EXTENT REQUIRED UNDER THE CONFIRMATION ORDER OR
APPLICABLE LAW.
(G)
THE DOCUMENTS TO BE DELIVERED ON THE CLOSING DATE BY OR ON BEHALF
OF THE PARTIES HERETO AND THE ECA SHARES WILL BE DELIVERED AT THE OFFICES OF
CADWALADER, WICKERSHAM & TAFT LLP, ONE WORLD FINANCIAL CENTER, NEW YORK, NEW
YORK 10281 ON THE CLOSING DATE.
(H)
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE
INVESTOR, IN ITS SOLE DISCRETION, MAY DESIGNATE THAT SOME OR ALL OF THE ECA
SHARES BE ISSUED IN THE NAME OF, AND DELIVERED TO, ONE OR MORE OF ITS AFFILIATES
OR TO ANY OTHER PERSON, INCLUDING ANY ULTIMATE PURCHASER, SO LONG AS SUCH PERSON
IS NOT A COMPETITOR.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY
REPRESENTS AND WARRANTS TO, AND AGREES WITH, THE INVESTOR AS FOLLOWS:
(A)
INCORPORATION AND QUALIFICATION.
THE COMPANY AND EACH OF ITS
SUBSIDIARIES HAS BEEN DULY INCORPORATED AND IS VALIDLY EXISTING AS A CORPORATION
IN GOOD STANDING UNDER THE LAWS OF THEIR RESPECTIVE JURISDICTIONS OF
INCORPORATION, WITH THE REQUISITE POWER AND AUTHORITY TO OWN ITS PROPERTIES AND
CONDUCT ITS BUSINESS AS CURRENTLY CONDUCTED.
6
EACH OF THE COMPANY AND ITS SUBSIDIARIES HAS BEEN DULY QUALIFIED AS A FOREIGN
CORPORATION FOR THE TRANSACTION OF BUSINESS AND IS IN GOOD STANDING UNDER THE
LAWS OF EACH OTHER JURISDICTION IN WHICH IT OWNS OR LEASES PROPERTIES OR
CONDUCTS ANY BUSINESS SO AS TO REQUIRE SUCH QUALIFICATION, EXCEPT TO THE EXTENT
THE FAILURE TO BE SO QUALIFIED OR BE IN GOOD STANDING HAS NOT HAD OR COULD NOT
REASONABLY BE EXPECTED TO HAVE, INDIVIDUALLY OR IN THE AGGREGATE, A MATERIAL
ADVERSE EFFECT ON THE BUSINESS, RESULTS OF OPERATIONS, PROPERTY OR FINANCIAL
CONDITION OF THE COMPANY AND ITS SUBSIDIARIES TAKEN AS A WHOLE, AS SUCH BUSINESS
IS PROPOSED TO BE CONDUCTED AS CONTEMPLATED BY THE TERM SHEET, DISCLOSURE
STATEMENT (AS DEFINED IN SECTION 5(B)) AND THE AMENDED PLAN, OR ON THE ABILITY
OF THE COMPANY, SUBJECT TO THE APPROVALS AND OTHER AUTHORIZATIONS SET FORTH IN
SECTION 3(G), TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR
THE AMENDED PLAN (A "MATERIAL ADVERSE EFFECT").
(B)
CORPORATE POWER AND AUTHORITY.
(I)
THE COMPANY HAS THE REQUISITE CORPORATE POWER AND AUTHORITY TO ENTER
INTO, EXECUTE AND DELIVER THIS AGREEMENT AND, SUBJECT TO ENTRY OF THE AGREEMENT
ORDER AND THE CONFIRMATION ORDER (TOGETHER, THE "COURT ORDERS") AND THE
EXPIRATION, OR WAIVER BY THE BANKRUPTCY COURT, OF THE 10-DAY PERIOD SET FORTH IN
RULES 6004(G) AND 3020(E) OF THE FEDERAL RULES OF BANKRUPTCY PROCEDURE (THE
"BANKRUPTCY RULES"), RESPECTIVELY, TO PERFORM ITS OBLIGATIONS HEREUNDER AND
THEREUNDER, INCLUDING THE ISSUANCE OF THE RIGHTS AND SHARES AND PURCHASED
SHARES.
THE COMPANY HAS TAKEN ALL NECESSARY CORPORATE ACTION REQUIRED FOR THE
DUE AUTHORIZATION, EXECUTION, DELIVERY AND PERFORMANCE BY IT OF THIS AGREEMENT,
INCLUDING THE ISSUANCE OF THE RIGHTS AND SHARES AND PURCHASED SHARES, OTHER THAN
BOARD OF DIRECTORS' APPROVAL OF, OR OTHER BOARD ACTION TO BE TAKEN WITH RESPECT
TO, THE DOCUMENTS TO IMPLEMENT THE RIGHTS OFFERING.
(II)
WHEN EXECUTED AND