THE LAST 17 DAYS OF THE RESTRICTED
PERIOD, THE COMPANY ISSUES AN EARNINGS RELEASE OR MATERIAL NEWS OR A MATERIAL
EVENT RELATING TO THE COMPANY OCCURS; OR (2) PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD, THE COMPANY ANNOUNCES THAT IT WILL RELEASE EARNINGS RESULTS
DURING THE 16-DAY PERIOD BEGINNING ON THE LAST DAY OF THE RESTRICTED PERIOD, THE
RESTRICTIONS IMPOSED BY THIS AGREEMENT SHALL CONTINUE TO APPLY UNTIL THE
EXPIRATION OF THE 18-DAY PERIOD BEGINNING ON THE ISSUANCE OF THE EARNINGS
RELEASE OR THE OCCURRENCE OF THE MATERIAL NEWS OR MATERIAL EVENT.
(K)
USE OF PROCEEDS.
THE COMPANY WILL APPLY THE NET PROCEEDS FROM THE
SALE OF THE SHARES AND THE PURCHASED SHARES AS PROVIDED IN THE TERM SHEET.
(L)
NO STABILIZATION.
THE COMPANY WILL NOT TAKE, DIRECTLY OR
INDIRECTLY, ANY ACTION DESIGNED TO OR THAT COULD REASONABLY BE EXPECTED TO CAUSE
OR RESULT IN ANY STABILIZATION OR MANIPULATION OF THE PRICE OF THE NEW COMMON
STOCK.
(M)
REGISTRATION RIGHTS AGREEMENT.
THE COMPANY WILL FILE WITH THE
BANKRUPTCY COURT AS SOON AS PRACTICABLE AFTER THE DATE HEREOF, BUT IN NO EVENT
LATER THAN FEBRUARY 15, 2007, A FORM OF A REGISTRATION RIGHTS AGREEMENT (THE
"REGISTRATION RIGHTS AGREEMENT") IN FORM AND SUBSTANCE REASONABLY SATISFACTORY
TO THE COMPANY AND THE INVESTOR AND WHICH SHALL INCLUDE THE TERMS SET FORTH IN
EXHIBIT B HERETO.
THE COMPANY AND THE INVESTOR SHALL USE COMMERCIALLY
REASONABLE EFFORTS TO NEGOTIATE AND EXECUTE,
21
AND SEEK BANKRUPTCY COURT APPROVAL OF, THE REGISTRATION RIGHTS AGREEMENT AS
PROMPTLY AS PRACTICABLE.
6.
ADDITIONAL COVENANTS OF THE INVESTOR.
THE INVESTOR AGREES WITH
THE COMPANY:
(A)
INFORMATION.
TO PROVIDE THE COMPANY WITH SUCH INFORMATION AS THE
COMPANY REASONABLY REQUESTS REGARDING THE INVESTOR FOR INCLUSION IN THE
REGISTRATION STATEMENT AND THE DISCLOSURE STATEMENT.
(B)
HSR ACT.
TO USE REASONABLE BEST EFFORTS TO PROMPTLY PREPARE AND
FILE ALL NECESSARY DOCUMENTATION AND TO EFFECT ALL APPLICATIONS THAT ARE
NECESSARY OR ADVISABLE UNDER THE HSR ACT SO THAT THE APPLICABLE WAITING PERIOD
SHALL HAVE EXPIRED OR BEEN TERMINATED THEREUNDER WITH RESPECT TO THE PURCHASE OF
ECA SHARES HEREUNDER, AND NOT TO TAKE ANY ACTION THAT IS INTENDED OR REASONABLY
LIKELY TO MATERIALLY IMPEDE OR DELAY THE ABILITY OF THE PARTIES TO OBTAIN ANY
NECESSARY APPROVALS REQUIRED FOR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
(C)
ENTRY OF THE AGREEMENT ORDER.
TO USE COMMERCIALLY REASONABLE
EFFORTS TO FACILITATE THE ENTRY OF THE AGREEMENT ORDER.
(D)
NO ACTION IN BANKRUPTCY COURT.
TO NOT FILE ANY PLEADING OR TAKE
ANY OTHER ACTION IN THE BANKRUPTCY COURT WITH RESPECT TO THIS AGREEMENT, THE
AMENDED PLAN, THE DISCLOSURE STATEMENT OR THE CONFIRMATION ORDER OF THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY THAT IS
INCONSISTENT IN ANY MATERIAL RESPECT WITH THIS AGREEMENT OR THE COMPANY'S
EFFORTS TO OBTAIN THE ENTRY OF COURT ORDERS CONSISTENT WITH THIS AGREEMENT.
(E)
TRANSFER RESTRICTIONS.
THE INVESTOR COVENANTS AND AGREES THAT ECA
SHARES WILL ONLY BE DISPOSED OF BY IT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE