Negative Covenants of the Company. Except as specifically permitted by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days of receipt of written request for such consent: (a) make any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan; (b) purchase or invest in any securities, other than United States government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase; (c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Law; (d) make any capital expenditure or enter into any material contract or commitment (except as permitted in subparagraphs (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 or is not in its usual and ordinary course of business and consistent with past practices; (e) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its Subsidiaries, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices. (f) amend the Articles of Incorporation, Bylaws or any other governing document of the Company or any of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its Subsidiaries; (g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a); (h) enter into any new line of business; (i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiaries, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices; (j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law; (k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants; (l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties; (m) file any application to relocate or terminate the operations of any banking office; (n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices; (o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound; (p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto; (q) waive any material right, forgive any material debt or release any material claim; or (r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 2 contracts
Samples: Merger Agreement (Gold Banc Corp Inc), Agreement and Plan of Reorganization (American Bancshares Inc \Fl\)
Negative Covenants of the Company. Except as specifically permitted by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries the Bank to do or agree or to commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than including, without limitation, renewals and extensions of existing loans or and commitments to loan;
(b) purchase or invest in any securities, other than United States government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment commitment, except for regular annual and or merit increases and year-end bonuses awarded, in each case in accordance with past practices or as practices; provided, however, that such year-end bonuses may be required by Lawpaid on a pro rata basis on or prior to the Closing Date;
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 or is engage in any transaction not in its usual and ordinary course of business and consistent with past practices;
(e) except as set forth on Schedule 5.2(e) hereof, declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its Subsidiariesthe Bank, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.Bank;
(f) amend the Articles of Incorporation, Bylaws or any other governing document of the Company or any of its Subsidiaries the Bank or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its Subsidiariesthe Bank;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) except as set forth on Schedule 5.2(h) hereof, enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiariesthe Bank, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, Contract to which the Company or any of its Subsidiaries the Bank is a party or by which the Company or any of its Subsidiaries the Bank or their respective properties is bound, except that the Company shall have the right to (i) prepay the Company Convertible Debentures as contemplated by Section 5.18 hereof and (ii) prepay, in whole or in part, its currently outstanding bank stock loan;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries the Bank without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities customer deposits in the Bank, the purchase FHLB advances, federal funds purchases, letter of federal fundscredit transactions with correspondent banks, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bankborrowings and foreign currency exchanges).
Appears in 1 contract
Negative Covenants of the Company. Except as specifically permitted by this AgreementAgreement and except as may be required in the exercise of the fiduciary duties of the Company's Board of Directors, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) five Business Days (two Business Days in the case of a loan, commitment or series of loans or commitments described in clause (a) below) of receipt of written request for such consent:consent (any request not denied during such period being considered an approval):
(a) make any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States government obligations or other securities backed by in compliance with the full faith and credit of the United States having a maturity of not more than two (2) years from Bank's investment policy as in effect on the date of purchasehereof, or make any material change in its investment portfolio;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular commitment; provided, however, that (i) with respect to employees other than the Significant Stockholders, annual and merit increases (not to exceed in accordance any case four percent (4.0%) per annum) may be paid, and employee bonuses consistent with past practices or as may be required by Law;accrued up to (but not after) the Closing Date, which accrued bonuses shall be paid consistent with past practices in January 2000; (ii) with respect to the Significant Stockholders, employee bonuses consistent with past practices may be accrued up to (but not after) the Closing Date, which accrued bonuses may be paid consistent (X) with past practices at the discretion of the Board of Directors of the Surviving Corporation and (Y) with the terms and conditions of the existing Employment Agreements of the Significant Stockholders; (iii) the Company may continue to accrue consistent with past practices for vacation time for its employees and shall pay to individual employees on or prior to the Closing Date, amounts for accrued and carry-over vacation time in excess of the vacation time the Gold Banc will permit the employee to carry forward and take after the Closing Date; and (iv) subject to SECTION 5.17 hereof, the Company may continue to accrue consistent with past practices and shall pay, on or prior to the Closing Date, mandatory and discretionary employer matching contributions with respect to the Company's 401(k) plan. 423985 v7 33
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2SECTION 5.2 and except commitments required for its performance of its obligations hereunder); involving an obligation or commitment in excess of $25,000 or is engage in any transaction not in its usual and ordinary course of business and consistent with past practices;
(e) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any either of its Subsidiaries, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT the Trust and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.
