Operations Pending Closing. The Seller hereby covenants to and agrees with the Buyer that, from the date hereof to the Closing Date or the termination of this Agreement, and subject to the requirement of the regulators that the Seller must control its own operations in accordance with past operating practice, the Seller shall not without the written consent of the Buyer, cause or allow the Bank to: (a) fail to carry on its business in substantially the same manner as now being conducted; (b) declare, pay or make any cash dividend, stock dividend or other distribution with respect to the Bank Shares outside of the ordinary course of business, except for (i) the Capital Dividend in accordance with Section 2.2 and (ii) dividends or distributions paid to Seller in the ordinary course in connection with the issuance of S-corporation tax dividends to Seller’s shareholders; (c) issue or directly or indirectly sell, transfer or otherwise dispose of, or purchase, redeem, retire or otherwise acquire any Equity Securities of the Bank, or agree to commit to do so; (d) subdivide or in any way reclassify any of the Equity Securities of the Bank; (e) grant any option or right to purchase or execute any agreement or otherwise commit to issue any Equity Securities of the Bank; (f) invest or take any actions to inject any additional capital or equity into the Bank other than increases in the Bank’s capital accounts arising due to earnings in the ordinary course of business; (g) sell, transfer, lease, mortgage, pledge or otherwise dispose of or encumber any of the Bank’s assets or cancel any of the Bank’s claims except, in each case, in the ordinary course of business. (h) fail to use its reasonable efforts to preserve the Bank’s business, organization and goodwill and its existing relationships with its respective customers; (i) amend the Bank’s Articles of Incorporation or Bylaws; (j) incur any obligation or liability or enter into any transaction except in the ordinary course of the Bank’s business; (k) fail to take any action necessary and appropriate to maintain in full force and effect the Bank’s corporate existence, rights, licenses and franchises; (l) pay or commit to pay any salary, fee or other compensation at a rate in excess of that prevailing on January 31, 2016; (m) fail to maintain all existing policies of insurance with respect to the Bank in their present form and with their present coverage or comparable substitute policies; WHD/12223603.9 - 14 - (n) enter into any employment, agency or other contract or agreement with respect to the performance of personal services which is not terminable by the Bank without liability, on thirty (30) days or less notice; (o) pay or commit to pay any bonus or other incentive compensation to any of the Bank officers, directors or employees outside of the ordinary course of business or as set forth on Schedule 12.1(o); (p) make or grant any increase any contributions under any Employee Benefit Plan identified in Schedule 4.23 outside of the ordinary course of business, or amend or terminate any such Employee Benefit Plan or adopt any new Employee Benefit Plan, except to the extent required by law; (q) sell any portion or all of the Bank’s investment portfolio except for those investments which mature or are called in the ordinary course and sell any portion or all of the Bank’s loan portfolio outside of the ordinary course of business; (r) make any single capital expenditure or commitment for capital expenditure in excess of $25,000 other than written commitments or obligations in existence as of the date of this Agreement and disclosed on Schedule 12.1(r); (s) commit to make a loan or grant an extension of credit to any borrower (including any renewals of existing loans or additional advances on loans to existing borrowers of the Bank) which does not comply with the Bank’s loan policy and is not consistent with the past lending practices of the Bank; (t) except pursuant to contracts to lend money in effect on the date of this Agreement (whether or not any advancement of funds thereunder is discretionary), make, renew or agree to make or renew, any loan or advance on any existing loan if (i) such loan or advance is unsecured and is in excess of $100,000 to any borrower or related borrowers; (i) such loan or advance is secured and is in excess of $1,000,000 to any borrower or related borrowers and is unsecured; or (iii) such loan is in excess of $100,000 and such loan has been declared in default or classified, by the Bank’s officers or directors, (including the Bank’s watch list) provided, however, that the Bank may make such loan in the event that (i) the Bank has delivered to the Buyer or its designated representative a notice of its intention to make such loan and such information as the Buyer or its designated representative shall require in respect thereof and (ii) the Buyer or its designated representative shall not have objected to such loan by giving written or facsimile notice of such objection within two (2) business days following delivery to the Buyer or its designated representative of the notice of intention and information as aforesaid; (u) make loans to insiders as that term is defined in Section 4.9; (v) repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution; (w) originate