TO ANY
PARTICULAR SECTION OR PROVISION, UNLESS THE CONTEXT REQUIRES OTHERWISE.
THE
TABLE OF CONTENTS AND HEADINGS CONTAINED IN THIS AGREEMENT ARE FOR REFERENCE
PURPOSES ONLY AND ARE NOT PART OF THIS AGREEMENT.
WHENEVER THE WORDS "INCLUDE,"
"INCLUDES" OR "INCLUDING" ARE USED IN THIS AGREEMENT, THEY SHALL BE DEEMED
FOLLOWED BY THE WORDS "WITHOUT LIMITATION." NO RULE OF CONSTRUCTION AGAINST THE
DRAFTSPERSON SHALL BE APPLIED IN CONNECTION WITH THE INTERPRETATION OR
ENFORCEMENT OF THIS AGREEMENT, AS THIS AGREEMENT IS THE PRODUCT OF NEGOTIATION
BETWEEN SOPHISTICATED PARTIES ADVISED BY COUNSEL.
ALL REFERENCES TO "$" OR
"DOLLARS" MEAN THE LAWFUL CURRENCY OF THE UNITED STATES OF AMERICA.
EXCEPT AS
EXPRESSLY STATED IN THIS AGREEMENT, ALL REFERENCES TO ANY STATUTE, RULE OR
REGULATION ARE TO THE STATUTE, RULE OR REGULATION AS AMENDED, MODIFIED,
SUPPLEMENTED OR REPLACED FROM TIME TO TIME (AND, IN THE CASE OF STATUTES,
INCLUDE ANY RULES AND REGULATIONS PROMULGATED UNDER THE STATUTE) AND TO ANY
SECTION OF ANY STATUTE, RULE OR REGULATION INCLUDE ANY SUCCESSOR TO THE
SECTION.
REFERENCES TO A "BUSINESS DAY" SHALL MEAN ANY DAY EXCEPT SATURDAY,
SUNDAY AND ANY DAY ON WHICH BANKING INSTITUTIONS IN THE STATE OF NEW YORK
GENERALLY ARE AUTHORIZED OR REQUIRED BY LAW OR OTHER GOVERNMENTAL ACTIONS TO
CLOSE.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1
DISCLOSURE.
(A)
"COMPANY MATERIAL ADVERSE EFFECT" MEANS A
MATERIAL ADVERSE EFFECT ON (I) THE BUSINESS, RESULTS OF OPERATION OR FINANCIAL
CONDITION OF THE COMPANY AND ITS CONSOLIDATED SUBSIDIARIES TAKEN AS A WHOLE;
PROVIDED, HOWEVER, THAT COMPANY MATERIAL ADVERSE EFFECT SHALL NOT BE DEEMED TO
INCLUDE THE EFFECTS OF (A) CHANGES AFTER THE DATE OF THE LETTER AGREEMENT (THE
"SIGNING DATE") IN GENERAL BUSINESS, ECONOMIC OR MARKET CONDITIONS (INCLUDING
CHANGES GENERALLY IN PREVAILING INTEREST RATES, CREDIT AVAILABILITY AND
LIQUIDITY, CURRENCY EXCHANGE RATES AND PRICE LEVELS OR TRADING VOLUMES IN THE
UNITED STATES OR FOREIGN SECURITIES OR CREDIT MARKETS), OR ANY OUTBREAK OR
ESCALATION OF HOSTILITIES, DECLARED OR UNDECLARED ACTS OF WAR OR TERRORISM, IN
EACH CASE GENERALLY AFFECTING THE INDUSTRIES IN WHICH THE COMPANY AND ITS
SUBSIDIARIES OPERATE, (B) CHANGES OR PROPOSED CHANGES AFTER THE SIGNING DATE IN
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES IN THE UNITED STATES ("GAAP") OR
REGULATORY ACCOUNTING REQUIREMENTS, OR AUTHORITATIVE INTERPRETATIONS THEREOF,
(C) CHANGES OR PROPOSED CHANGES AFTER THE SIGNING DATE IN SECURITIES, BANKING
AND OTHER LAWS OF GENERAL APPLICABILITY OR RELATED POLICIES OR INTERPRETATIONS
OF GOVERNMENTAL ENTITIES (IN THE CASE OF EACH OF THESE CLAUSES (A), (B) AND (C),
OTHER THAN CHANGES
4
or occurrences to the extent that such changes or occurrences have or would
reasonably be expected to have a materially disproportionate adverse effect on
the Company and its consolidated subsidiaries taken as a whole relative to
comparable U.S. banking or financial services organizations), or (D) changes in
the market price or trading volume of the Common Stock or any other equity,
equity-related or debt securities of the Company or its consolidated
subsidiaries (it being understood and agreed that the exception set forth in
this clause (D) does not apply to the