Forbearances of Seller. Except to the extent ---------------------- required by law, regulation or Regulatory Authority, or with the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall not: (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock, other than cash dividends paid to the Shareholder prior to the Effective Time; (b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to employees consistent with past practice, (ii) as required by law or contract and (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such notice; (c) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights; (d) propose or adopt any amendments to its Articles of Incorporation or other charter document or Bylaws; (e) issue, sell, grant, confer or award any of its Equity Securities or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement; (f) purchase, redeem, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; (g) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries or (h) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the Code; (i) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity; (j) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act.
Appears in 1 contract
Forbearances of Seller. Except to the extent ---------------------- required by law, regulation or Regulatory Authority, or with the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02), during During the period from the date of this Agreement to until the Effective Time, Seller shall not:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock, other than cash dividends paid to the Shareholder prior to the Effective Time;
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any earlier of the Seller Employee Plans Closing or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments)the termination of this Agreement in accordance with its terms, except (i) normal individual increases as set forth in compensation to employees consistent with past practice, (ii) as required by law or contract and (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days Section 5.2 of the receipt of such notice;
(c) authorizeDisclosure Schedule, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Articles of Incorporation or other charter document or Bylaws;
(e) issue, sell, grant, confer or award any of its Equity Securities or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement;
(f) purchase, redeem, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(g) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries or
(h) take any action that would (A) materially impede or delay the consummation of the transactions expressly contemplated by this Agreement or as required by Applicable Law or Governmental Entity, Seller shall cause the ability of Buyers or Seller Company and the Company Subsidiaries not to obtain do any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the Code;following, without the prior written consent of Purchaser, which shall not be unreasonably withheld or delayed:
(ia) other than in the ordinary course of business consistent with past practicepractices, (i) incur any indebtedness for borrowed money money, or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business consistent with past practice shall include the creation of deposit liabilities, purchases of Federal funds and FHLB advances, sales of certificates of deposit, issuances of commercial paper and entering into repurchase agreements); or (ii) incur any capital expenditures (other than capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement);
(b) other than with respect to the Excluded Business, (i) adjust, split, combine or reclassify any capital stock, (ii) make, declare or pay any dividend or distribution or make any other distribution on any shares of its capital stock (other than (A) dividends on shares of its outstanding preferred stock made in accordance with the terms of the applicable certificate of designations, or (B) by any Company Subsidiary on a pro rata basis to the equity owners thereof; provided that the Company itself shall not be permitted to make any dividend) or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stock (and Seller agrees that no such dividend shall have been paid by the Company since December 31, 2006 other than dividends on shares of its outstanding preferred stock made in accordance with the terms of the applicable certificate of designations), (iii) grant any stock appreciation rights or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue any additional shares of capital stock or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) other than with respect to the Excluded Business, sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets, including capital stock in any Company Subsidiary and cash, to any individual, corporation or other entity other than a direct or indirect wholly-owned Company Subsidiary, or to any Excluded Business, or cancel, release or assign any indebtedness to any such person or any claims held by any such person (and Seller agrees that no such action with respect to the Excluded Business shall have occurred since December 31, 2006), except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of the Company, (ii) in the ordinary course of business consistent with past practice to Affiliates of the Company on arm’s length terms, (iii) pursuant to contracts or agreements in force at the date of this Agreement that are, if involving properties or assets having a value in excess of $5,000,000 or any capital stock in any Company Subsidiary, set forth in the Disclosure Schedule or (iv) otherwise with respect to properties, assets and indebtedness with an aggregate fair market value not in excess of $10,000,000 other than to Seller or its Affiliates;
(d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entity other than a wholly-owned Company Subsidiary, or (iii) incur, assume or accept any liability of the Excluded Business, other than, in the case of clause (ii), (A) for investments in the ordinary course of business consistent with past practice and (B) investments for cash consideration with an aggregate value not in excess of $10,000,000;
(e) (i) except (A) as required under applicable law or the terms of any existing agreement to which Company is a party as of the date hereof, and (B) for increases in annual base salary at times and in amounts in the ordinary course of business consistent with past practice, which shall not exceed 4% in the aggregate (on an annualized basis), increase in any manner the compensation or benefits of any of the current or former directors, officers or employees of Company or its Subsidiaries (collectively “Employees”), (ii) pay any amounts to Employees not required by any current plan or agreement (other than base salary in the ordinary course of business) to any Employee, (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to any stock option plan or other stock-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Employee (or newly hired employees), (iv) accelerate the vesting of any stock-based compensation or other long-term incentive under any Company Benefit Plans, (v) hire or terminate the employment of any current Employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $350,000 or more, other than terminations for cause, or (vi) except as set forth in Section 6.4(d) of this Agreement, transfer any current Employee to Seller or its Affiliates (other than the Company or its Subsidiaries);
(f) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $5,000,000 individually or $10,000,000 in the aggregate or involving non-monetary relief that is not material, or waive or release any material rights or claims other than in the ordinary course of business consistent with past practice;
(g) change its methods of accounting (or the manner in which it accrues for liabilities) in effect on the Balance Sheet Date, except as required by changes in GAAP;
(h) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim or assessment or surrender any right to claim a refund of Taxes if such action would likely have the effect of increasing in any material respect the liability of the Company or its Subsidiaries for any Taxes other than Covered Taxes unless required by applicable law;
(i) adopt or implement any amendment to its Certificate of Incorporation or any changes to its Bylaws or comparable organizational documents;
(j) agree materially restructure or materially change its investment securities portfolio or its gap position except in writing the ordinary course of business consistent with past practice (and in consultation with Purchaser), through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(k) enter into, amend in any material respect or terminate, or make any payment not then required under, any Material Contract, other than entering into, renewing or terminating any Material Contracts in the ordinary course of business consistent with past practice, other than any Material Contract that contains (A) any non-competition or non-solicitation agreement, or any other agreement or obligation which purports to limit or restrict in any material respect the ability of the Company or its Affiliates (including, after the Closing, Purchaser and its Affiliates) or their businesses to solicit customers or the manner in which, or the localities in which, all or any portion of the business of the Company or its Affiliates (including, after the Closing, Purchaser and its Affiliates) is or may be conducted or (B) any material exclusive dealing agreement, or any material agreement that grants any right of first refusal or right of first offer or similar right or that limits or purports to limit the ability of the Company or any of its Affiliates (including, after the Closing, Purchaser and its Affiliates) to own, operate, sell, transfer, pledge or otherwise dispose of any material assets or business;