any loan which is thereafter participated to another financial institution providing for payment on any basis other than pro rata; (x) make any investments or invest any of the Bank’s assets in any marketable securities except in the ordinary course of business and consistent with prior practices and the Bank’s policies, and in no event with a maturity in excess of 24 months; (y) except in the ordinary course of business, release or agree to release any collateral securing any loan; (z) take any action outside the ordinary course of business which will decrease the Book Value of the Bank between the Determination Date and the Closing Date; or (aa) enter into or amend any other contract, agreement, understanding, arrangement or commitment not already described or addressed in this Section 12.1 that is outside the ordinary course of business and involves an aggregate obligation by the Bank of more than $25,000, other than contracts entered into in respect of deposit agreements. WHD/12223603.9 - 15 -
Appears in 1 contract
Operations Pending Closing. The Seller hereby covenants to and agrees with the Buyer that, from the date hereof to the Closing Date or the termination of this Agreement, and subject to except with the requirement of the regulators that the Seller must control its own operations in accordance with past operating practice, the Seller shall not without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed, the Seller will not cause or allow the Bank to:
(a) fail to carry on its business in substantially the same manner as now being conducted;
(b) declare, pay or make any cash dividend, stock dividend or other distribution with respect to the Bank Shares outside Equity Securities of the ordinary course of business, except for (i) the Capital Dividend in accordance with Section 2.2 and (ii) dividends or distributions paid to Seller in the ordinary course in connection with the issuance of S-corporation tax dividends to Seller’s shareholdersBank;
(c) issue or directly or indirectly sell, transfer or otherwise dispose of, or purchase, redeem, retire or otherwise acquire any Equity Securities of the BankBank or any other Equity Securities, or agree to commit to do so;
(d) subdivide or in any way reclassify any of the Equity Securities of the Bank;
(e) grant any option or right to purchase or execute any agreement or otherwise commit to issue any Equity Securities of the Bank;
(f) invest or take any actions to inject any additional capital or equity into the Bank other than increases in the Bank’s capital accounts arising due to earnings in the ordinary course of business;
(g) sell, transfer, lease, mortgage, pledge or otherwise dispose of or encumber any of the Bank’s assets or cancel any of the Bank’s claims except, in each case, except in the ordinary course of business.;
(hg) fail to use its commercially reasonable efforts to preserve the Bank’s business, organization and goodwill and its existing relationships with its respective customerscustomers and others having business relationships with it;
(ih) amend the Bank’s Articles of Incorporation Association or Bylaws;
(ji) incur any obligation or liability or enter into any transaction except in the ordinary course of the Bank’s business;
(kj) fail to take any action necessary and appropriate to maintain in full force and effect the Bank’s corporate existence, rights, licenses and franchises;
(lk) pay or commit to pay any salary, fee or other compensation at a rate in excess of that prevailing on January 31September 30, 20162008;
(ml) fail to maintain all existing policies of insurance with respect to the Bank in their present form and with their present coverage or comparable substitute policies; WHD/12223603.9 - 14 - ;
(nm) enter into any employment, agency or other contract or agreement with respect to the performance of personal services which is not terminable by the Bank without liability, on thirty (30) days or less notice;
(on) pay or commit to pay any bonus or other incentive compensation or any severance payments to any of the Bank officers, directors or employees outside of the ordinary course of business or as set forth on Schedule 12.1(o)employees;
(p) make or grant any increase any contributions under any Employee Benefit Plan identified in Schedule 4.23 outside of the ordinary course of business, or amend or terminate any such Employee Benefit Plan or adopt any new Employee Benefit Plan, except to the extent required by law;
(qo) sell any portion or all of the Bank’s loan or investment portfolio portfolios except for those investments which mature or are called in the ordinary course and sell of business, or invest any portion or all of the Bank’s loan portfolio outside of assets in any marketable securities, other than U.S. Treasury or U.S. Agency securities except in the ordinary course of business;
(rp) make any single capital expenditure expenditures or commitment for capital expenditure expenditures in the aggregate for the Bank in excess of $25,000 50,000 other than written commitments or obligations in existence as of the date of this Agreement and disclosed on Schedule 12.1(r12.1(p);
(sq) commit to make a loan or grant an extension of credit to any borrower (including any renewals of existing loans or additional advances on loans to existing borrowers of the Bank) which does not comply with the Bank’s loan policy and which is not consistent with the past lending practices of the Bank;