. (f) amend the Articles Certificate of Incorporation, Bylaws or any other governing document of the Company or any either of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any either of its Subsidiaries;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiaries, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Union Bankshares LTD)
Negative Covenants of the Company. Except as specifically permitted by this AgreementAND EACH SELLER. Prior to the -------------------------------------------------- Closing, from unless the date of this Agreement until the earlier of the Effective Time or the termination of this AgreementPurchaser otherwise agrees in writing, each Seller shall cause the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days of receipt of written request for such consentnot:
(a) make take any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loanaction that would require disclosure under Section 5.7;
(b) purchase make any loans, enter into any transaction with any Insider or invest make or grant any increase in any securitiesemployee's, other than United States government obligations officer's or director's compensation or make or grant any increase in any employee benefit plan, incentive arrangement or other securities backed by the full faith and credit benefit covering any of the United States having a maturity employees of not more than two (2) years from the date of purchaseCompany;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payableestablish or, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices practice, contribute to any pension, retirement, profit sharing or as may be required by Lawstock bonus plan or multiemployer plan covering the employees of the Company;
(d) make any capital expenditure or except as specifically contemplated by this Agreement, enter into any material contract contract, agreement or commitment (except as permitted transaction, other than in subparagraphs (a) the Ordinary Course of Business and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 or is not in its usual and ordinary course of business and consistent at arm's length with past practicesunaffiliated Persons;
(e) declare declare, pay, make or pay otherwise effectuate any dividend dividends, distributions, redemptions, equity repurchases or make any other distribution in respect of any transactions involving the Company's capital stock of or equity securities, other beneficial interest than distributions to the Sellers in the Company or any of its Subsidiaries, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock amounts sufficient to pay federal and state income taxes of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank allocable to the Company to cover Sellers (as a result of the Company's expenses consistent with past practices.election under section 1362 of the Code) for the taxable period ending on the Closing Date;
(f) amend the Articles sell, transfer, contribute, distribute, or otherwise dispose of Incorporation, Bylaws any securities or any other governing document assets of the Company or to any of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its SubsidiariesPerson;
(g) acquire or purchase incur any assets of or make any investment in any financial institution indebtedness for borrowed money other than indebtedness necessary to finance the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a)Company's working capital needs;
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating withdo any of the foregoing, or by purchasing a substantial equity interest in negotiate or a substantial portion have any discussions with any Person with respect to any of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiariesforegoing, other than in connection with foreclosures, settlements in lieu the Ordinary Course of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank)Business.
Appears in 1 contract
Samples: Stock Purchase Agreement (National Equipment Services Inc)
Negative Covenants of the Company. Except as specifically permitted by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to commit to do, or permit either of its Subsidiaries Bank to do or agree or to commit to do, any of the following without the prior written consent of Gold BancGold, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days 3 business days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related entities or persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related entities or persons) in an amount greater than $500,000.00 50,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States U.S. government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or plan, and will not grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such directordirectors, officer, trustee, employee officers or agent employees of Company or Bank under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Lawpractices;
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 5,000 or is engage in any transaction not in its their usual and ordinary course of business and consistent with past practices;
(e) except as set forth in Section 7.6 hereinafter, declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its SubsidiariesBank, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeemredeem (except as set forth in Section 5.1 above), purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.Bank;
(f) amend the Articles of Incorporation, Bylaws Incorporation or any other governing document By-Laws of each of the Company or any of its Subsidiaries Bank or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its SubsidiariesBank;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, thereof or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its SubsidiariesCompany, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision provisions of this Agreement except, in every case, as may be required by applicable Lawlaw;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP generally accepted accounting principles ("GAAP") or regulatory accounting principles as concurred with to by the Company's independent accountantsauditors;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of of, any of its material assets in excess of $5,000.00, properties or propertiesother rights of agreements;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contractcontract, other than a loan agreement or any commitment lease for a loangoods, services or office space to which the Company or any of its Subsidiaries Bank is a party or by which the Company or any of its Subsidiaries Bank or their respective properties is bound;; or
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, director or officer or trustee of the Company or any of its Subsidiaries Bank without giving Gold Banc two three days' notice in advance of the Company's or Bank's approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Gold Banc Corp Inc)
Negative Covenants of the Company. Except as specifically permitted by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to commit to do, or permit either of its Subsidiaries Bank to do or agree or to commit to do, any of the following without the prior written consent of Gold BancGold, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days 3 business days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related entities or persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related entities or persons) in an amount greater than $500,000.00 100,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States U.S. government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such directordirectors, officer, trustee, employee officers or agent employees of Company or Bank under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Lawpractices;
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 5,000 or is engage in any transaction not in its their usual and ordinary course of business and consistent with past practices;
(e) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its SubsidiariesBank, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either Bank; provided, however, that (i) each of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank and the Company may declare and pay quarterly cash dividends, in an amount equal to $1.00 per share, consistent with past practices (with such dividends payable during the first month following the end of each calendar quarter between the date hereof and the Closing Date such that the dividends referenced in this clause (i) are payable in the month of July for the quarter ending June 30, 1998, and in the month of October for the quarter ending September 30, 1998; provided, however, that if the Closing Date occurs on or before September 30, 1998, then the Company and the Bank, on or before the Closing Date, may declare and pay a dividend equal to $1.00 per share reduced by the amount of any cash dividends [on a per share basis] to be received by the shareholders of the Company on shares of Gold Common Stock which they will receive pursuant hereto if the Closing Date has occurred prior to the record date of a dividend declared by Gold during the quarter ending September 30, 1998), (ii) if the transactions contemplated hereby are not consummated in time to permit the shareholders of the Company to cover Company's receive any cash dividends declared and payable on the Gold Common Stock after September 30, 1998, with respect to the shares of Gold Common Stock which they will receive pursuant hereto (the aggregate dollar amount of such dividends is referred to herein as the "Gold Equivalent Dividend"), then the Bank and the Company may declare and pay a cash dividend in an amount equal to the Gold Equivalent Dividend and (iii) the Bank may declare and pay cash dividends in amounts sufficient to pay reasonable out-of-pocket fees and expenses consistent incurred by the Company (including, without limitation, fees and expenses payable pursuant to Section 11.1 hereof) in connection with past practicesthe consummation of the transactions contemplated hereby (the amounts referred to in (i), (ii) and (iii) herein are collectively referred to herein as "Permitted Dividends").
