OF IMMEDIATELY AVAILABLE FUNDS TO THE ACCOUNT SPECIFIED
BY THE INVESTOR TO THE COMPANY AT LEAST 24 HOURS IN ADVANCE; PROVIDED, THAT IF
THE INVESTOR RECEIVES THE BACKSTOP FEE, THE INVESTOR SHALL WAIVE ANY OF ITS
RIGHTS TO RECEIVE PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY.
EXCEPT AS SET FORTH IN THIS SUBSECTION (B),
THE BACKSTOP FEE WILL BE NONREFUNDABLE WHEN PAID.
(C)
UPON THE ENTRY OF THE AGREEMENT ORDER, THE COMPANY WILL REIMBURSE
OR PAY, AS THE CASE MAY BE, THE OUT-OF-POCKET EXPENSES REASONABLY INCURRED BY
THE INVESTOR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING THE
FILING FEE, IF ANY, REQUIRED BY THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT
OF 1976 (THE "HSR ACT") AND EXPENSES RELATED THERETO AND ALL BANKRUPTCY COURT
AND OTHER JUDICIAL AND REGULATORY PROCEEDINGS RELATED TO SUCH TRANSACTIONS
(COLLECTIVELY, "TRANSACTION EXPENSES"), INCLUDING ALL REASONABLE FEES AND
EXPENSES OF BOTH CAHILL GORDON & REINDEL LLP AND CRONIN & VRIS, LLP, COUNSELS TO
THE INVESTOR, AND STROOCK & STROOCK & LAVAN LLP, COUNSEL FOR THE ULTIMATE
PURCHASERS, AND REASONABLE FEES AND EXPENSES OF ANY OTHER PROFESSIONALS RETAINED
BY THE INVESTOR WITH THE PRIOR APPROVAL OF THE COMPANY
5
IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN AND THOSE CONTEMPLATED
BY THE TERM SHEET.
SUCH REIMBURSEMENT OR PAYMENT SHALL BE MADE BY THE COMPANY
WITHIN TEN (10) DAYS OF PRESENTATION OF AN INVOICE APPROVED BY THE INVESTOR,
WITHOUT BANKRUPTCY COURT REVIEW OR FURTHER BANKRUPTCY COURT ORDER, WHETHER OR
NOT THE TRANSACTIONS CONTEMPLATED HEREBY ARE CONSUMMATED; IT BEING UNDERSTOOD
THAT IN THE EVENT THE AGREEMENT ORDER IS APPEALED, AND THE HIGHEST COURT TO
WHICH THE AGREEMENT ORDER WAS APPEALED ISSUES A FINAL ORDER VACATING OR
REVERSING THE AGREEMENT ORDER AND FURTHER ORDERS DISGORGEMENT OF ALL OR A
PORTION OF THE TRANSACTION EXPENSES, THE INVESTOR SHALL PROMPTLY RETURN TO THE
COMPANY THE PORTION OF THE TRANSACTION EXPENSES REQUIRED TO BE SO DISGORGED.
THESE OBLIGATIONS ARE IN ADDITION TO, AND DO NOT LIMIT, THE COMPANY'S
OBLIGATIONS UNDER SECTION 8.
(D)
ON THE CLOSING DATE (AS DEFINED IN SECTION 2(E)), THE INVESTOR
WILL PURCHASE, AND THE COMPANY WILL SELL, ONLY SUCH NUMBER OF UNSUBSCRIBED
SHARES AS ARE LISTED IN THE PURCHASE NOTICE, WITHOUT PREJUDICE TO THE RIGHTS OF
THE INVESTOR TO SEEK LATER AN UPWARD OR DOWNWARD ADJUSTMENT IF THE NUMBER OF
UNSUBSCRIBED SHARES IN SUCH PURCHASE NOTICE IS INACCURATE.
(E)
DELIVERY OF THE ECA SHARES WILL BE MADE BY THE COMPANY TO THE
ACCOUNT OF THE INVESTOR (OR TO SUCH OTHER ACCOUNTS AS THE INVESTOR MAY
DESIGNATE) AT 9:00 A.M., NEW YORK CITY TIME, ON THE EFFECTIVE DATE (THE "CLOSING
DATE") AGAINST PAYMENT OF THE AGGREGATE PURCHASE PRICE FOR THE ECA SHARES BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO THE ACCOUNT SPECIFIED BY THE
COMPANY TO THE INVESTOR AT LEAST 24 HOURS IN ADVANCE.
(F)
ALL ECA SHARES WILL BE DELIVERED WITH ANY AND ALL ISSUE, STAMP,
TRANSFER OR SIMILAR TAXES OR DUTIES PAYABLE IN CONNECTION WITH SUCH DELIVERY
DULY PAID BY THE COMPANY TO THE