(l) enter into any new line of business that is material to the Company and its Subsidiaries, taken as a whole, or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies that are material to the Company and its Subsidiaries, taken as a whole, except as required by applicable law, regulation or policies imposed by any Governmental Entity;
(m) take any action that is intended or would be reasonably likely to result in any of the conditions set forth in Article VII not being satisfied, except, in every case, as may be required by applicable law;
(i) materially modify, amend or terminate, or waive any rights under, any Affiliate Arrangement, or (ii) enter into any new Affiliate Arrangement or any transaction with Seller or any Affiliate of Seller except in the ordinary course of business consistent with past practice and on arm’s length terms; or
(o) agree to, or make any commitment to, take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of prohibited by this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other actSection 5.2.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Bank of America Corp /De/)
Forbearances of Seller. Except Without limiting the covenants set forth in Section 6.01 hereof, from the date hereof until the Closing Date, except (i) as contemplated by this Agreement, (ii) as set forth in Section 6.02 of the Seller Disclosure Schedules, (iii) as required by Law, or (iv) to the extent ---------------------- required by law, regulation or Regulatory Authority, or with the Purchaser provides prior written consent to do otherwise, which consent shall not be unreasonably withheld or delayed, each of Buyers (unless otherwise specifically noted in this Section 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall Sellers will not:
(a) declareenter into any Contract that will be an Assumed Contract that is not terminable within sixty (60) days and involving payments or obligations by Sellers in excess of $250,000 individually;
(i) amend in any material respect or terminate any Assumed Contract identified as a Tier 1 or Tier 2 Contract on Schedule 1.01(b), set aside or pay waive or release any dividends material rights or other distributionsclaims thereunder, directly provided, however, that the expiration of any such Contract by its terms prior to Closing shall be deemed not to be a termination of such Contract under this clause, or indirectly, in respect of its capital stock, other than cash dividends paid to the Shareholder (ii) enter into any Assumed Contract that would have been identified as a Tier 1 or Tier 2 Contract had it been entered into prior to the Effective Time;
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to employees consistent with past practice, (ii) as required by law or contract and (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such noticedate hereof;
(c) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Articles of Incorporation or other charter document or Bylaws;
(e) issue, sell, grant, confer grant or award any change in any item of its Equity Securities recurring or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement;
(f) purchase, redeem, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(g) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries or
(h) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyers or Seller to obtain any approval periodic cash compensation of any Regulatory Authority required Master Servicing Employee except for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the Code;
(i) other than increases in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or assumeexcept as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, guarantee, endorse or otherwise as an accommodation become responsible or liable for a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any other individualobligation to indemnify any Purchaser Indemnified Party, corporation whether pursuant to Section 10.02 or otherwise, for such failure or any consequence thereof;
(d) enter into, materially modify or cause the termination of any employment agreement, pension, retirement, stock option, stock purchase, stock appreciation right, stock grant, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other entityemployee benefit, incentive, welfare, employment, severance, retention, change in control or similar Contract, plan, policy, program or arrangement, or any trust agreement related thereto, in respect of any Master Servicing Employee; or make any discretionary contributions to any defined contribution or defined benefit plan for the benefit of any Master Servicing Employee other than discretionary contributions in the ordinary course of business consistent with past practice, except as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any obligation to indemnify any Purchaser Indemnified Party, whether pursuant to Section 10.02 or otherwise, for such failure or any consequence thereof;
(e) take any action that would give rise to a right of payment to any Master Servicing Employee under any employment agreement (other than in connection with the hiring or promotion of an individual to replace a Master Servicing Employee, on terms substantially consistent with the terms of the employment agreement with the Master Servicing Employee being replaced), or that would accelerate a right to payment to any Master Servicing Employee under any employee compensation or benefit plan, except as required by applicable Law; to the extent that Purchaser refuses to consent to such an act, a Seller’s failure to take such action shall not result in a failure to satisfy a condition to the obligations of the Purchaser under this agreement, whether pursuant to Section 8.02 or otherwise, and no Seller shall have any obligation to indemnify any Purchaser Indemnified Party, whether pursuant to Section 10.02 or otherwise, for such failure or any consequence thereof;
(f) sell, transfer, assign, lease, license, cancel, abandon, mortgage, surrender, subject to any Lien (other than a Permitted Lien) or otherwise dispose of or encumber any of the Purchased Assets in one transaction or a series of related transactions having a value, individually or in the aggregate, in excess of $250,000; provided, however, that Sellers shall not be entitled to sell, transfer, assign, lease, license, cancel, abandon, mortgage, surrender, subject to any Lien (other than a Permitted Lien) or otherwise dispose of or encumber (i) the Servicing Rights, Servicing Rights Agreements, Servicing Agreements, Subservicing Rights, Subservicing Rights Agreements, Servicing Compensation, Late Fees, Ancillary Income, Servicer Advance Receivables and Deferred Servicing Fees, (ii) any Purchased Assets related to the Master Servicing Business or (iii) any personal property located at the Indianapolis Leased Real Property;
(g) create, incur, assume or guarantee any Indebtedness that will constitute an Assumed Liability as of the Closing Date or subject any Purchased Asset to any Lien that will not be released as of the Closing Date;
(h) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any optional early adoption date) or any Bank Regulator responsible for regulating any Seller; provided, that if any such changes are required, the Sellers shall promptly provide written notice to Purchaser with respect thereto;
(i) waive or forgive any claim or right of a Seller relating to the Purchased Assets in one transaction or a series of related transactions having a value in excess of $500,000;
(j) agree with respect to the Purchased Assets, make or change any election in writing respect of Taxes, adopt or otherwise to take change any accounting method in respect of the foregoing actions Taxes or engage in any activityotherwise, enter into any transaction closing agreement, settle any claim or intentionally take assessment in respect of Taxes, or omit consent to take any other act which would make any extension or waiver of the representations and warranties limitation period applicable to any claim or assessment in Article II respect of this Agreement untrue Taxes, except as required by Law or incorrect GAAP;
(k) purchase new mortgage servicing rights or sell mortgage servicing rights relating to Serviced Mortgage Loans, except pursuant to contractual commitments (including co-issue commitments/agreements) that are set forth in Section 6.02(k) of the Seller Disclosure Schedules;
(l) acquire assets that are Purchased Assets having a value individually or in the aggregate in excess of $500,000;
(m) amend in any material respect if made anew after engaging or terminate any Servicing Agreement, Servicing Rights Agreement, Subservicing Agreement or Master Servicing Agreement; except as necessary to comply with the Applicable Servicing Requirements, provided, however, that the expiration of any such Contract by its terms prior to Closing shall be deemed not to be a termination of such Contract under this clause;
(n) change its servicing practices in any material respect, except as required by Applicable Servicing Requirements; provided, that, prior to making any such activitychanges pursuant to clause (b) of the definition of Applicable Servicing Requirements, entering into such transactionthe Sellers shall in good faith consult with Purchaser with respect thereto;
(o) make any capital expenditure other than expenditures necessary to maintain existing Purchased Assets in good repair;
(p) settle any Action with any Person (other than a Governmental Entity) pursuant to terms which, individually, could reasonably be expected to result in a Loss Sharing Claim in excess of $500,000; or taking or omitting such other act(q) agree to do any of the foregoing.