(f) amend the Articles of Incorporation, Bylaws Incorporation or any other governing document By-Laws of either of the Company or any of its Subsidiaries Bank or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its Subsidiaries;
Bank; (g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its SubsidiariesBank, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision provisions of this Agreement except, in every case, as may be required by applicable Lawlaw;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP generally accepted accounting principles ("GAAP") or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contractcontract, other than a loan agreement or any commitment lease for a loangoods, services or office space to which the Company or any of its Subsidiaries Bank is a party or by which the Company or any of its Subsidiaries Bank or their respective properties is bound;; or
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, director or officer or trustee of the Company or any of its Subsidiaries Bank without giving Gold Banc two three days' notice in advance of the Company's or Bank's approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Gold Banc Corp Inc)
Negative Covenants of the Company. Except Prior to the Closing, except as specifically permitted set forth on Schedule 3.9, as the Purchaser otherwise agrees in writing or as expressly contemplated by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days of receipt of written request for except if such consent:
(a) make any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Law;
(d) make any capital expenditure or enter into any material contract or commitment (except as permitted in subparagraphs (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 or action is not in its usual and ordinary course of business and consistent with past practices;
(e) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its Subsidiaries, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.
(f) amend the Articles of Incorporation, Bylaws or any other governing document of the Company or any of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its Subsidiaries;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein undertaken in the ordinary course of business, but subject to the Company shall not and the Company shall not permit any of its Subsidiaries to:
(a) take any action that would require disclosure under Section 5.2(a)4.16;
(hb) make any loans, enter into any new line transaction with any officer, director, shareholders or Affiliate (as defined in Section 4.21) of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or make or grant any of its Subsidiaries, increase in any employee’s or officer’s compensation (other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practicespast practice) or any bonus or incentive compensation or make or grant any increase in benefits provided under any employee benefit plan, policy or program, incentive arrangement or other benefit covering any of the employees of the Company, or adopt, enter into or become bound by any benefit plan, employment-related contract or collective bargaining agreement with respect to the Business or any of the employees, or amend, modify or terminate (partially or completely) any such benefit plan, employment-related contract or collective bargaining agreement, except to the extent required by applicable law and, in the event compliance with legal requirements presents options, only to the extent that the option which the Company reasonably believes to be the least costly is chosen;
(jc) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date hereofestablish or, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior past practice, sellcontribute to any pension, leaseretirement, encumber, assign profit sharing or otherwise dispose stock bonus plan or multiemployer plan covering the employees of any of its material assets or propertiesthe Company;
(md) file enter into any application to relocate contract, agreement or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development projecttransaction, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practicespast practice with third parties who are not Affiliates of the Company;
(oe) make any non-cash distributions, including distributions to pay income taxes, declare, pay, make or otherwise effectuate any non-cash dividends, distributions, redemptions, equity repurchases or other transactions involving the Company’s capital stock or equity securities;
(f) authorize, issue, sell or transfer any equity securities, any securities convertible, exchangeable or exercisable into shares of its capital stock or other equity securities, or warrants, options or other rights to acquire shares of its capital stock or other of its equity securities;
(g) incur, guarantee, or become subject to any liabilities, except liabilities incurred in the ordinary course of businessbusiness consistent with past practices pursuant to existing loan and receivables financing agreements;
(h) other than in the ordinary course of business consistent with past practice, createengage in any activity which would accelerate the collection of its accounts or notes receivable or delay the payment of its accounts payable or delay its capital expenditures;
(i) acquire or dispose of any assets and properties used or held for use in the conduct of the Business, renewother than Inventory in the ordinary course of business consistent with past practice and other acquisitions or dispositions not exceeding in either case $25,000 in the aggregate, amend or terminate creating or give notice of a proposed renewal, amendment or termination of, incurring any material ContractLien, other than a loan Permitted Lien, on any Purchased Assets used or held for use in the conduct of the Business (for purposes hereof, “Permitted Lien” means (i) any commitment Lien for Taxes not yet due or delinquent or being contested in good faith by appropriate proceedings for which adequate reserves have been established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of business by operation of law with respect to a loanliability that is not yet due or delinquent, or (iii) any minor imperfection of title or similar Lien which individually or in the aggregate with other such Liens does not materially impair the value of the property subject to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is boundsuch Lien);
(pj) make enter into, amend, modify, terminate (partially or completely), grant any new loan waiver under or new extension give any consent with respect to any material Contract or any material License; provided, that following notice to the Purchaser, the Company may agree to modify or grant a waiver with respect to any such agreement where such modification or waiver is reasonably necessary to comply with the provisions of creditSection 3.8(a)(i);
