and at the
present time is able to afford a complete loss of such investment and (d) is an
institutional "accredited investor" (as that term is defined by Rule 501 under
the Securities Act).
4.4
Claims Ownership.
Such Standby Purchaser and its Affiliates owns
of record and beneficially the Claims of the Debtors, and has trade date
confirmations as to the Claims of the Debtors, as separately disclosed in
writing by the Standby Purchasers to the Company.
Except as to any Claims of
the Debtors subject to such trade date confirmations, such Standby Purchaser or
such Affiliates has the right to vote such Claims in the Chapter 11 Cases and
does not own of record or beneficially or have the right to vote any other
Claims or other securities of the Debtors in the Chapter 11 Cases or otherwise.
4.5
Available Funds.
Such Standby Purchaser has, and will have at the
Closing, sufficient funds in its possession to permit it to acquire and pay for
the shares of New Common Stock to be purchased by it and to otherwise perform
and pay for its obligations under this Agreement.
SECTION 5.
COVENANTS AND ADDITIONAL AGREEMENTS
5.1
Confidentiality.
Paulson and each Standby Purchaser acknowledges
and agrees that (a) the information being provided to it in connection with the
consummation of the transactions contemplated hereby is subject to the terms of
a confidentiality agreement between Paulson and the Company dated as of
August 2009 (the "Confidentiality Agreement"), the terms of which are
incorporated herein by reference, and (b) it is bound by the terms and
conditions of the Confidentiality Agreement and the Confidentiality Agreement is
in full force and effect.
15
5.2
FURTHER ACTIONS.
(A)
UPON THE TERMS AND SUBJECT TO THE CONDITIONS AND LIMITATIONS OF
THIS AGREEMENT, INCLUDING THE PROVISIONS IMMEDIATELY BELOW, EACH PARTY SHALL USE
ITS COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE CLOSING TO OCCUR AS PROMPTLY AS
PRACTICABLE.
(B)
WITHOUT LIMITING THE GENERALITY OF SECTION 5.2(A), THE COMPANY
SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO PROMPTLY TAKE, OR CAUSE TO BE
TAKEN, ALL ACTIONS AND PROMPTLY DO, OR CAUSE TO BE DONE, ALL THINGS NECESSARY,
PROPER OR ADVISABLE IN ORDER TO (I) OBTAIN THE CONFIRMATION ORDER WITH RESPECT
TO THE PLAN, (II) INCLUDE IN THE CONFIRMATION ORDER THE APPROVAL OF THE AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION AND THE AMENDED AND RESTATED BY-LAWS
AND (III) CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THE PLAN ON TERMS
CONSISTENT WITH THE TERMS SET FORTH IN THE PLAN, INCLUDING WITHOUT LIMITATION
THE FILING OF THE AMENDED AND RESTATED CERTIFICATE OF INCORPORATION WITH THE
SECRETARY OF STATE OF THE STATE OF DELAWARE AND THE ADOPTION OF THE AMENDED AND
RESTATED BY-LAWS BY THE COMPANY.
(C)
IF ANY OBJECTIONS ARE ASSERTED WITH RESPECT TO THE STANDBY
PURCHASE OR THE OTHER TRANSACTIONS CONTEMPLATED HEREBY UNDER ANY LAW OR IF ANY
SUIT IS INSTITUTED (OR THREATENED TO BE INSTITUTED) BY ANY APPLICABLE
GOVERNMENTAL ENTITY OR ANY PRIVATE PARTY CHALLENGING ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY AS VIOLATIVE OF