(tr) except pursuant fail to contracts to lend money in effect accrue income and expenses on the date of this Agreement (whether or not any advancement of funds thereunder is discretionary), make, renew or agree to make or renew, any loan or advance on any existing loan if (i) such loan or advance is unsecured and is in excess of $100,000 to any borrower or related borrowers; (i) such loan or advance is secured and is in excess of $1,000,000 to any borrower or related borrowers and is unsecured; or (iii) such loan is in excess of $100,000 and such loan has been declared in default or classified, by the Bank’s officers or directors, (including the Bank’s watch list) provided, however, that the Bank may make such loan books in the event that (i) the Bank has delivered to the Buyer or its designated representative a notice ordinary course of its intention to make such loan business and such information as the Buyer or its designated representative shall require in respect thereof and (ii) the Buyer or its designated representative shall not have objected to such loan by giving written or facsimile notice of such objection within two (2) business days following delivery to the Buyer or its designated representative of the notice of intention and information as aforesaidaccordance with generally accepted accounting principles;
(us) make loans to insiders as that term is defined in Section 4.9;
(v) repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution;
(w) originate any loan which is thereafter participated to another financial institution providing for payment on any basis other than pro rata;
(x) make any investments or invest any of the Bank’s assets in any marketable securities except in the ordinary course of business and consistent with prior practices and the Bank’s policies, and in no event with a maturity in excess of 24 months;
(y) except in the ordinary course of business, release or agree to release any collateral securing any loan;
(zt) take any action outside the ordinary course of business business, which will decrease the Book Value of the Bank Bank’s stockholders’ equity between the Determination Date and the Closing Date; or
(aau) enter into or amend any other contract, agreement, understanding, arrangement or commitment not already described or addressed in this Section 12.1 that is outside the ordinary course of business and involves involving an aggregate obligation by the Bank of more than $25,00050,000, other than contracts entered into in respect of deposit agreements. WHD/12223603.9 - 15 -.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vineyard National Bancorp)
Operations Pending Closing. The Seller Management Shareholders hereby covenants represent, warrant and covenant to and agrees agree with the Buyer that, from the date hereof to the Closing Date or the termination of this Agreement, and subject to the requirement of the regulators that the Seller must control its own operations in accordance with past operating practice, the Seller Management Shareholders shall not without the written consent of the Buyer, cause or allow the Bank Company or any of its Subsidiaries to:
(a) fail 4.1 Fail to carry on its business in substantially the same manner as now being conducted;
(b) declare, 4.2 Fail to pay or make any cash dividend, stock dividend or other distribution with respect to all liabilities in the Bank Shares outside ordinary course of business as due;
4.3 Except in the ordinary course of business, except for (i) the Capital Dividend in accordance with Section 2.2 and (ii) dividends or distributions paid to Seller in the ordinary course in connection with the issuance of S-corporation tax dividends to Seller’s shareholders;
(c) issue or directly or indirectly sell, transfer or otherwise dispose of, or purchase, redeem, retire or otherwise acquire any Equity Securities of the Bank, or agree to commit to do so;
(d) subdivide or in any way reclassify any of the Equity Securities of the Bank;
(e) grant any option or right to purchase or execute any agreement or otherwise commit to issue any Equity Securities of the Bank;
(f) invest or take any actions to inject any additional capital or equity into the Bank other than increases in the Bank’s capital accounts arising due to earnings in the ordinary course of business;
(g) sell, transfer, lease, mortgage, pledge or otherwise dispose of or encumber any of the Bank’s Company's or its Subsidiaries' assets or cancel any of the Bank’s claims exceptCompany's or its Subsidiaries' claims, in each case, in unless prior written approval is given by the ordinary course of business.Buyer;
(h) fail 4.4 Fail to use its reasonable efforts to maintain and preserve the Bank’s Company's and its Subsidiaries' business, organization and goodwill and its existing relationships with its respective customerscustomers and others having business relationships with them;
(i) amend the Bank’s Articles of Incorporation or Bylaws;
(j) incur 4.5 Incur any obligation or liability or enter into any transaction except in the ordinary course of the Bank’s Company's and its Subsidiaries' business, unless prior written approval is given by the Buyer;