(k) violate, breach or default under in any material respect, or commit take or fail to make take any such loan action that (with or extension without notice or lapse of credittime or both) would constitute a material violation or breach of, to or default under, any directorterm or provision of any Contract or any License;
(l) incur, officer purchase, cancel, prepay or trustee otherwise provide for a complete or partial discharge in advance of a scheduled payment date with respect to, or waive any right of the Company under, any liability of or any owing to the Company in connection with the Business, other than in the ordinary course of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating theretobusiness consistent with past practice;
(qm) waive engage in any material righttransaction with respect to the Business with any officer, forgive any material debt director or release any material claimAffiliate of the Company, either outside the ordinary course of business consistent with past practice or other than on an arm’s-length basis;
(n) make capital expenditures or commitments for additions to property, plant or equipment constituting capital assets on behalf of the Business in an aggregate amount exceeding $25,000; or
(ro) incur enter into any agreement to do or guaranty engage in any debt (other than instruments and commitments evidencing deposit liabilities in of the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank)foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Steinway Musical Instruments Inc)
Negative Covenants of the Company. Except as specifically permitted by this AgreementAgreement and except as may be required in the exercise of the fiduciary duties of the Company's Board of Directors, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 500,000 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States government obligations or other securities backed by in compliance with the full faith and credit investment policy of the United States having a maturity of not more than two (2) years from Hennessey Bank as in effect on the date of purchasehxxxxx, xx make any material change in its investment portfolio;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices practices, any written employment agreement of the Company existing as of the date hereof or any written employment agreement which will be entered into as a result of the Company's acquisition of American Heritage, any mandatory or discretionary employer matching contributions to any Company Plans existing as of the date hereof, or any payment pursuant to any bonus plan or bonus agreement existing as of the date hereof and which bonus payments are being accrued by the Company, or as may be required by Law;
(d) make any capital expenditure or enter into any material contract or commitment (except as permitted in subparagraphs (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 or is engage in any transaction not in its usual and ordinary course of business and consistent with past practices;
(e) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company, other than any dividends paid by the Subsidiaries to the Company for the purpose of satisfying its obligations under the Union Bank Loan and to enable the Company to pay its other expenses consistent with past practices; or any of its Subsidiaries, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.
(f) amend the Articles Certificate of Incorporation, Bylaws or any other governing document of the Company or any of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its Subsidiaries, except as may be required by the Company's acquisition of American Heritage;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiaries, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, Contract to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claimclaim which, with respect to any individual matter, exceeds $50,000 (all such matters in the aggregate not to exceed $150,000); or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in Hennessey Bank or Elkhart Bank (and after xxx xxxxisition, the El Reno Bank), the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan BankBank or fully secured repurchase agreements).
Appears in 1 contract
Negative Covenants of the Company. Except as specifically permitted expressly contemplated by this AgreementAgreement or otherwise consented to in writing by Acquiror, from the date of this Agreement hereof until the earlier of the Effective Time or the termination of this AgreementClosing Date, the Company covenants shall not (and agrees that it will shall cause LLC not to) do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days of receipt of written request for such consentfollowing:
(a) make any single loan (or series of loans to the same or related personsi) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable to or to become payable to any of its directors, officers or employees, except for increases in salary, wages or bonuses payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase payable in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Law;
(d) make any capital expenditure or enter into any material contract or commitment (except as permitted in subparagraphs (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 or is not in its usual and ordinary course of business and consistent with past practicespractice; (ii) grant any severance or termination pay to, or enter into or modify any employment or severance agreement with, any of its directors, officers or employees; or (iii) adopt or amend any employee benefit plan or arrangement, except as may be required by applicable Law;
(eb) declare declare, set aside or pay any dividend on, or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or of, any of its Subsidiariescapital stock except normal distributions, if required, to enable the Stockholders to pay state and federal income taxes on the Company's taxable income as set forth in Schedule 7.2(b);
(c) (i) redeem, repurchase or otherwise reacquire any share of its capital stock or any securities or obligations convertible into or exchangeable for any share of its capital stock, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or any such securities or obligations; (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its capital stock or issue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock orstock;
(d) (i) issue, directly deliver, award, grant or indirectlysell, redeemor authorize or propose the issuance, purchase delivery, award, grant or otherwise acquire sale (including the grant of any share Encumbrances) of, any shares of the capital stock of the Company or either any class of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.
