND
THE PURCHASE OF THE ECA SHARES) AND NOT AS A FINANCIAL ADVISOR OR A FIDUCIARY
TO, OR AN AGENT OF, THE COMPANY OR ANY OTHER PERSON.
ADDITIONALLY, THE INVESTOR
IS NOT ADVISING THE COMPANY OR ANY OTHER PERSON AS TO ANY LEGAL, TAX,
INVESTMENT, ACCOUNTING OR REGULATORY MATTERS IN ANY JURISDICTION IN RESPECT OF
THE TRANSACTIONS CONTEMPLATED HEREBY.
THE COMPANY SHALL CONSULT WITH ITS OWN
ADVISORS CONCERNING SUCH MATTERS AND SHALL BE RESPONSIBLE FOR MAKING THEIR OWN
INDEPENDENT INVESTIGATION AND APPRAISAL OF THE TRANSACTIONS CONTEMPLATED HEREBY,
AND THE INVESTOR SHALL HAVE NO RESPONSIBILITY OR LIABILITY TO THE COMPANY WITH
RESPECT THERETO.
ANY REVIEW BY THE INVESTOR OF THE COMPANY, THE TRANSACTIONS
CONTEMPLATED
9
HEREBY OR OTHER MATTERS RELATING TO SUCH TRANSACTIONS WILL BE PERFORMED SOLELY
FOR THE BENEFIT OF THE INVESTOR AND SHALL NOT BE ON BEHALF OF THE COMPANY.
(I)
FINANCIAL STATEMENTS.
THE FINANCIAL STATEMENTS AND THE RELATED
NOTES THERETO OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES INCLUDED OR
INCORPORATED BY REFERENCE IN THE EXCHANGE ACT DOCUMENTS (AS DEFINED IN
SECTION 3(J)), THE REGISTRATION STATEMENT (AS DEFINED IN SECTION 5(I)) AND THE
PROSPECTUS (AS DEFINED IN SECTION 3(K)) COMPLY OR WILL COMPLY, AS THE CASE MAY
BE, IN ALL MATERIAL RESPECTS WITH THE APPLICABLE REQUIREMENTS OF THE SECURITIES
ACT OF 1933 AND THE RULES AND REGULATIONS OF THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") THEREUNDER (COLLECTIVELY, THE "SECURITIES ACT")
AND THE SECURITIES EXCHANGE ACT OF 1934 AND THE RULES AND REGULATION OF THE
COMMISSION THEREUNDER (THE "EXCHANGE ACT"), AS APPLICABLE, AND PRESENT FAIRLY OR
WILL PRESENT FAIRLY, AS THE CASE MAY BE, IN ALL MATERIAL RESPECTS THE FINANCIAL
POSITION OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES AS OF THE DATES