THE COMPANY IN PARAGRAPHS (A)-(L), (N), (Q),
(T), (U) AND (AA)-(EE) OF
25
SECTION 3 SHALL BE TRUE AND CORRECT ON THE DATE HEREOF AND AS IF MADE ON THE
CLOSING DATE, THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY IN PARAGRAPHS
(M), (O), (P), (R), (S) AND (V)-(Z) OF SECTION 3 SHALL BE TRUE AND CORRECT ON
THE DATE HEREOF (AND SHALL NOT BE REQUIRED TO BE TRUE ON ANY SUBSEQUENT DATE),
AND THE COMPANY SHALL HAVE COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS
IN THIS AGREEMENT AND IN THE REGISTRATION RIGHTS AGREEMENT.
(S)
OFFICER'S CERTIFICATE.
THE INVESTOR SHALL HAVE RECEIVED ON AND AS
OF THE CLOSING DATE A CERTIFICATE OF THE CHIEF FINANCIAL OFFICER OR CHIEF
ACCOUNTING OFFICER OF THE COMPANY AND ONE ADDITIONAL SENIOR EXECUTIVE OFFICER OF
THE COMPANY WHO IS SATISFACTORY TO THE INVESTOR (I) CONFIRMING THAT THE COMPANY
HAS SATISFIED ALL CONDITIONS ON ITS PART TO BE PERFORMED OR SATISFIED HEREUNDER
AT OR PRIOR TO SUCH CLOSING DATE, (II) TO THE EFFECT SET FORTH IN SECTIONS 7(F)
AND 7(R) AND (III) IF THE REGISTRATION STATEMENT HAS BEEN DECLARED EFFECTIVE AT
OR PRIOR TO THE CLOSING DATE, CONFIRMING THAT SUCH OFFICERS HAVE CAREFULLY
REVIEWED THE REGISTRATION STATEMENT AND THE PROSPECTUS AND, TO THE BEST
KNOWLEDGE OF SUCH OFFICERS, THE INFORMATION SET FORTH THEREIN IS TRUE AND
CORRECT.
(T)
BANKRUPTCY COURT APPROVAL.
THE REGISTRATION RIGHTS AGREEMENT
SHALL HAVE BEEN APPROVED BY THE BANKRUPTCY COURT IN A FINAL ORDER AND SHALL HAVE
BEEN EXECUTED BY THE PARTIES THERETO IN SUBSTANTIALLY THE SAME FORM AS THE FORMS
THEREOF FILED WITH THE BANKRUPTCY COURT.
(U)
FEES, ETC.
ALL FEES AND OTHER AMOUNTS REQUIRED TO BE PAID OR
REIMBURSED TO THE INVESTOR AS OF THE CLOSING DATE SHALL HAVE BEEN PAID OR
REIMBURSED.
8.
INDEMNIFICATION.
(A)
SUBJECT TO THE APPROVAL OF THIS AGREEMENT BY THE BANKRUPTCY COURT,
WHETHER OR NOT THE RIGHTS OFFERING IS CONSUMMATED OR THIS AGREEMENT OR THE
BACKSTOP COMMITMENT IS TERMINATED, THE COMPANY (IN SUCH CAPACITY, THE
"INDEMNIFYING PARTY") SHALL INDEMNIFY AND HOLD HARMLESS THE INVESTOR AND
ULTIMATE PURCHASERS, THEIR RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS,
DIRECTORS, EMPLOYEES, AGENTS AND CONTROLLING PERSONS (EACH AN "INDEMNIFIED
PERSON") FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES, LIABILITIES AND
REASONABLE EXPENSES, JOINT OR SEVERAL, TO WHICH ANY SUCH INDEMNIFIED PERSON MAY
BECOME SUBJECT ARISING OUT OF OR IN CONNECTION WITH ANY CLAIM, CHALLENGE,
LITIGATION, INVESTIGATION OR PROCEEDING WITH RESPECT TO THE RIGHTS OFFERING, THE
BACKSTOP COMMITMENT, THE TRANSACTION DOCUMENTS, THE REGISTRATION STATEMENT OR
THE PROSPECTUS OR THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING WITHOUT
LIMITATION, PAYMENT OF THE TRANSACTION EXPENSES, BACKSTOP FEE OR TERMINATION
FEE, IF ANY, DISTRIBUTION OF RIGHTS, PURCHASE AND SALE OF SHARES IN THE RIGHTS
OFFERING AND PURCHASE AND SALE OF ECA SHARES PURSUANT TO THIS AGREEMENT, OR ANY
BREACH OF THE COMPANY OF THIS AGREEMENT OR THE REGISTRATION RIGHTS AGREEMENT,
REGARDLESS OF WHETHER ANY OF SUCH INDEMNIFIED PERSONS IS A PARTY THERETO, AND TO
REIMBURSE SUCH INDEMNIFIED PERSONS FOR ANY REASONABLE LEGAL OR OTHER REASONABLE
OUT-OF-POCKET EXPENSES