(k) fail to take any action necessary and appropriate 4.6 Fail to maintain in full force and effect the Bank’s Company's and its Subsidiaries' corporate existence, rights, licenses and franchises;
(l) pay 4.7 Pay or commit to pay any salary, fee or other compensation at a rate in excess of that prevailing on January December 31, 20162004;
(m) fail 4.8 Fail to maintain all existing policies of insurance with respect to the Bank Company or any of its Subsidiaries in their present form and with their present coverage or comparable substitute policies; WHD/12223603.9 - 14 - (n) enter coverage;
4.9 Enter into any employment, agency or other contract or agreement with respect to the performance of personal services which is not terminable by the Bank Company or its Subsidiaries without liability, on thirty (30) days or less notice, unless prior written approval is given by the Buyer;
(o) 4.10 Utilize any employment agency, placement service or similar service for the purpose of employing any personnel where the Company or any of its Subsidiaries will be obligated to pay any fee or commission for such service, unless prior written approval is given by the Buyer;
4.11 Fail to comply with any law, rule, regulation or final order applicable to the Company or any of its Subsidiaries;
4.12 Pay or commit to pay any bonus or other incentive compensation to any of the Bank Company's or any of the Subsidiary's officers, directors or employees outside of the ordinary course of business or as set forth on Schedule 12.1(o)employees;
(p) make 4.13 Settle, dismiss or grant otherwise compromise in any increase manner any contributions under action, proceeding or suit listed on Exhibit 2.14; or ------------
4.14 Make any Employee Benefit Plan identified in Schedule 4.23 outside of the ordinary course of business, or amend or terminate any such Employee Benefit Plan or adopt any new Employee Benefit Plan, except to the extent required by law;
(q) sell any portion or all of the Bank’s investment portfolio except for those investments which mature or are called in the ordinary course and sell any portion or all of the Bank’s loan portfolio outside of the ordinary course of business;
(r) make any single capital expenditure or commitment for capital expenditure expenditures in excess of $25,000 other than 25,000, unless prior written commitments approval is given by the Buyer. The Management Shareholders will promptly notify Buyer of any material change in the business, operations or obligations in existence as financial condition of the date of this Agreement and disclosed on Schedule 12.1(r);
(s) commit to make a loan Company or grant an extension of credit to any borrower (including any renewals of existing loans or additional advances on loans to existing borrowers of the Bank) which does not comply with the Bank’s loan policy and is not consistent with the past lending practices of the Bank;
(t) except pursuant to contracts to lend money in effect on the date of this Agreement (whether or not any advancement of funds thereunder is discretionary), make, renew or agree to make or renew, any loan or advance on any existing loan if (i) such loan or advance is unsecured and is in excess of $100,000 to any borrower or related borrowers; (i) such loan or advance is secured and is in excess of $1,000,000 to any borrower or related borrowers and is unsecured; or (iii) such loan is in excess of $100,000 and such loan has been declared in default or classified, by the Bank’s officers or directors, (including the Bank’s watch list) provided, however, that the Bank may make such loan in the event that (i) the Bank has delivered to the Buyer or its designated representative a notice of its intention to make such loan and such information as the Buyer or its designated representative shall require in respect thereof and (ii) the Buyer or its designated representative shall not have objected to such loan by giving written or facsimile notice of such objection within two (2) business days following delivery to the Buyer or its designated representative of the notice of intention and information as aforesaid;
(u) make loans to insiders as that term is defined in Section 4.9;
(v) repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution;
(w) originate any loan which is thereafter participated to another financial institution providing for payment on any basis other than pro rata;
(x) make any investments or invest any of the Bank’s assets in any marketable securities except in the ordinary course of business and consistent with prior practices and the Bank’s policies, and in no event with a maturity in excess of 24 months;
(y) except in the ordinary course of business, release or agree to release any collateral securing any loan;
(z) take any action outside the ordinary course of business which will decrease the Book Value of the Bank between the Determination Date and the Closing Date; or
(aa) enter into or amend any other contract, agreement, understanding, arrangement or commitment not already described or addressed in this Section 12.1 that is outside the ordinary course of business and involves an aggregate obligation by the Bank of more than $25,000, other than contracts entered into in respect of deposit agreements. WHD/12223603.9 - 15 -Subsidiaries.