Appears in 1 contract
Samples: Residential Servicing Asset Purchase Agreement (Nationstar Mortgage LLC)
Forbearances of Seller. Except as set forth in ---------------------- Schedule 4.02 and except to the extent ---------------------- required by law, ------------- regulation or Regulatory Authority, or with the prior written consent of Buyers Buyers, (unless otherwise specifically noted in this Section 4.02), ) during the period from the date of this Agreement to the Effective Time, Seller shall notnot and shall not permit any of the Seller Subsidiaries to:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock, stock (other than dividends from any of the Seller Subsidiaries to Seller or to another of the Seller Subsidiaries), except that Seller may declare and pay regular quarterly cash dividends paid of not more than $.04 per share on the Seller Common Stock, provided that Seller -------- shall not declare or pay its regular quarterly dividend for any quarter in which Seller shareholders will be entitled to receive a regular quarterly dividend on the Shareholder prior shares of Mercantile Common Stock to be issued in the Effective TimeMerger;
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to employees consistent with past practice, (ii) as required by law or contract or plan and (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such notice;
(c) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Articles articles of Incorporation incorporation, association or other charter document or Bylawsbylaws;
(e) issue, sell, grant, confer or award any of its Equity Securities or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement;
(f) purchase, redeem, retire, repurchase repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(gi) without first consulting with Mercantile, enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount in excess of $200,000 with respect to commercial transactions (including commercial construction transactions), $300,000 with respect to residential transactions, or in any amount which, when aggregated with any and all loans or credit commitments of Seller and the Seller Subsidiaries to such person or entity, would be in excess of $350,000; (ii) without first obtaining the written consent of Mercantile, Lend to any person or entity in an amount in excess of $500,000 or in any amount which, when aggregated with any and all loans or credit commitments of Seller and the Seller Subsidiaries to such person or entity, would be in excess of $750,000; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof, provided that in the case of clauses (i) and (iii) -------- Seller or any of the Seller Subsidiaries may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyers or their designated representative a notice of its intention to make such loan and such information as Buyers or their designated representative may reasonably require in respect thereof and (B) Buyers or their designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyers or their designated representative of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any of the Seller Subsidiaries (except those denoted "pass" thereon), in an amount in excess of $100,000; provided, -------- however, that nothing in this paragraph shall prohibit ------- Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding clauses (i) and (ii) of this Section 4.02(g), Seller shall be authorized without first consulting with Buyers or obtaining Buyers' prior written consent, to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases shall not be in excess of the lesser of five percent (5%) of such Pre-Existing Facilities or $25,000;
(h) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries oror proposals with any third party (other than Buyers) relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiaries or the acquisition of Equity Securities of Seller or any of the Seller Subsidiaries or the merger of Seller or any of the Seller Subsidiaries with any person (other than Buyers) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or (ii) provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyers orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction;
(hi) knowingly take or omit to take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the Code;
(ij) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entityentity in excess of $25,000 in the aggregate;
(jk) materially restructure or change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or, without first consulting with Mercantile, execute individual investment transactions of greater than $500,000 for U.S. Treasury Securities and $250,000 for all other investment instruments;
(l) agree in writing or otherwise to take any of the foregoing actions or intentionally engage in any activity, enter into any transaction or intentionally knowingly take or omit to take any other act action which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act.; or
(m) enter into, increase or renew any loan or credit commitment (including standby letters of credit) to any executive officer or director of Seller or any of the Seller Subsidiaries, any Seller shareholder, or any entity controlled, directly or
Appears in 1 contract
Forbearances of Seller. Except to Without limiting the extent ---------------------- required covenants set forth in Section 5.01 hereof, from the date hereof until the Effective Time, except as expressly contemplated or permitted by lawthis Agreement, regulation or Regulatory Authority, or with without the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02)Purchaser, during the period from the date of this Agreement to the Effective Timewhich consent shall not be unreasonably withheld, Seller shall will not, and it will cause each of the Seller Subsidiaries not to:
(a) change or waive any provision of its certificate of incorporation, charter or bylaws or any similar governing documents of any Seller Subsidiary except as required by law, except as necessary to eliminate Section 8A from the Federal Stock Charter of Seller Bank;
(b) change the number of authorized or issued shares of its capital stock, issue any shares of Seller Common Stock that are held as Treasury Stock as of the date of this Agreement, or issue or grant any Right or agreement of any character relating to its authorized or issued capital stock or any securities convertible into shares of such stock, make any grant or award under the Seller Stock Benefit Plans, or split, combine or reclassify any shares of its capital stock, or declare, set aside or pay any dividends dividend or other distributions, directly or indirectly, distribution in respect of its capital stock, other than or purchase or redeem or otherwise acquire any shares of its capital stock, except that (A) Seller may issue shares of Seller Common Stock upon the valid exercise, in accordance with the information set forth in the Disclosure Letter, of presently outstanding Seller Options issued under the Seller Stock Benefit Plans, (B) Seller may continue to pay its regular quarterly cash dividend of $0.075 per share with payment and record dates consistent with past practice, and (C) any Seller Subsidiary may pay dividends paid to the Shareholder prior to the Effective Timeits parent company (as permitted under applicable law or regulations);
(bc) except as provided in clause (p) below, enter into, amend in any material respect or terminate any contract or agreement (including without limitation any settlement agreement with respect to litigation) involving a payment by Seller or any Seller Subsidiary of $25,000 or more;
(d) make any commitment relating to an application for the opening or closing of any, or open or close any, branch, automated banking or other office facility;
(e) enter into any new line of business or introduce any new products;
(f) grant or agree to pay any bonus, severance or termination payment (including, but not limited to discretionary severance pay) to, or enter into, renew or amend any employmentemployment agreement, severance or similar agreement or arrangement with any director, officer or employeeand/or supplemental executive agreement with, or materially modify increase in any manner the compensation or fringe benefits of, any of the Seller Employee Plans its directors, officers or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments)employees, except (i) normal as may be required by applicable law or pursuant to binding, written commitments existing on the date hereof and set forth in the Disclosure Letter, (ii) the payment of bonuses for the year ending March 31, 2006, to the extent such bonuses have been accrued in accordance with GAAP through March 31, 2006 and provided that such bonuses are consistent, as to amount and persons covered, with past practice, and (iii) Seller Bank may hire at-will, non-officer employees to fill vacancies that may from time to time arise in the ordinary course of business. In addition, Seller may agree to pay employees of Seller or Seller Bank, who are identified by Seller and agreed to by Purchaser, a retention bonus in an individual increases amount, and in compensation an aggregate amount as to employees all retention bonuses, to be agreed to by Purchaser;
(g) enter into or, except as may be required by law, materially modify any pension, retirement, stock option, stock purchase, stock appreciation right, stock grant, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any defined contribution or defined benefit plan not in the ordinary course of business consistent with past practice;
