INTEREST MARGIN
RESULTING FROM AMORTIZATION CHARGES OR NON-CASH ADJUSTMENTS) OF THE COMPANY AND
ITS SUBSIDIARIES, TAKEN AS A WHOLE (AFTER TAKING INTO ACCOUNT ANY INSURANCE
RECOVERIES REASONABLY EXPECTED IN RESPECT THEREOF), OR (II) THE ABILITY OF THE
7
COMPANY TIMELY TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED HEREBY OR BY THE
ARTICLES OF MERGER, EXCEPT WHERE SUCH EFFECT RESULTS FROM (V) DEFAULTS ON OR IN
CONNECTION WITH, OR THE FAILURE OF ANY MASTER SERVICER OR SIMILAR ADMINISTRATOR
TO ADVANCE FUNDS OR MAKE PAYMENTS IN CONNECTION WITH, THE SECURITIES LISTED ON
SCHEDULE 2.1(A)(V) OF THE COMPANY LETTER, (W) THE IMPACT OR AFTERMATH OF
HURRICANES KATRINA AND/OR RITA, (X) CHANGES IN (A) PREVAILING INTEREST RATES OR
CREDIT SPREADS, (B) PREVAILING ECONOMIC OR MARKET CONDITIONS, (C) LAWS (AS
DEFINED IN SECTION 2.3) OR INTERPRETATIONS THEREOF OR (D) IN GAAP (AS DEFINED IN
SECTION 2.5), IN ANY SUCH CASE WHICH DO NOT HAVE A MATERIALLY DISPROPORTIONATE
EFFECT (RELATIVE TO OTHER INDUSTRY PARTICIPANTS) ON THE COMPANY, (Y) CHANGES IN
NATIONAL OR INTERNATIONAL POLITICAL OR SOCIAL CONDITIONS, INCLUDING THE
ENGAGEMENT BY THE UNITED STATES OF AMERICA IN HOSTILITIES, WHETHER OR NOT
PURSUANT TO THE DECLARATION OF A NATIONAL EMERGENCY OR WAR, OR THE OCCURRENCE OF
ANY MILITARY OR TERRORIST ATTACK UPON OR WITHIN THE UNITED STATES OF AMERICA OR
ANY OF ITS TERRITORIES, POSSESSIONS OR DIPLOMATIC OR CONSULAR OFFICES OR UPON
ANY MILITARY INSTALLATION, EQUIPMENT OR PERSONNEL OF THE UNITED STATES OF
AMERICA, WHICH DO NOT HAVE A MATERIALLY DISPROPORTIONATE EFFECT (RELATIVE TO
OTHER INDUSTRY PARTICIPANTS) ON THE COMPANY OR (Z) THE ANNOUNCEMENT OF THE
IDENTITY OF PARENT OR THE ANNOUNCEMENT OR PENDENCY OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY EXPENSES INCURRED IN CONNECTION
HEREWITH.
(B)
(1) THE COMPANY HAS ALL REQUISITE POWER AND AUTHORITY TO EXECUTE
AND DELIVER THIS AGREEMENT AND THE ARTICLES OF MERGER, (2) THIS AGREEMENT HAS
BEEN AND AT THE CLOSING THE ARTICLES OF MERGER WILL BE (I) DULY AND VALIDLY
EXECUTED AND DELIVERED BY THE COMPANY AND (II) DULY AND VALIDLY AUTHORIZED BY
ALL NECESSARY CORPORATE ACTION ON THE PART OF THE COMPANY, (3) THIS AGREEMENT
CONSTITUTES THE VALID AND BINDING OBLIGATION OF THE COMPANY ENFORCEABLE AGAINST
THE COMPANY IN ACCORDANCE WITH ITS TERMS, SUBJECT AS TO ENFORCEABILITY TO
BANKRUPTCY, INSOLVENCY, REORGANIZATION, FRAUDULENT CONVEYANCE AND SIMILAR LAWS
RELATING TO CREDITORS' RIGHTS AND TO GENERAL PRINCIPLES OF EQUITY AND (4) THE
BOARD OF DIRECTORS OF THE COMPANY HAS DECLARED THE MERGER AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ADVISABLE AND IN THE BEST INTERESTS
OF ITS STOCKHOLDERS AND DIRECTED THAT IT BE SUBMITTED FOR CONSIDERATION AT A
MEETING OF THE COMPANY'S STOCKHOLDERS ENTITLED TO VOTE THEREON.
SECTION 2.2
CAPITALIZATION.
(A)
AT THE DATE HEREOF, THE AUTHORIZED CAPITAL STOCK OF THE COMPANY
CONSISTS OF 300,000,000 SHARES OF THE COMPANY COMMON STOCK AND 75,000,000 SHARES
OF PREFERRED STOCK, PAR VALUE $0.01 PER SHARE (THE "PREFERRED STOCK"; AND
TOGETHER WITH THE COMPANY COMMON STOCK, THE "CAPITAL STOCK"), OF WHICH 3,000,000
SHARES HAVE BEEN DESIGNATED "SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK"
(THE "SERIES B