SALES WITHIN
NOT MORE THAN 14 DAYS FOLLOWING CLOSING, THE FUNDS SUBJECT TO SUCH CONTRACTUAL
OBLIGATIONS SHALL BE CONSIDERED TO BE PROCEEDS RECEIVED FOR PURPOSES OF THIS
PROVISION.
(2)
THE OBLIGATION OF EACH PURCHASER TO CONSUMMATE THE PURCHASE OF SHARES TO
BE PURCHASED BY IT AT THE CLOSING IS ALSO SUBJECT TO THE FULFILLMENT OR WRITTEN
WAIVER BY SUCH PURCHASER PRIOR TO THE CLOSING OF EACH OF THE FOLLOWING
CONDITIONS:
(A)
THE COMPANY SHALL HAVE PERFORMED IN ALL MATERIAL RESPECTS ALL OBLIGATIONS
REQUIRED TO BE PERFORMED BY IT AT OR PRIOR TO CLOSING; AND
(B)
SUCH PURCHASER SHALL HAVE RECEIVED A CERTIFICATE SIGNED ON BEHALF OF THE
COMPANY BY A SENIOR EXECUTIVE OFFICER CERTIFYING TO THE EFFECT THAT THE
CONDITIONS SET FORTH IN SECTION 1.2(C)(2)(A) HAS BEEN SATISFIED.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1
DISCLOSURE. (A)
ON OR PRIOR TO THE DATE HEREOF, THE COMPANY DELIVERED TO
EACH PURCHASER AND EACH PURCHASER DELIVERED TO THE COMPANY A SCHEDULE
("DISCLOSURE SCHEDULE") SETTING FORTH, AMONG OTHER THINGS, ITEMS THE DISCLOSURE
OF WHICH IS NECESSARY OR APPROPRIATE EITHER IN RESPONSE TO AN EXPRESS DISCLOSURE
REQUIREMENT CONTAINED IN A PROVISION HEREOF OR AS AN EXCEPTION TO ONE OR MORE
REPRESENTATIONS OR WARRANTIES CONTAINED IN SECTION 2.2 WITH RESPECT TO THE
COMPANY, OR IN SECTION 2.3 WITH RESPECT TO SUCH PURCHASER, OR TO ONE OR MORE OF
ITS COVENANTS CONTAINED IN ARTICLE III.
(B)
AS USED IN THIS AGREEMENT, ANY REFERENCE TO ANY FACT, CHANGE, CIRCUMSTANCE
OR EFFECT BEING "MATERIAL" WITH RESPECT TO THE COMPANY MEANS SUCH FACT, CHANGE,
CIRCUMSTANCE OR
4
EFFECT IS MATERIAL IN RELATION TO THE BUSINESS, RESULTS OF OPERATIONS OR
FINANCIAL CONDITION OF THE COMPANY AND THE COMPANY SUBSIDIARIES TAKEN AS A
WHOLE. AS USED IN THIS AGREEMENT, THE TERM "MATERIAL ADVERSE EFFECT" MEANS ANY
CIRCUMSTANCE, EVENT, CHANGE, DEVELOPMENT OR EFFECT THAT, INDIVIDUALLY OR IN THE
AGGREGATE, (1) IS MATERIAL AND ADVERSE TO THE BUSINESS, RESULTS OF OPERATIONS OR
FINANCIAL CONDITION OF THE COMPANY AND COMPANY SUBSIDIARIES TAKEN AS A WHOLE OR
(2) WOULD MATERIALLY IMPAIR THE ABILITY OF THE COMPANY TO PERFORM ITS
OBLIGATIONS UNDER THIS AGREEMENT OR TO CONSUMMATE THE CLOSING; PROVIDED,
HOWEVER, THAT IN DETERMINING WHETHER A MATERIAL ADVERSE EFFECT HAS OCCURRED,
THERE SHALL BE EXCLUDED THE FOLLOWING: (A) CHANGES IN GENERALLY ACCEPTED
ACCOUNTING PRINCIPLES OR REGULATORY ACCOUNTING PRINCIPLES APPLICABLE TO BANKS,
SAVINGS ASSOCIATIONS OR THEIR HOLDING COMPANIES, (B) CHANGES IN LAWS, RULES AND
REGULATIONS OF GENERAL APPLICABILITY OR INTERPRETATIONS THEREOF BY GOVERNMENTAL
ENTITIES, (C) ACTIONS OR OMISSIONS OF THE COMPANY TAKEN IN ACCORDANCE WITH THE
TERMS OF THIS AGREEMENT, (D) CHANGES IN GENERAL ECONOMIC, MONETARY OR FINANCIAL
CONDITIONS, INCLUDING CHANGES IN PREVAILING INTEREST RATES, CREDIT MARKETS,
SECONDARY MORTGAGE MARKET CONDITIONS OR HOUSING PRICE APPRECIATION/DEPRECIATION
TRENDS, (E) CHANGES IN THE MARKET PRICE OR TRADING VOLUMES OF THE COMMON STOCK
OR THE COMPANY'S OTHER SECURITIES, (F) THE FAILURE OF THE COMPANY TO MEET ANY
INTERNAL OR PUBLIC PROJECTIONS, FORECASTS, ESTIMATES OR GUIDANCE (INCLUDING
GUIDANCE AS TO "EARNINGS DRIVERS") FOR ANY PERIOD ENDING ON OR AFTER
DECEMBER 31, 2007,