Appears in 1 contract
Samples: Stock Purchase Agreement (Applied Digital Solutions Inc)
Operations Pending Closing. The Seller hereby covenants to and agrees with the Buyer that, from the date hereof to the Closing Date or the termination of this Agreement, and subject to the requirement of the regulators that the Seller must control its own operations in accordance with past operating practice, the Seller shall not without the written consent of the Buyer, cause or allow the Bank to:
(a) fail to carry on its business in substantially the same manner as now being conducted;
(b) declare, pay or make any cash dividend, stock dividend or other distribution with respect to the Bank Shares outside of the ordinary course of business, except for (i) the Capital Dividend in accordance with Section 2.2 and (ii) dividends or distributions paid to Seller in the ordinary course in connection with the issuance of S-corporation tax dividends to Seller’s shareholders;
(c) issue or directly or indirectly sell, transfer or otherwise dispose of, or purchase, redeem, retire or otherwise acquire any Equity Securities of the Bank, or agree to commit to do so;
(d) subdivide or in any way reclassify any of the Equity Securities of the Bank;
(e) grant any option or right to purchase or execute any agreement or otherwise commit to issue any Equity Securities of the Bank;
(f) invest or take any actions to inject any additional capital or equity into the Bank other than increases in the Bank’s capital accounts arising due to earnings in the ordinary course of business;
(g) sell, transfer, lease, mortgage, pledge or otherwise dispose of or encumber any of the Bank’s assets or cancel any of the Bank’s claims except, in each case, in the ordinary course of business.
(h) fail to use its reasonable efforts to preserve the Bank’s business, organization and goodwill and its existing relationships with its respective customers;
(i) amend the Bank’s Articles of Incorporation or Bylaws;
(j) incur any obligation or liability or enter into any transaction except in the ordinary course of the Bank’s business;
(k) fail to take any action necessary and appropriate to maintain in full force and effect the Bank’s corporate existence, rights, licenses and franchises;
(l) pay or commit to pay any salary, fee or other compensation at a rate in excess of that prevailing on January 31, 2016;
(m) fail to maintain all existing policies of insurance with respect to the Bank in their present form and with their present coverage or comparable substitute policies; WHD/12223603.9 - 14 - ;
(n) enter into any employment, agency or other contract or agreement with respect to the performance of personal services which is not terminable by the Bank without liability, on thirty (30) days or less notice;
(o) pay or commit to pay any bonus or other incentive compensation to any of the Bank officers, directors or employees outside of the ordinary course of business or as set forth on Schedule 12.1(o);
(p) make or grant any increase any contributions under any Employee Benefit Plan identified in Schedule 4.23 outside of the ordinary course of business, or amend or terminate any such Employee Benefit Plan or adopt any new Employee Benefit Plan, except to the extent required by law;
(q) sell any portion or all of the Bank’s investment portfolio except for those investments which mature or are called in the ordinary course and sell any portion or all of the Bank’s loan portfolio outside of the ordinary course of business;
(r) make any single capital expenditure or commitment for capital expenditure in excess of $25,000 other than written commitments or obligations in existence as of the date of this Agreement and disclosed on Schedule 12.1(r);
(s) commit to make a loan or grant an extension of credit to any borrower (including any renewals of existing loans or additional advances on loans to existing borrowers of the Bank) which does not comply with the Bank’s loan policy and is not consistent with the past lending practices of the Bank;