(h) merge or consolidate Seller or any Seller Subsidiary with any other corporation; sell or lease all or any substantial portion of the assets or business of Seller or any Seller Subsidiary; make any acquisition of all or any substantial portion of the business or assets of any other Person other than in connection with foreclosures, settlements in lieu of foreclosure, troubled loan or debt restructuring, or the collection of any loan or credit arrangement between Seller, or any Seller Subsidiary, and any other Person; enter into a purchase and assumption transaction with respect to deposits and liabilities; permit the revocation or surrender by any Seller Subsidiary of its certificate of authority to maintain, or file an application for the relocation of, any existing branch office, or file an application for a certificate of authority to establish a new branch office;
(i) sell or otherwise dispose of the capital stock of Seller or sell or otherwise dispose of any asset of Seller or of any Seller Subsidiary other than in the ordinary course of business consistent with past practice;
(j) incur any indebtedness for borrowed money (or guarantee any indebtedness for borrowed money) or subject any asset of Seller or of any Seller Subsidiary to any lien, pledge, security interest or other encumbrance (other than in connection with deposits, repurchase agreements, bankers acceptances, “treasury tax and loan” accounts established in the ordinary course of business and transactions in “federal funds” and the satisfaction of legal requirements in the exercise of trust powers), except as set forth in the Disclosure Letter or in the ordinary course of business consistent with past practice;
(k) take any action which would result in any of the representations and warranties of Seller set forth in this Agreement becoming untrue as of any date after the date hereof or in any of the conditions set forth in Article VIII hereof not being satisfied, except in each case as may be required by applicable law;
(l) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any optional early adoption date) or any Bank Regulator responsible for regulating Seller or Seller Bank;
(m) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing agreement or indebtedness to which Seller or any Seller Subsidiary is a party, other than in the ordinary course of business, consistent with past practice;
(n) make any investment in any debt security, including mortgage-backed and mortgage related securities, other than U.S. government and U.S. government agency securities with final maturities not greater than five years, that are purchased in the ordinary course of business consistent with past practice, (ii) as required by law or contract and (iii) such increases in either case, with a purchase price no greater than 101.5% of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such noticepar value;
(co) authorizeother than investments for Seller’s portfolio made in accordance with Section 5.02(m), recommendmake any investment either by purchase of stock or securities, propose or announce an intention contributions to authorizecapital, recommend or proposeproperty transfers, or purchase of any property or assets of any other individual, corporation or other entity other than the purchase of FHLB common stock necessary to maintain Seller’s membership status with the FHLB of New York and other than pursuant to existing commitments set forth in the Disclosure Letter;
(p) except pursuant to commitments existing at the date hereof which are set forth in the Disclosure Letter, make, renegotiate, renew, increase, extend or purchase any loan, lease (credit equivalent), advance, credit enhancement or other extension of credit, or make any commitment in respect of any of the foregoing, except in conformity with existing lending practices set forth in the Sound Federal Savings Loan Department Procedures Manual, last revised on January 20, 2005, and attached to the Disclosure Letter (the “Lending Policy”) and in amounts not to exceed the limits set forth in such Lending Policy;
(q) enter into an agreement in principle with respect tointo, renew, extend or modify any merger, consolidation or business combination other transaction (other than the Merger), a deposit transaction) with any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rightsAffiliate other than pursuant to Seller’s existing Insider Loan Policy;
(dr) propose or adopt enter into any amendments to its Articles of Incorporation futures contract, option, interest rate caps, interest rate floors, interest rate exchange agreement or other charter document agreement, or Bylawstake any other action for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(es) issueexcept for the execution of this Agreement, selland actions taken or which will be taken in accordance with this Agreement and performance thereunder, grant, confer or award take any action that would give rise to a right of its Equity Securities or effect payment to any stock split or adjust, combine, reclassify or otherwise individual under any employment agreement;
(t) make any change its capitalization as it existed in policies in existence on the date of this AgreementAgreement with regard to: the extension of credit, or the establishment of reserves with respect to the possible loss thereon or the charge off of losses incurred thereon; investments; asset/liability management; or other material banking policies in any material respect except as may be required by changes in applicable law or regulations or by a Bank Regulator or changes in GAAP, as advised by Seller’s independent public accountants;
(fu) purchaseexcept for the execution of this Agreement, redeemand the transactions contemplated therein, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(g) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries or
(h) take any action that would (A) materially impede or delay the consummation give rise to an acceleration of the transactions contemplated by this Agreement or the ability of Buyers or right to payment to any individual under any Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants Compensation and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the CodeBenefit Plan;
(iv) make any capital expenditures in excess of $50,000 individually or $100,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof which are set forth in the Disclosure Letter and other than expenditures necessary to maintain existing assets in good repair;
(w) purchase or otherwise acquire, or sell or otherwise dispose of, any assets or incur any liabilities other than in the ordinary course of business consistent with past practices and policies;
(x) sell any participation interest in any loan (other than sales of loans secured by one- to four-family real estate that are consistent with past practice) unless the Bank has been given the first opportunity and a reasonable time to purchase any loan participation being sold;
(y) undertake or, enter into any lease, contract or other commitment for its account, other than in the normal course of providing credit to customers as part of its banking business, involving a payment by Seller or any Seller Subsidiary of more than $25,000 annually, or containing any financial commitment extending beyond 12 months from the date hereof;
(z) pay, discharge, settle or compromise any claim, action, litigation, arbitration or proceeding; other than any such payment, discharge, settlement or compromise in the ordinary course of business consistent with past practice that involves solely money damages in the amount not in excess of $25,000 individually or $50,000 in the aggregate;
(aa) other than in the ordinary course of business consistent with past practicepractice and pursuant to policies currently in effect (which includes sales of residential loans and mortgages, incur any indebtedness for borrowed money or assumemortgage related and other securities as part of balance sheet management), guaranteesell, endorse transfer, mortgage, encumber or otherwise as an accommodation become responsible or liable for the obligations dispose of any other of its material properties, leases or assets to any individual, corporation or other entityentity other than a direct or indirect wholly owned subsidiary of Seller or cancel, release or assign any indebtedness of any such person, except pursuant to contracts or agreements in force at the date of this Agreement and which are set forth in the Disclosure Letter; provided, however, that no sales may be made with recourse;
(jbb) agree purchase or sell servicing rights (other than loan sales with servicing released) with respect to loans the principal balance of which, either individually or in the aggregate, exceeds $1,000,000;
(cc) fail to maintain all its properties in repair, order and condition no worse than on the date of this Agreement other than as a result of ordinary wear and tear;
(dd) make any investment or commitment to invest in real estate or in any real estate development project, other than real estate acquired in satisfaction of defaulted mortgage loans and investments or commitments approved by the Board of Directors of Seller prior to the date of this Agreement and disclosed in writing to Purchaser;
(ee) elect to the Board of Directors of Seller or otherwise to take Seller Bank any person who is not a member of the foregoing actions Board of Directors of Seller or engage Seller Bank as of the date of this Agreement;
(ff) make or change any election in respect of Taxes, adopt or change any activityaccounting method in respect of Taxes or otherwise, enter into any transaction closing agreement, settle any claim or intentionally take assessment in respect of Taxes, or omit consent to take any other act which would make extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except as required by law, rule, regulation or GAAP; or (gg) agree to do any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other actforegoing.