(f) amend the Articles of Incorporation, Bylaws or any other governing document of the Company or any of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (including shares held in treasury) or other equity securities, any securities or obligations directly or indirectly convertible into or exercisable or exchangeable for any such shares or securities, or any change rights, warrants or options directly or indirectly to acquire any such shares or securities; or (ii) amend or otherwise modify the terms of any such securities, obligations, rights, warrants or options in a manner inconsistent with the par value provisions of this Agreement or the effect of which shall be to make such terms more favorable to the holders thereof) of the Company or any of its Subsidiaries;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(ie) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial an equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, which would be material, individually or assets of any other person (other than the purchase of inventory in the aggregateordinary course of business and consistent with past practice), or make or commit to the Company or make any of its Subsidiaries, capital expenditures other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring capital expenditures in the ordinary course of business consistent with prudent banking practicespast practice and in amounts which are set forth and described in the Company's 1998 Capital Budget, a true and complete copy of which has been provided to Acquiror and other than expenditures in connection with the consummation of the Merger;
(f) sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, or agree to sell, lease, exchange, mortgage, pledge, transfer or otherwise dispose of, any of its assets except for dispositions in the ordinary course of business and consistent with past practice;
(g) propose or adopt any amendments to its articles of incorporation and bylaws;
(i) change any of its methods of accounting in effect at January 1, 1998, or (ii) except with respect to state and federal excise taxes that may be or become due and payable, make or rescind any express or deemed election relating to taxes, settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to taxes, except, in the case of clause (i) or clause (ii), as may be required by law or generally accepted accounting principles, consistently applied;
(i) prepay, before the scheduled maturity thereof, any of its long-term debt, or incur any obligation for borrowed money, whether or not evidenced by a note, bond, debenture or similar instrument, other than trade payables incurred in the ordinary course of business consistent with past practices and payables in connection with consummation of the Merger;
(j) knowingly enter into or modify in any material respect any Material Contract which, if in effect as of the date hereof, would have been required to be disclosed on Schedule 3.11;
(k) take any action that is intended would or may could reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII X not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants;; or
(l) other than activities agree in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign writing or otherwise dispose of to do any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).foregoing. ARTICLE VIII
Appears in 1 contract
Negative Covenants of the Company. Except as specifically permitted by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to commit to do, or permit either of its Subsidiaries Bank to do or agree or to commit to do, any of the following without the prior written consent of Gold BancGold, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days 3 business days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related entities or persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related entities or persons) in an amount greater than $500,000.00 250,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States U.S. government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or plan, and will not grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such directordirectors, officerofficers or employees of Company, trustee, employee Bank or agent Investment under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Lawpractices;
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 5,000 or is engage in any transaction not in its their usual and ordinary course of business and consistent with past practices;
(e) declare or pay any dividend or make any other distribution in respect of any capital stock of Company, Bank or other beneficial interest in the Company or any of its SubsidiariesInvestment, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company Company, Bank or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.Investment;
(f) amend the Articles of Incorporation, Bylaws Incorporation or any other governing document By-Laws of each of the Company Company, Bank or any of its Subsidiaries Investment or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company Company, Bank or any of its SubsidiariesInvestment;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, thereof or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its SubsidiariesCompany, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision provisions of this Agreement except, in every case, as may be required by applicable Lawlaw;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP generally accepted accounting principles ("GAAP") or regulatory accounting principles as concurred with to by the Company's independent accountantsauditors;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of of, any of its material assets in excess of $5,000.00, properties or propertiesother rights of agreements;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contractcontract, other than a loan agreement or any commitment lease for a loangoods, services or office space to which the Company Company, Bank or any of its Subsidiaries Investment is a party or by which the Company Company, Bank or any of its Subsidiaries Investment or their respective properties is bound;; or
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, director or officer or trustee of the Company Company, Bank or any of its Subsidiaries Investment without giving Gold Banc two three days' notice in advance of the Company's, Bank's or Investment's approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Negative Covenants of the Company. Except as specifically permitted --------------------------------- by this AgreementAgreement or as disclosed on the Company Disclosure Schedule, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to commit to do, or permit either of its Subsidiaries Bank to do or agree or to commit to do, any of the following without the prior written consent of Gold BancGold, which consent shall not be unreasonably withheld and which consent will be given or denied within two three (23) Business Days business days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related entities or persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related entities or persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States U.S. government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such directordirectors, officer, trustee, employee officers or agent employees of Company or Bank under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Lawpractices;
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 15,000 or is engage in any transaction not in its their usual and ordinary course of business and consistent with past practices;
(e) except as set forth in Section 7.6 hereinafter, declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its SubsidiariesBank, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.Bank;
(f) amend the Articles of Incorporation, Incorporation or Bylaws or any other governing document of either of the Company or any of its Subsidiaries Bank or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its SubsidiariesBank;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its SubsidiariesBank, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision provisions of this Agreement except, in every case, as may be required by applicable Lawlaw;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP generally accepted accounting principles ("GAAP") or regulatory accounting principles as concurred with by the Company's independent accountantsprinciples;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contractcontract, other than a loan agreement or any commitment lease for a loangoods, services or office space to which the Company or any of its Subsidiaries Bank is a party or by which the Company or any of its Subsidiaries Bank or their respective properties is bound;; or
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, director or officer or trustee of the Company or any of its Subsidiaries Bank without giving Gold Banc two five (5) days' notice in advance of the Company's or Bank's approval of such loan or extension of credit or commitment relating thereto;.
