ONLY BE AVAILABLE TO THE COMPANY AFTER PAULSON HAS RECEIVED
WRITTEN NOTICE OF SUCH BREACH AND HAS FAILED TO CURE SUCH BREACH WITHIN FIVE
BUSINESS DAYS FOLLOWING SUCH NOTICE;
(E)
BY PAULSON, IN THE EVENT THAT AFTER THE DATE HEREOF ANY OF THE
DEBTORS SHALL HAVE MADE A PUBLIC ANNOUNCEMENT, ENTERED INTO AN AGREEMENT OR
FILED ANY PLEADING EVIDENCING ITS INTENTION TO SUPPORT OR OTHERWISE SUPPORTS ANY
TRANSACTION WITH RESPECT TO THE REORGANIZATION OR SALE OF ANY OF THE DEBTORS OR
TAKES ANY OTHER ACTION THAT IS OTHERWISE MATERIALLY INCONSISTENT WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, THE DISCLOSURE STATEMENT OR THE
EXISTING PLAN (AS MODIFIED BY THE PLAN MODIFICATION);
(F)
BY PAULSON, IF WITHOUT THE PRIOR WRITTEN CONSENT OF PAULSON THE
COMPANY SHALL HAVE (I) MATERIALLY AMENDED THE EXISTING PLAN, THE PLAN OR THE
DISCLOSURE STATEMENT, OR (II) CHANGED THE PRO FORMA CAPITALIZATION OF THE
COMPANY CONTEMPLATED BY THE EXISTING PLAN (AS AMENDED BY THE PLAN MODIFICATION)
OR THE DISCLOSURE STATEMENT IN A MANNER THAT ADVERSELY AFFECTS THE EQUITY
VALUATION OF THE COMPANY OR MODIFIED THE CAPITAL STRUCTURE OF THE COMPANY
CONTEMPLATED BY THE EXISTING PLAN (AS AMENDED BY THE PLAN MODIFICATION) OR THE
DISCLOSURE STATEMENT;
(G)
BY PAULSON, IF THERE SHALL HAVE OCCURRED FOLLOWING THE DATE OF
THIS AGREEMENT A CHANGE, EFFECT, EVENT, OCCURRENCE, DEVELOPMENT, CIRCUMSTANCE OR
STATE OF FACTS, THAT HAS HAD OR WOULD REASONABLY BE EXPECTED TO HAVE OR RESULT
IN A MATERIAL ADVERSE EFFECT;
(H)
BY PAULSON, IF THE SOLICITATION FOR THE PLAN ELECTION HAS NOT BEEN
COMMENCED BY THE DATE THAT IS FIVE BUSINESS DAYS FOLLOWING THE ENTRY OF THE
APPROVAL ORDER BY THE BANKRUPTCY COURT OR IF SUCH SOLICITATION SHALL NOT HAVE
CONCLUDED BY THE PLAN ELECTION DEADLINE;
(I)
BY PAULSON, IF THE CONFIRMATION ORDER SHALL NOT HAVE BEEN ENTERED
BY THE BANKRUPTCY COURT AND BECOME A FINAL ORDER BY FEBRUARY 15, 2010;
(J)
BY PAULSON, IF THE CONFIRMATION ORDER IS MODIFIED IN ANY MATERIAL
RESPECT THAT IS ADVERSE TO THE STANDBY PURCHASERS WITHOUT ITS CONSENT;
(K)
BY PAULSON, IF THE CHAPTER 11 CASES ARE CONVERTED TO CASES UNDER
CHAPTER 7 OF THE BANKRUPTCY CODE, A TRUSTEE OR EXAMINER WITH EXPANDED POWERS IS
APPOINTED PURSUANT TO THE BANKRUPTCY CODE OR THE BANKRUPTCY COURT ENTERS AN
ORDER PURSUANT TO SECTION 362 OF THE BANKRUPTCY CODE LIFTING THE AUTOMATIC STAY
WITH RESPECT TO ANY MATERIAL PORTION OF THE PROPERTIES AND ASSETS OF THE
DEBTORS; OR
(L)
BY THE COMPANY OR PAULSON, IF THE CLOSING HAS NOT OCCURRED ON OR
PRIOR TO FEBRUARY 28, 2010;
23
provided, however, that the right to terminate this Agreement under the
foregoing subsections (b) through (d) shall not be available to any party whose
failure to fulfill any of its obligations, or whose breach of any representation
or warranty, under this Agreement has been the cause of or resulted in the event
or failure otherwise giving rise to the termination right.
8.2
Effect of Termination.
In the event of this Agreement is duly
terminated in accordance with Section 8.1,