Appears in 1 contract
Forbearances of Seller. Except to Without limiting the extent ---------------------- required covenants set forth in Section 5.01 hereof, from the date hereof until the Effective Time, except as expressly contemplated or permitted by lawthis Agreement, regulation or Regulatory Authority, or with without the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02)Purchaser, during the period from the date of this Agreement to the Effective Timewhich consent shall not be unreasonably withheld, Seller shall will not:
(a) change or waive any provision of its certificate of incorporation, charter or bylaws or any similar governing documents;
(b) change the number of authorized or issued shares of its capital stock, issue any shares of Seller Common Stock that are held as Treasury Stock as of the date of this Agreement, or issue or grant any right or agreement of any character relating to its authorized or issued capital stock or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or declare, set aside or pay any dividends dividend or other distributions, directly or indirectly, distribution in respect of its capital stock, other than cash dividends paid to the Shareholder prior to the Effective Time;
(b) enter into or amend purchase or redeem or otherwise acquire any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any shares of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments)its capital stock, except (i) normal individual increases in compensation to employees consistent with past practice, (ii) that Seller may pay a preclosing dividend of certain Seller assets as required by law or contract and (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such noticeset forth at Disclosure Letter 5.02;
(c) authorizeenter into, recommend, propose amend in any material respect or announce an intention to authorize, recommend terminate any contract or propose, or enter into an agreement in principle (including without limitation any settlement agreement with respect to, any merger, consolidation to litigation) involving a payment by Seller of $100,000 or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rightsmore;
(d) propose enter into any new line of business or adopt introduce any amendments to its Articles of Incorporation or other charter document or Bylawsnew products;
(e) issuegrant or agree to pay any bonus (other than bonuses in the ordinary course of business, sellconsistent with past practice), grantseverance or termination payment (including, confer but not limited to discretionary severance pay) to, or award enter into, renew or amend any employment agreement, severance agreement and/or supplemental executive agreement with, or increase in any manner the compensation or fringe benefits of, any of its Equity Securities directors, officers or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreementemployees;
(f) enter into or, except as may be required by law, materially modify any pension, retirement, stock option, stock purchase, redeemstock appreciation right, retirestock grant, repurchase profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or exchangeother employee benefit, incentive or welfare contract, plan or arrangement, or otherwise acquire or dispose ofany trust agreement related thereto, directly or indirectly, in respect of any of its Equity Securitiesdirectors, whether pursuant officers or employees; or make any contributions to any defined contribution or defined benefit plan not in the terms ordinary course of such Equity Securities or otherwisebusiness consistent with past practice;
(g) directly merge or indirectly (including through its officers, directors, employees consolidate Seller with any other corporation; sell or other representatives) (i) initiate, solicit lease all or encourage any discussions, inquiries orsubstantial portion of the assets or business of Seller; make any acquisition of all or any substantial portion of the business or assets of any other;
(h) sell or otherwise dispose of the capital stock of Seller or sell or otherwise dispose of any asset of Seller other than in the ordinary course of business consistent with past practice;
(i) incur any indebtedness for borrowed money (or guarantee any indebtedness for borrowed money) or subject any asset of Seller to any lien, pledge, security interest or other encumbrance;
(j) take any action which would result in any of the representations and warranties of Seller set forth in this Agreement becoming untrue as of any date after the date hereof or in any of the conditions set forth in Article VIII hereof not being satisfied, except in each case as may be required by applicable law;
(k) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing agreement or indebtedness to which Seller is a party, other than in the ordinary course of business, consistent with past practice;
(l) except as previously disclosed, enter into, renew, extend or modify any other transaction with any Affiliate;
(m) except for the execution of this Agreement, and actions taken or which will be taken in accordance with this Agreement and performance thereunder, take any action that would (A) materially impede or delay the consummation give rise to a right of the transactions contemplated by this Agreement or the ability of Buyers or Seller payment to obtain any approval of individual under any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the Codeemployment agreement;
(in) make any capital expenditures in excess of $100,000 individually or $250,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof which are set forth in the Disclosure Letter and other than expenditures necessary to maintain existing assets in good repair;
(o) purchase or otherwise acquire, or sell or otherwise dispose of, any assets or incur any liabilities other than in the ordinary course of business consistent with past practices and policies;
(p) undertake or, enter into any lease, contract or other commitment for its account, involving a payment by Seller of more than $25,000 annually, or containing any financial commitment extending beyond 12 months from the date hereof;
(q) pay, discharge, settle or compromise any claim, action, litigation, arbitration or proceeding; other than any such payment, discharge, settlement or compromise in the ordinary course of business consistent with past practice that involves solely money damages in the amount not in excess of $50,000 individually or $100,000 in the aggregate;
(r) other than in the ordinary course of business consistent with past practicepractice and pursuant to policies currently in effect, incur any indebtedness for borrowed money or assumesell, guaranteetransfer, endorse mortgage, encumber or otherwise as an accommodation become responsible or liable for the obligations dispose of any other of its material properties, leases or assets to any individual, corporation or other entityentity or cancel, release or assign any indebtedness of any such person, except pursuant to contracts or agreements in force at the date of this Agreement and which are set forth in the Disclosure Letter; provided, however, that no sales may be made with recourse;
(js) agree fail to maintain all its properties in writing repair, order and condition no worse than on the date of this Agreement other than as a result of ordinary wear and tear;
(t) revoke Seller's election to be taxed as an S Corporation within the meaning of Code Sections 1361 and 1362 or otherwise to take or allow any action that may result in the termination of Seller's status as a validly electing S Corporation within the foregoing actions meaning of Code Sections 1361 and 1362;
(u) make or engage change any election in respect of Taxes, adopt or change any activityaccounting method in respect of Taxes or otherwise, enter into any transaction closing agreement, settle any claim or intentionally take assessment in respect of Taxes, or omit consent to take any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, except as required by law, rule, regulation or GAAP;
(v) make any withdrawals from retained earnings (including the Accumulated Adjustments Account), other act which would make than for the payment of estimated taxes attributed to the income of C.J. Hughes construction company to be reported on the indivxxxxx xxxxxx tax return of Sellers; or
(w) agree to do any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other actforegoing.
Appears in 1 contract
Samples: Merger Agreement (Energy Services Acquisition Corp.)
