COURSE OF BUSINESS"
MEANS WITH RESPECT TO ANY PERSON OR ENTITY, THE ORDINARY COURSE OF BUSINESS OF
SUCH PERSON OR ENTITY, CONSISTENT IN ALL MATERIAL RESPECTS WITH SUCH PERSON'S OR
ENTITY'S PAST PRACTICE AND CUSTOM, INCLUDING WITH RESPECT TO ANY CATEGORY,
QUANTITY OR DOLLAR AMOUNT, TERM AND FREQUENCY OF PAYMENT, DELIVERY, ACCRUAL,
EXPENSE OR ANY OTHER ACCOUNTING ENTRY.
53
(F)
THE PHRASES "THE DATE OF THIS AGREEMENT,"
"THE DATE HEREOF" AND TERMS OF SIMILAR IMPORT, UNLESS THE CONTEXT OTHERWISE
REQUIRES, SHALL BE DEEMED TO REFER TO AUGUST 9, 2007.
(G)
AS USED IN THIS AGREEMENT, THE TERM
"AFFILIATE(S)" SHALL HAVE THE MEANING SET FORTH IN RULE 12B-2 OF THE SECURITIES
EXCHANGE ACT OF 1934, AS AMENDED.
(H)
AS USED IN THIS AGREEMENT, THE WORD
"SUBSIDIARY" MEANS, WITH RESPECT TO ANY PARTY, ANY CORPORATION, PARTNERSHIP OR
OTHER ENTITY OR ORGANIZATION, WHETHER INCORPORATED OR UNINCORPORATED, OF WHICH
(I) SUCH PARTY OR ANY OTHER SUBSIDIARY OF SUCH PARTY IS A GENERAL PARTNER
(EXCLUDING SUCH PARTNERSHIPS WHERE SUCH PARTY OR ANY SUBSIDIARY OF SUCH PARTY
DOES NOT HAVE A MAJORITY OF THE VOTING INTEREST IN SUCH PARTNERSHIP) OR (II) AT
LEAST A MAJORITY OF THE SECURITIES OR OTHER INTERESTS HAVING BY THEIR TERMS
ORDINARY VOTING POWER TO ELECT A MAJORITY OF THE BOARD OF DIRECTORS OR OTHERS
PERFORMING SIMILAR FUNCTIONS WITH RESPECT TO SUCH CORPORATION OR OTHER
ORGANIZATION IS DIRECTLY OR INDIRECTLY OWNED OR CONTROLLED BY SUCH PARTY OR BY
ANY ONE OR MORE OF ITS SUBSIDIARIES, OR BY SUCH PARTY AND ONE OR MORE OF ITS
SUBSIDIARIES.
(I)
AS USED IN THIS AGREEMENT, THE TERM
"BUSINESS DAY" MEANS A DAY, OTHER THAN A SATURDAY OR A SUNDAY, ON WHICH BANKING
INSTITUTIONS IN THE CITY OF NEW YORK OR THE CITY OF SAN FRANCISCO ARE REQUIRED
TO BE OPEN.
(J)
THE EXHIBITS AND SCHEDULES TO THIS
AGREEMENT ARE HEREBY INCORPORATED AND MADE A PART HEREOF AND ARE AN INTEGRAL
PART OF THIS AGREEMENT.
ALL EXHIBITS AND SCHEDULES ANNEXED HERETO OR REFERRED
TO HEREIN ARE HEREBY INCORPORATED IN AND MADE A PART OF THIS AGREEMENT AS IF SET
FORTH IN FULL HEREIN.
DISCLOSURE OF ANY ITEM ON ANY SCHEDULE SHALL NOT
CONSTITUTE AN ADMISSION OR INDICATION THAT SUCH ITEM OR MATTER IS MATERIAL OR
WOULD HAVE A MATERIAL ADVERSE EFFECT.
NO DISCLOSURE ON A SCHEDULE RELATING TO A
POSSIBLE BREACH OR VIOLATION OF ANY CONTRACT OR LAW SHALL BE CONSTRUED AS AN
ADMISSION OR INDICATION THAT BREACH OR VIOLATION EXISTS OR HAS ACTUALLY
OCCURRED.
ANY CAPITALIZED TERMS USED IN ANY SCHEDULE OR EXHIBIT BUT NOT
OTHERWISE DEFINED THEREIN SHALL BE DEFINED AS SET FORTH IN THIS AGREEMENT.
(K)
AN ITEM ARISING WITH RESPECT TO A SPECIFIC
REPRESENTATION OR WARRANTY SHALL BE DEEMED TO BE "REFLECTED ON" OR "SET FORTH
IN" A BALANCE SHEET OR FINANCIAL STATEMENTS, TO THE EXTENT ANY SUCH PHRASE
APPEARS IN SUCH REPRESENTATION OR WARRANTY, IF (A) THERE IS A RESERVE, ACCRUAL
OR OTHER SIMILAR ITEM UNDERLYING A NUMBER ON SUCH BALANCE SHEET OR FINANCIAL
STATEMENTS THAT RELATED TO THE SUBJECT