(q) waive any material rightcause, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in allow, on the BankClosing Date, the purchase reserve for loan and lease loss of federal fundsBank to be less than $1,591,847 or the total indebtedness of the Company to exceed $887,500, sales as determined on the basis of certificates the June 30, 1998 financial statements of deposits, borrowings from a Federal Reserve the Bank or advances from a Federal Home Loan Bank)and the Company delivered to Gold.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Gold Banc Corp Inc)
Negative Covenants of the Company. Except as specifically permitted expressly contemplated by this AgreementAgreement or otherwise consented to in writing by Acquiror, from the date of this Agreement hereof until the earlier of the Effective Time or the termination of this AgreementTime, the Company covenants shall not (and agrees that it will not do or agree to do, or permit either of shall cause its Subsidiaries to not to), and the Stockholders shall cause the Company not to, do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days of receipt of written request for such consentfollowing:
(a) make any single loan (or series of loans to the same or related personsi) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable to or to become payable to any of its directors, officers or employees, except for increases in salary, wages or bonuses payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase payable in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Law;
(d) make any capital expenditure or enter into any material contract or commitment (except as permitted in subparagraphs (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 or is not in its usual and ordinary course of business and consistent with past practices;
practice; (eii) declare grant any severance or termination pay to, or enter into or modify any dividend employment or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or severance agreement with, any of its Subsidiariesdirectors, splitofficers or employees; or (iii) adopt or amend any employee benefit plan or arrangement, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.
(f) amend the Articles of Incorporation, Bylaws or any other governing document of the Company or any of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its Subsidiaries;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiaries, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, except as may be required by applicable Law;
(kb) change declare, set aside or pay any dividend on, or make any other distribution in respect of, any of its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountantscapital stock;
(lc) other than activities in the ordinary course of business consistent with prior practice(i) redeem, sell, lease, encumber, assign repurchase or otherwise dispose reacquire any share of its capital stock or any securities or obligations convertible into or exchangeable for any share of its capital stock, or any options, warrants or conversion or other rights to acquire any shares of its capital stock or any such securities or obligations; (ii) effect any reorganization or recapitalization; or (iii) split, combine or reclassify any of its material assets capital stock or propertiesissue or authorize or propose the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock;
(md) file any application to relocate (i) issue, deliver, award, grant or terminate sell, or authorize or propose the operations issuance, delivery, award, grant or sale (including the grant of any banking office;
Encumbrances) of, any shares of any class of its capital stock (nincluding shares held in treasury) make or other equity securities, any equity investment securities or commitment obligations directly or indirectly convertible into or exercisable or exchangeable for any such shares or securities, or any rights, warrants or options directly or indirectly to acquire any such shares or securities; or (ii) amend or otherwise modify the terms of any such securities, obligations, rights, warrants or options in a manner inconsistent with the provisions of this Agreement or the effect of which shall be to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in terms more favorable to the ordinary course of business consistent with prudent banking practicesholders thereof;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Negative Covenants of the Company. Except as specifically permitted by this AgreementAgreement or as disclosed on the Company Disclosure Schedule, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to commit to do, or permit either of its Subsidiaries Bank to do or agree or to commit to do, any of the following without the prior written consent of Gold BancGold, which consent shall not be unreasonably withheld and which consent will be given or denied within two three (23) Business Days business days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related entities or persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related entities or persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States U.S. government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such directordirectors, officer, trustee, employee officers or agent employees of Company or Bank under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Lawpractices;
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 15,000 or is engage in any transaction not in its their usual and ordinary course of business and consistent with past practices;
(e) except as set forth in Section 7.6 hereinafter, declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its SubsidiariesBank, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.Bank;
(f) amend the Articles of Incorporation, Incorporation or Bylaws or any other governing document of either of the Company or any of its Subsidiaries Bank or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its SubsidiariesBank;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its SubsidiariesBank, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision provisions of this Agreement except, in every case, as may be required by applicable Lawlaw;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP generally accepted accounting principles ("GAAP") or regulatory accounting principles as concurred with by the Company's independent accountantsprinciples;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contractcontract, other than a loan agreement or any commitment lease for a loangoods, services or office space to which the Company or any of its Subsidiaries Bank is a party or by which the Company or any of its Subsidiaries Bank or their respective properties is bound;; or
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, director or officer or trustee of the Company or any of its Subsidiaries Bank without giving Gold Banc two five (5) days' notice in advance of the Company's or Bank's approval of such loan or extension of credit or commitment relating thereto;.