Forbearances of Seller. Except as otherwise contemplated by this Agreement, and except to the extent ---------------------- required by law, regulation or Regulatory Authority, or with the prior written consent of Buyers Buyer (unless otherwise specifically noted in this Section 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall not:not and shall not permit any of the Seller Subsidiaries to: 21next page
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock, stock (other than cash dividends paid from any of the Seller Subsidiaries to Seller or to another of the Seller Subsidiaries); provided, however, during the first quarter of 2001, Seller may declare and pay a dividend to the Shareholder prior holders of Seller Common Stock in an amount equal to the Effective Timetwenty-four cents ($0.24) per share;
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to employees consistent with past practice, (ii) as required by law or contract and contract, (iii) such increases of which Seller notifies Buyers Buyer in writing and which Buyers do Buyer does not disapprove within 10 days of the receipt of such noticenotice and (iv) pursuant to the provisions of Section 5.09 hereof;
(c) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Articles of Incorporation or other charter document or BylawsBy-Laws;
(ed) issue, sell, grant, confer or award any of its Equity Securities or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement or issue, sell, grant, confer or award any of its Equity Securities, except that the Seller may issue shares of Seller Common Stock upon exercise of the Seller Stock Options outstanding on the date of this Agreement;
(fe) purchase, redeem, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(f) without first consulting with and obtaining the written consent of Buyer, cause or permit Savings Bank to enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount which, when aggregated with any and all loans or credit commitments of Seller and the Seller Subsidiaries to such person or entity, would be equal to or in excess of $100,000 or, solely with respect to one- to four-family mortgage loans, would be equal to or in excess of $250,000; provided, however, that Seller or any of the Seller Subsidiaries may make any such loan or credit commitment in the event (A) Seller or any Seller Subsidiary has delivered to Buyer or its designated representative a notice of its intention to make such loan and such information as Buyer or its designated representative may reasonably require in respect thereof and (B) Buyer or its designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two (2) business days following the delivery to Buyer or its designated representative of the notice of intention and information as aforesaid; provided further, however, that nothing in this paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding this Section 4.02(f), Seller shall be authorized without first consulting with Buyer or obtaining Buyer's prior written consent, to cause or permit Savings Bank to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases shall not be in excess of 10% of such Pre-Existing Facility; 22next page
(g) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit solicit, encourage, authorize, recommend, propose or encourage announce any discussions, inquiries oror proposals with any third party (other than Buyer) or enter into an agreement in principle, relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiaries or the acquisition of Equity Securities of Seller or any of the Seller Subsidiaries or the merger or consolidation of Seller or any of the Seller Subsidiaries with any person (other than Buyer) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or (ii) provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyer orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction;
(h) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyers Buyer or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the CodeAgreement;
(i) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(j) materially restructure or change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(k) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act; or
(l) enter into, increase or renew any loan or credit commitment (including standby letters of credit) to any executive officer or director of Seller or any of the Seller Subsidiaries, any holder of 10% or more of the outstanding shares of Seller Common Stock, or any entity controlled, directly or indirectly, by any of the foregoing or engage in any transaction with any of the foregoing which is of the type or nature sought to be regulated in 12 U.S.C. § 371c and 12 U.S.C. § 371c-1, without first obtaining the prior written consent of Buyer, which consent shall not be unreasonably withheld. For purposes of this subsection (m), "control" shall have the meaning associated with that term under 12 U.S.C. § 371c.
Appears in 1 contract
Forbearances of Seller. Except as set forth in Schedule ---------------------- -------- 4.02 and except to the extent ---------------------- required by law, regulation or Regulatory ---- Authority, or with the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall notnot and shall not permit any of the Seller Subsidiaries to:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock, stock (other than dividends from any of the Seller Subsidiaries to Seller or to another of the Seller Subsidiaries), except that Seller may declare and pay regular quarterly cash dividends paid to the Shareholder prior to the Effective Time;of not more than $0.32 per share on the
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to employees consistent with past practice, (ii) as required by law or contract and (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such notice;
(c) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Articles of Incorporation or other charter document or BylawsBy-Laws;
(e) issue, sell, grant, confer or award any of its Equity Securities or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement;
(f) purchase, redeem, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(g) without first consulting with and obtaining the written consent of Mercantile, cause or permit Horizon Bank to enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount equal to or in excess of $500,000 or in any amount which, when aggregated with any and all loans or credit commitments of Seller and the Seller Subsidiaries to such person or entity, would be equal to or in excess of $500,000; provided, however, that Seller or any of the Seller Subsidiaries may make any such loan or credit commitment in the event (A) Seller or any Seller Subsidiary has delivered to Buyers or their designated representative a notice of its intention to make such loan and
(h) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries oror proposals with any third party (other than Buyers) relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiaries or the acquisition of Equity Securities of Seller or any of the Seller Subsidiaries or the merger of Seller or any of the Seller Subsidiaries with any person (other than Buyers) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), or (ii) provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyers orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction;
(hi) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or Agreement, (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the CodeCode or (C) prevent the Merger from qualifying for pooling-of-interests accounting treatment;
(ij) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(jk) agree in writing materially restructure or otherwise to take any of the foregoing actions change its investment securities portfolio, through purchases, sales or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transactionotherwise, or taking the manner in which the portfolio is classified or omitting such reported, or execute individual investment transactions of greater than $2,000,000 for U.S. Treasury or Federal Agency Securities and $250,000 for all other act.investment instruments;
Appears in 1 contract
Forbearances of Seller. Except as set forth in Schedule 4.02, and except to the extent ---------------------- required by law, regulation or Regulatory Authority, or with the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall notnot and shall not permit any of the Seller Subsidiaries to:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock, stock (other than dividends from any of the Seller Subsidiaries to Seller or to another of the Seller Subsidiaries), except that Seller may declare and pay regular quarterly cash dividends paid of not more than (i) $0.625 per share on the Seller Common Stock and (ii) accrued but unpaid dividends on the Seller Preferred Stock; provided, however, that Seller shall not declare or pay a quarterly dividend for any quarter in which Seller stockholders will be entitled to receive a regular quarterly dividend on the Shareholder prior shares of Mercantile Common Stock to be issued in the Effective TimeMerger;
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to employees consistent with past practice, (ii) as required by law or contract and contract, (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such noticenotice and (iv) pursuant to the provisions of Section 5.10 hereof;
(c) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Certificate or Articles of Incorporation or other charter document or BylawsBy-Laws;
(e) issue, sell, grant, confer or award any of its Equity Securities Securities, except that the Seller may issue up to 800 shares of Seller Common Stock upon exercise of the Seller Stock Options outstanding on the date of this Agreement and up to 41,666 shares of Seller Common Stock upon conversion of the Seller Preferred Stock as provided in Section 6.03(g), or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement;
(f) except as provided in Section 6.03(g), purchase, redeem, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(g) without first consulting with and obtaining the written consent of Mercantile, cause or permit TRIB to enter into, renew or increase any loan or credit commitment (including stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the material provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (collectively, "Lend to") in an amount equal to or in excess of $1,000,000 or in any amount which, when aggregated with any and all loans or credit commitments of Seller and the Seller Subsidiaries to such person or entity, would be equal to or in excess of 1,000,000; provided, however, that Seller or any of the Seller Subsidiaries may make any such loan or credit commitment in the event (A) Seller or any Seller Subsidiary has delivered to Buyers or their designated representative a notice of its intention to make such loan and such information as Buyers or their designated representative may reasonably require in respect thereof and (B) Buyers or their designated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two (2) business days following the delivery to Buyers or their designated representative of the notice of intention and information as aforesaid; provided further, however, that nothing in this paragraph shall prohibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding this Section 4.02(g), Seller shall be authorized without first consulting with Buyers or obtaining Buyers' prior written consent to cause or permit TRIB to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facility"), provided that the aggregate amount of any and all such increases shall not be in excess of the lesser of 10% of such Pre-Existing Facilities or $250,000;
(h) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries oror proposals with any third party (other than Buyers) relating to the disposition of any significant portion of the business or assets of Seller or any of the Seller Subsidiaries (other than in the ordinary course of business) or the acquisition of Equity Securities of Seller or any of the Seller Subsidiaries or the merger of Seller or any of the Seller Subsidiaries with any person (other than Buyers) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), (ii) provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and Seller shall promptly notify Buyers orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction;
(hi) take any action that would (Ai) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the Code, (ii) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement Agreement, or (Biii) prevent or impede the transactions contemplated hereby Merger from qualifying as a reorganization within the meaning of Section 368 of the Codefor pooling-of-interests accounting treatment;
(ij) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(jk) materially restructure or change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or execute individual investment transactions for its own account of greater than $2,000,000 for U.S. Treasury or Federal Agency Securities and $250,000 for all other investment instruments;
(l) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act; or
(m) enter into, increase or renew any loan or credit commitment (including lines of credit) if the principal amount thereof is, or, when aggregated with other loans or credit commitments, would be in excess of $20,000 to any executive officer or director of Seller or any of the Seller Subsidiaries (other than a non-employee director), any holder of 10% or more of the outstanding shares of Seller Common Stock, or any entity controlled, directly or indirectly, by any of the foregoing or engage in any transaction with any of the foregoing which is of the type or nature sought to be regulated in 12 U.S.C. ss. 371c and 12 U.S.C. ss. 371c-1, without first obtaining the prior written consent of Buyers, which consent shall not be unreasonably withheld. For purposes of this subsection (m), "control" shall have the meaning associated with that term under 12 U.S.C. ss. 371c.