(t) except pursuant to contracts to lend money in effect on the date of this Agreement (whether or not any advancement of funds thereunder is discretionary), make, renew or agree to make or renew, any loan or advance on any existing loan if (i) such loan or advance is unsecured and is in excess of $100,000 to any borrower or related borrowers; (i) such loan or advance is secured and is in excess of $1,000,000 to any borrower or related borrowers and is unsecured; or (iii) such loan is in excess of $100,000 and such loan has been declared in default or classified, by the Bank’s officers or directors, (including the Bank’s watch list) provided, however, that the Bank may make such loan in the event that (i) the Bank has delivered to the Buyer or its designated representative a notice of its intention to make such loan and such information as the Buyer or its designated representative shall require in respect thereof and (ii) the Buyer or its designated representative shall not have objected to such loan by giving written or facsimile notice of such objection within two (2) business days following delivery to the Buyer or its designated representative of the notice of intention and information as aforesaid;
(u) make loans to insiders as that term is defined in Section 4.9;
(v) repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution;
(w) originate any loan which is thereafter participated to another financial institution providing for payment on any basis other than pro rata;
(x) make any investments or invest any of the Bank’s assets in any marketable securities except in the ordinary course of business and consistent with prior practices and the Bank’s policies, and in no event with a maturity in excess of 24 months;
(y) except in the ordinary course of business, release or agree to release any collateral securing any loan;
(z) take any action outside the ordinary course of business which will decrease the Book Value of the Bank between the Determination Date and the Closing Date; or
(aa) enter into or amend any other contract, agreement, understanding, arrangement or commitment not already described or addressed in this Section 12.1 that is outside the ordinary course of business and involves an aggregate obligation by the Bank of more than $25,000, other than contracts entered into in respect of deposit agreements. WHD/12223603.9 - 15 -.
Appears in 1 contract
Operations Pending Closing. The Seller hereby represents, warrants and covenants to and agrees with the Buyer that, from the date hereof Seller filed its petition with the Bankruptcy Court (the "Petition Date") to the Closing Date or the termination of this Agreement, Seller has not and subject to the requirement of the regulators that the Seller must control its own operations in accordance with past operating practice, the Seller shall not without the written consent of the Buyer, cause or allow the Bank towill not:
(a) fail 6.1 Fail to carry on its business in substantially the same manner as now being conducted;
(b) declare, 6.2 Fail to pay or make any cash dividend, stock dividend or other distribution with respect to all liabilities in the Bank Shares outside ordinary course of business as due;
6.3 Except in the ordinary course of business, except for (i) the Capital Dividend in accordance with Section 2.2 and (ii) dividends or distributions paid to Seller in the ordinary course in connection with the issuance of S-corporation tax dividends to Seller’s shareholders;
(c) issue or directly or indirectly sell, transfer or otherwise dispose of, or purchase, redeem, retire or otherwise acquire any Equity Securities of the Bank, or agree to commit to do so;
(d) subdivide or in any way reclassify any of the Equity Securities of the Bank;
(e) grant any option or right to purchase or execute any agreement or otherwise commit to issue any Equity Securities of the Bank;
(f) invest or take any actions to inject any additional capital or equity into the Bank other than increases in the Bank’s capital accounts arising due to earnings in the ordinary course of business;
(g) sell, transfer, lease, mortgage, pledge or otherwise dispose of or encumber any of the Bank’s Seller's assets or cancel any of the Bank’s claims except, in each case, in the ordinary course of business.Seller's claims;
(h) fail 6.4 Fail to use its reasonable efforts to maintain and preserve the Bank’s Seller's business, organization and goodwill and its existing relationships with its respective customerscustomers and others having business relationships with them;
(i) amend the Bank’s Articles of Incorporation or Bylaws;
(j) incur 6.5 Incur any obligation or liability or enter into any transaction except in the ordinary course of the Bank’s Seller's business;
