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 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
2
"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, (G) CHANGES IN GLOBAL OR
NATIONAL POLITICAL CONDITIONS, INCLUDING THE OUTBREAK OR ESCALATION OF WAR OR
ACTS OF TERRORISM, AND (H) THE PUBLIC DISCLOSURE OF THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(C)
"PREVIOUSLY DISCLOSED" MEANS INFORMATION (1) SET FORTH ON THE DISCLOSURE
SCHEDULE OR (2)
PUBLICLY DISCLOSED BY THE COMPANY IN THE COMPANY SEC REPORTS
FILED