Appears in 1 contract
Samples: Merger Agreement (Financial Services Corporation of the Midwest)
Forbearances of Seller. Except to the extent ---------------------- required by law, regulation or Regulatory Authority, or with the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02), during the period from the date of this Agreement to the Effective Time, Seller shall not:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock, other than cash dividends paid to the Shareholder prior to the Effective Time;
(b) enter into or amend any employment, severance or similar agreement or arrangement with any director, officer or employee, or materially modify any of the Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation to employees consistent with past practice, (ii) as required by law or contract and (iii) such increases of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such notice;
(c) authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination (other than the Merger), any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rights;
(d) propose or adopt any amendments to its Articles of Incorporation or other charter document or Bylaws;
(e) issue, sell, grant, confer or award any of its Equity Securities or effect any stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the date of this Agreement;
(f) purchase, redeem, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(g) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries oror proposals with any third party (other than Buyers) relating to the disposition of any
(h) take any action that would (A) materially impede or delay the consummation of the transactions contemplated by this Agreement or the ability of Buyers or Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the Code;
(i) other than in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money or assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(j) agree in writing or otherwise to take any of the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Unified Holdings Inc)
Forbearances of Seller. Except to Without limiting the extent ---------------------- required covenants set forth in Section 5.01 hereof, from the date hereof until the Effective Time, except as expressly contemplated or permitted by lawthis Agreement, regulation or Regulatory Authority, or with without the prior written consent of Buyers (unless otherwise specifically noted in this Section 4.02)Purchaser, during the period from the date of this Agreement to the Effective Timewhich consent shall not be unreasonably withheld, Seller shall will not, and it will cause each of the Seller Subsidiaries not to:
(a) change or waive any provision of its certificate of incorporation, charter or bylaws or any similar governing documents of any Seller Subsidiary except as required by law, except as necessary to eliminate Section 8A from the Federal Stock Charter of Seller Bank;
(b) change the number of authorized or issued shares of its capital stock, issue any shares of Seller Common Stock that are held as Treasury Stock as of the date of this Agreement, or issue or grant any Right or agreement of any character relating to its authorized or issued capital stock or any securities convertible into shares of such stock, make any grant or award under the Seller Stock Benefit Plans, or split, combine or reclassify any shares of its capital stock, or declare, set aside or pay any dividends dividend or other distributions, directly or indirectly, distribution in respect of its capital stock, other than or purchase or redeem or otherwise acquire any shares of its capital stock, except that (A) Seller may issue shares of Seller Common Stock upon the valid exercise, in accordance with the information set forth in the Disclosure Letter, of presently outstanding Seller Options issued under the Seller Stock Benefit Plans, (B) Seller may continue to pay its regular quarterly cash dividend of $0.075 per share with payment and record dates consistent with past practice, and (C) any Seller Subsidiary may pay dividends paid to the Shareholder prior to the Effective Timeits parent company (as permitted under applicable law or regulations);
(bc) except as provided in clause (p) below, enter into, amend in any material respect or terminate any contract or agreement (including without limitation any settlement agreement with respect to litigation) involving a payment by Seller or any Seller Subsidiary of $25,000 or more;
(d) make any commitment relating to an application for the opening or closing of any, or open or close any, branch, automated banking or other office facility;
(e) enter into any new line of business or introduce any new products;
(f) grant or agree to pay any bonus, severance or termination payment (including, but not limited to discretionary severance pay) to, or enter into, renew or amend any employmentemployment agreement, severance or similar agreement or arrangement with any director, officer or employeeand/or supplemental executive agreement with, or materially modify increase in any manner the compensation or fringe benefits of, any of the Seller Employee Plans its directors, officers or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments)employees, except (i) normal as may be required by applicable law or pursuant to binding, written commitments existing on the date hereof and set forth in the Disclosure Letter, (ii) the payment of bonuses for the year ending March 31, 2006, to the extent such bonuses have been accrued in accordance with GAAP through March 31, 2006 and provided that such bonuses are consistent, as to amount and persons covered, with past practice, and (iii) Seller Bank may hire at-will, non-officer employees to fill vacancies that may from time to time arise in the ordinary course of business. In addition, Seller may agree to pay employees of Seller or Seller Bank, who are identified by Seller and agreed to by Purchaser, a retention bonus in an individual increases amount, and in compensation an aggregate amount as to employees all retention bonuses, to be agreed to by Purchaser;
(g) enter into or, except as may be required by law, materially modify any pension, retirement, stock option, stock purchase, stock appreciation right, stock grant, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any defined contribution or defined benefit plan not in the ordinary course of business consistent with past practice;
(h) merge or consolidate Seller or any Seller Subsidiary with any other corporation; sell or lease all or any substantial portion of the assets or business of Seller or any Seller Subsidiary; make any acquisition of all or any substantial portion of the business or assets of any other Person other than in connection with foreclosures, settlements in lieu of foreclosure, troubled loan or debt restructuring, or the collection of any loan or credit arrangement between Seller, or any Seller Subsidiary, and any other Person; enter into a purchase and assumption transaction with respect to deposits and liabilities; permit the revocation or surrender by any Seller Subsidiary of its certificate of authority to maintain, or file an application for the relocation of, any existing branch office, or file an application for a certificate of authority to establish a new branch office;
(i) sell or otherwise dispose of the capital stock of Seller or sell or otherwise dispose of any asset of Seller or of any Seller Subsidiary other than in the ordinary course of business consistent with past practice;
(j) incur any indebtedness for borrowed money (or guarantee any indebtedness for borrowed money) or subject any asset of Seller or of any Seller Subsidiary to any lien, pledge, security interest or other encumbrance (other than in connection with deposits, repurchase agreements, bankers acceptances, "treasury tax and loan" accounts established in the ordinary course of business and transactions in "federal funds" and the satisfaction of legal requirements in the exercise of trust powers), except as set forth in the Disclosure Letter or in the ordinary course of business consistent with past practice;
(k) take any action which would result in any of the representations and warranties of Seller set forth in this Agreement becoming untrue as of any date after the date hereof or in any of the conditions set forth in Article VIII hereof not being satisfied, except in each case as may be required by applicable law;