(q) waive any material rightcause, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in allow, on the BankClosing Date, the purchase reserve for loan and lease loss of federal fundsBank to be less than $1,591,847 or the total indebtedness of the Company to exceed $887,500, sales as determined on the basis of certificates the June 30, 1998 financial statements of deposits, borrowings from a Federal Reserve the Bank or advances from a Federal Home Loan Bank)and the Company delivered to Gold.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Gold Banc Corp Inc)
Negative Covenants of the Company. Except as specifically permitted by this AgreementAgreement and except as may be required in the exercise of the fiduciary duties of the Company's Board of Directors, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold Banc, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) five Business Days (two Business Days in the case of a loan, commitment or series of loans or commitments described in clause (a) below) of receipt of written request for such consent:consent (any request not denied during such period being considered an approval):
(a) make any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States government obligations or other securities backed by in compliance with the full faith and credit of the United States having a maturity of not more than two (2) years from Bank's investment policy as in effect on the date of purchasehereof, or make any material change in its investment portfolio;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such director, officer, trustee, employee or agent under any pension plan or other contract or commitment except for regular commitment; provided, however, that (i) with respect to employees other than the Significant Stockholders, annual and merit increases (not to exceed in accordance any case four percent (4.0%) per annum) may be paid, and employee bonuses consistent with past practices or as may be required by Law;accrued up to (but not after) the Closing Date, which accrued bonuses shall be paid consistent with past practices in January 2000; (ii) with respect to the Significant Stockholders, employee bonuses consistent with past practices may be accrued up to (but not after) the Closing Date, which accrued bonuses may be paid consistent (X) with past practices at the discretion of the Board of Directors of the Surviving Corporation and (Y) with the terms and conditions of the existing Employment Agreements of the Significant Stockholders; (iii) the Company may continue to accrue consistent with past practices for vacation time for its employees and shall pay to individual employees on or prior to the Closing Date, amounts for accrued and carry-over vacation time in excess of the vacation time the Gold Banc will permit the employee to carry forward and take after the Closing Date; and (iv) subject to Section 5.17 hereof, the Company may continue to accrue consistent with past practices and shall pay, on or prior to the Closing Date, mandatory and discretionary employer matching contributions with respect to the Company's 401(k) plan.
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.25.2 and except commitments required for its performance of its obligations hereunder); involving an obligation or commitment in excess of $25,000 or is engage in any transaction not in its usual and ordinary course of business and consistent with past practices;
(e) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any either of its Subsidiaries, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT the Trust and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.
. (f) amend the Articles Certificate of Incorporation, Bylaws or any other governing document of the Company or any either of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any either of its Subsidiaries;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiaries, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision of this Agreement except, in every case, as may be required by applicable Law;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contract, other than a loan or any commitment for a loan, to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Negative Covenants of the Company. Except as specifically permitted by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to commit to do, or permit either of its Subsidiaries Bank to do or agree or to commit to do, any of the following without the prior written consent of Gold BancGold, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days 3 business days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related entities or persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related entities or persons) in an amount greater than $500,000.00 100,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States U.S. government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(c) amend or adopt any employee benefit plan or grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such directordirectors, officer, trustee, employee officers or agent employees of Company or Bank under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Lawpractices;
(d) make any capital expenditure or enter into any material contract or commitment (except loan commitments as permitted in subparagraphs Subparagraph (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 5,000 or is engage in any transaction not in its their usual and ordinary course of business and consistent with past practices;
(e) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its SubsidiariesBank, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either Bank; provided, however, that (i) each of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank and the Company may declare and pay quarterly cash dividends, in an amount equal to $1.00 per share, consistent with past practices (with such dividends payable during the first month following the end of each calendar quarter between the date hereof and the Closing Date such that the dividends referenced in this clause (i) are payable in the month of July for the quarter ending June 30, 1998, and in the month of October for the quarter ending September 30, 1998; provided, however, that if the Closing Date occurs on or before September 30, 1998, then the Company and the Bank, on or before the Closing Date, may declare and pay a dividend equal to $1.00 per share reduced by the amount of any cash dividends [on a per share basis] to be received by the shareholders of the Company on shares of Gold Common Stock which they will receive pursuant hereto if the Closing Date has occurred prior to the record date of a dividend declared by Gold during the quarter ending September 30, 1998), (ii) if the transactions contemplated hereby are not consummated in time to permit the shareholders of the Company to cover Company's receive any cash dividends declared and payable on the Gold Common Stock after September 30, 1998, with respect to the shares of Gold Common Stock which they will receive pursuant hereto (the aggregate dollar amount of such dividends is referred to herein as the "Gold Equivalent Dividend"), then the Bank and the Company may declare and pay a cash dividend in an amount equal to the Gold Equivalent Dividend and (iii) the Bank may declare and pay cash dividends in amounts sufficient to pay reasonable out-of-pocket fees and expenses consistent incurred by the Company (including, without limitation, fees and expenses payable pursuant to Section 11.1 hereof) in connection with past practicesthe consummation of the transactions contemplated hereby (the amounts referred to in (i), (ii) and (iii) herein are collectively referred to herein as "Permitted Dividends").