(l) change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any optional early adoption date) or any Bank Regulator responsible for regulating Seller or Seller Bank;
(m) waive, release, grant or transfer any material rights of value or modify or change in any material respect any existing agreement or indebtedness to which Seller or any Seller Subsidiary is a party, other than in the ordinary course of business, consistent with past practice;
(n) make any investment in any debt security, including mortgage-backed and mortgage related securities, other than U.S. government and U.S. government agency securities with final maturities not greater than five years, that are purchased in the ordinary course of business consistent with past practice, (ii) as required by law or contract and (iii) such increases in either case, with a purchase price no greater than 101.5% of which Seller notifies Buyers in writing and which Buyers do not disapprove within 10 days of the receipt of such noticepar value;
(co) authorizeother than investments for Seller's portfolio made in accordance with Section 5.02(m), recommendmake any investment either by purchase of stock or securities, propose or announce an intention contributions to authorizecapital, recommend or proposeproperty transfers, or purchase of any property or assets of any other individual, corporation or other entity other than the purchase of FHLB common stock necessary to maintain Seller's membership status with the FHLB of New York and other than pursuant to existing commitments set forth in the Disclosure Letter;
(p) except pursuant to commitments existing at the date hereof which are set forth in the Disclosure Letter, make, renegotiate, renew, increase, extend or purchase any loan, lease (credit equivalent), advance, credit enhancement or other extension of credit, or make any commitment in respect of any of the foregoing, except in conformity with existing lending practices set forth in the Sound Federal Savings Loan Department Procedures Manual, last revised on January 20, 2005, and attached to the Disclosure Letter (the "Lending Policy") and in amounts not to exceed the limits set forth in such Lending Policy;
(q) enter into an agreement in principle with respect tointo, renew, extend or modify any merger, consolidation or business combination other transaction (other than the Merger), a deposit transaction) with any acquisition of a material amount of assets or securities, any disposition of a material amount of assets or securities or any release or relinquishment of any material contract rightsAffiliate other than pursuant to Seller's existing Insider Loan Policy;
(dr) propose or adopt enter into any amendments to its Articles of Incorporation futures contract, option, interest rate caps, interest rate floors, interest rate exchange agreement or other charter document agreement, or Bylawstake any other action for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(es) issueexcept for the execution of this Agreement, selland actions taken or which will be taken in accordance with this Agreement and performance thereunder, grant, confer or award take any action that would give rise to a right of its Equity Securities or effect payment to any stock split or adjust, combine, reclassify or otherwise individual under any employment agreement;
(t) make any change its capitalization as it existed in policies in existence on the date of this AgreementAgreement with regard to: the extension of credit, or the establishment of reserves with respect to the possible loss thereon or the charge off of losses incurred thereon; investments; asset/liability management; or other material banking policies in any material respect except as may be required by changes in applicable law or regulations or by a Bank Regulator or changes in GAAP, as advised by Seller's independent public accountants;
(fu) purchaseexcept for the execution of this Agreement, redeemand the transactions contemplated therein, retire, repurchase or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise;
(g) directly or indirectly (including through its officers, directors, employees or other representatives) (i) initiate, solicit or encourage any discussions, inquiries or
(h) take any action that would (A) materially impede or delay the consummation give rise to an acceleration of the transactions contemplated by this Agreement or the ability of Buyers or right to payment to any individual under any Seller to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement or to perform its covenants Compensation and agreements under this Agreement or (B) prevent or impede the transactions contemplated hereby from qualifying as a reorganization within the meaning of Section 368 of the CodeBenefit Plan;
(iv) make any capital expenditures in excess of $50,000 individually or $100,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof which are set forth in the Disclosure Letter and other than expenditures necessary to maintain existing assets in good repair;
(w) purchase or otherwise acquire, or sell or otherwise dispose of, any assets or incur any liabilities other than in the ordinary course of business consistent with past practices and policies;
(x) sell any participation interest in any loan (other than sales of loans secured by one- to four-family real estate that are consistent with past practice) unless the Bank has been given the first opportunity and a reasonable time to purchase any loan participation being sold;
(y) undertake or, enter into any lease, contract or other commitment for its account, other than in the normal course of providing credit to customers as part of its banking business, involving a payment by Seller or any Seller Subsidiary of more than $25,000 annually, or containing any financial commitment extending beyond 12 months from the date hereof;
(z) pay, discharge, settle or compromise any claim, action, litigation, arbitration or proceeding; other than any such payment, discharge, settlement or compromise in the ordinary course of business consistent with past practice that involves solely money damages in the amount not in excess of $25,000 individually or $50,000 in the aggregate;
(aa) other than in the ordinary course of business consistent with past practicepractice and pursuant to policies currently in effect (which includes sales of residential loans and mortgages, incur any indebtedness for borrowed money or assumemortgage related and other securities as part of balance sheet management), guaranteesell, endorse transfer, mortgage, encumber or otherwise as an accommodation become responsible or liable for the obligations dispose of any other of its material properties, leases or assets to any individual, corporation or other entityentity other than a direct or indirect wholly owned subsidiary of Seller or cancel, release or assign any indebtedness of any such person, except pursuant to contracts or agreements in force at the date of this Agreement and which are set forth in the Disclosure Letter; provided, however, that no sales may be made with recourse;
(jbb) agree purchase or sell servicing rights (other than loan sales with servicing released) with respect to loans the principal balance of which, either individually or in writing or otherwise the aggregate, exceeds $1,000,000;
(cc) fail to take any of maintain all its properties in repair, order and condition no worse than on the foregoing actions or engage in any activity, enter into any transaction or intentionally take or omit to take any other act which would make any of the representations and warranties in Article II date of this Agreement untrue other than as a result of ordinary wear and tear;
(dd) make any investment or incorrect commitment to invest in real estate or in any material respect if made anew after engaging real estate development project, other than real estate acquired in such activity, entering into such transaction, satisfaction of defaulted mortgage loans and investments or taking commitments approved by the Board of Directors of Seller prior to the date of this Agreement and disclosed in writing to Purchaser; (ee) elect to the Board of Directors of Seller or omitting such other act.Seller Bank any person who is not a member of the Board of Directors of Seller or Seller Bank as of the date of this Agreement;
Appears in 1 contract