(f) amend the Articles of Incorporation, Bylaws Incorporation or any other governing document By-Laws of either of the Company or any of its Subsidiaries Bank or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its SubsidiariesBank;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(h) enter into any new line of business;
(i) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its SubsidiariesBank, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(j) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision provisions of this Agreement except, in every case, as may be required by applicable Lawlaw;
(k) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP generally accepted accounting principles ("GAAP") or regulatory accounting principles as concurred with by the Company's independent accountants;
(l) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of any of its material assets or properties;
(m) file any application to relocate or terminate the operations of any banking office;
(n) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(o) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contractcontract, other than a loan agreement or any commitment lease for a loangoods, services or office space to which the Company or any of its Subsidiaries Bank is a party or by which the Company or any of its Subsidiaries Bank or their respective properties is bound;; or
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, director or officer or trustee of the Company or any of its Subsidiaries Bank without giving Gold Banc two three days' notice in advance of the Company's or Bank's approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Gold Banc Corp Inc)
Negative Covenants of the Company. Except as specifically permitted by this Agreement, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement, the Company covenants and agrees that it will not do or agree to do, or permit either of its Subsidiaries to do or agree or commit to do, any of the following without the prior written consent of Gold BancGold, which consent shall not be unreasonably withheld and which consent will be given or denied within two (2) Business Days 3 business days of receipt of written request for such consent:
(a) make any single loan (or series of loans to the same or related persons) or any commitment (verbal or written) for a loan (or series of commitments to the same or related persons) in an amount greater than $500,000.00 other than renewals of existing loans or commitments to loan;
(b) purchase or invest in any securities, other than United States U.S. government obligations or other securities backed by the full faith and credit of the United States having a maturity of not more than two (2) years from the date of purchase;
(cb) amend or adopt any employee benefit plan or plan, and will not grant any increase in the rates of pay of their employees or any increase in the compensation payable or to become payable, if any, to any director, officer, trustee, employee or agent thereof, or contribute to any pension plan or otherwise increase in any amount the benefits or compensation of any such directordirectors, officer, trustee, employee officers or agent employees of Company under any pension plan or other contract or commitment except for regular annual and merit increases in accordance with past practices or as may be required by Lawpractices;
(dc) make any capital expenditure or enter into any material contract or commitment (except as permitted in subparagraphs (a) and (r) of this Section 5.2); involving an obligation or commitment in excess of $25,000 15,000 or is engage in any transaction not in its their usual and ordinary course of business and consistent with past practices;
(ed) declare or pay any dividend or make any other distribution in respect of any capital stock of or other beneficial interest in the Company or any of its SubsidiariesCompany, split, combine or reclassify any shares of its capital stock or, directly or indirectly, redeem, purchase or otherwise acquire any share of the capital stock of the Company or either of its Subsidiaries, other than regular distributions in accordance with the trust instrument of ABICT and any dividends from the Bank to the Company to cover Company's expenses consistent with past practices.;
(fe) amend the Articles of Incorporation, Bylaws Incorporation or any other governing document By-Laws of each of the Company or any of its Subsidiaries or make any change in the authorized, issued or outstanding capital stock (or any change in the par value thereof) of the Company or any of its SubsidiariesCompany;
(g) acquire or purchase any assets of or make any investment in any financial institution other than the purchase of loans or participations therein in the ordinary course of business, but subject to Section 5.2(a);
(hf) enter into any new line of business;
(ig) acquire or agree to acquire, by merging or consolidating with, or by purchasing a substantial equity interest in or a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, thereof or otherwise acquire any assets, which would be material, individually or in the aggregate, to the Company or any of its Subsidiaries, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practicesCompany;
(jh) knowingly take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied, or in a violation of any provision provisions of this Agreement except, in every case, as may be required by applicable Lawlaw;
(ki) change its methods of accounting in effect on the date hereof, except as required by changes in GAAP generally accepted accounting principles ("GAAP") or regulatory accounting principles as concurred with to by the Company's independent accountantsauditors;
(lj) other than activities in the ordinary course of business consistent with prior practice, sell, lease, encumber, assign or otherwise dispose of of, any of its material assets with a net book value in excess of $15,000.00, properties or propertiesother rights of agreements;
(m) file any application to relocate or terminate the operations of any banking office;
(nk) make any equity investment or commitment to make such an investment in real estate or in any real estate development project, other than in connection with foreclosures, settlements in lieu of foreclosure or troubled loan or debt restructuring in the ordinary course of business consistent with prudent banking practices;
(ol) except in the ordinary course of business, create, renew, amend or terminate or give notice of a proposed renewal, amendment or termination of, any material Contractcontract, other than a loan agreement or any commitment lease for a loangoods, services or office space to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or their respective properties is bound;
(p) make any new loan or new extension of credit, or commit to make any such loan or extension of credit, to any director, officer or trustee of the Company or any of its Subsidiaries without giving Gold Banc two days' notice in advance of the approval of such loan or extension of credit or commitment relating thereto;
(q) waive any material right, forgive any material debt or release any material claim; or
(r) incur or guaranty any debt (other than instruments and commitments evidencing deposit liabilities in the Bank, the purchase of federal funds, sales of certificates of deposits, borrowings from a Federal Reserve Bank or advances from a Federal Home Loan Bank).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Gold Banc Corp Inc)