(k) fail to take any action necessary and appropriate 6.6 Fail to maintain in full force and effect the Bank’s Seller's corporate existence, rights, licenses and franchises;
(l) pay 6.7 Pay or commit to pay any salary, fee or other compensation at a rate in excess of that prevailing on January 31, 2016the date prior to the Petition Date;
(m) fail 6.8 Fail to maintain all existing policies of insurance with respect to the Bank Seller in their present form and with their present coverage or comparable substitute policies; WHD/12223603.9 - 14 - (n) enter coverage;
6.9 Enter into any employment, agency or other contract or agreement with respect to the performance of personal services which is not terminable by the Bank Seller without liability, on thirty (30) days or less notice;
(o) 6.10 Utilize any employment agency, placement service or similar service for the purpose of employing any personnel where Seller will be obligated to pay any fee or commission for such service, without the written consent of Buyer;
6.11 Fail to comply with any law, rule, regulation or final order applicable to it;
6.12 Pay or commit to pay any bonus or other incentive compensation to any of the Bank its officers, directors or employees outside of the ordinary course of business or as set forth on Schedule 12.1(o)employees;
(p) make 6.13 Settle, dismiss or grant otherwise compromise in any increase manner any contributions under action, proceeding or suit listed on Exhibit 4.14; or
6.14 Make any Employee Benefit Plan identified in Schedule 4.23 outside of the ordinary course of business, or amend or terminate any such Employee Benefit Plan or adopt any new Employee Benefit Plan, except to the extent required by law;
(q) sell any portion or all of the Bank’s investment portfolio except for those investments which mature or are called in the ordinary course and sell any portion or all of the Bank’s loan portfolio outside of the ordinary course of business;
(r) make any single capital expenditure or commitment for capital expenditure expenditures in excess of $25,000 other than written commitments or obligations in existence as 5,000. Seller will promptly notify Buyer of the date of this Agreement and disclosed on Schedule 12.1(r);
(s) commit to make a loan or grant an extension of credit to any borrower (including any renewals of existing loans or additional advances on loans to existing borrowers of the Bank) which does not comply with the Bank’s loan policy and is not consistent with the past lending practices of the Bank;
(t) except pursuant to contracts to lend money in effect on the date of this Agreement (whether or not any advancement of funds thereunder is discretionary), make, renew or agree to make or renew, any loan or advance on any existing loan if (i) such loan or advance is unsecured and is in excess of $100,000 to any borrower or related borrowers; (i) such loan or advance is secured and is in excess of $1,000,000 to any borrower or related borrowers and is unsecured; or (iii) such loan is in excess of $100,000 and such loan has been declared in default or classified, by the Bank’s officers or directors, (including the Bank’s watch list) provided, however, that the Bank may make such loan material change in the event that (i) the Bank has delivered to the Buyer or its designated representative a notice of its intention to make such loan and such information as the Buyer or its designated representative shall require in respect thereof and (ii) the Buyer or its designated representative shall not have objected to such loan by giving written or facsimile notice of such objection within two (2) business days following delivery to the Buyer or its designated representative of the notice of intention and information as aforesaid;
(u) make loans to insiders as that term is defined in Section 4.9;
(v) repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution;
(w) originate any loan which is thereafter participated to another financial institution providing for payment on any basis other than pro rata;
(x) make any investments or invest any of the Bank’s assets in any marketable securities except in the ordinary course of business and consistent with prior practices and the Bank’s policies, and in no event with a maturity in excess of 24 months;
(y) except in the ordinary course of business, release operations or agree to release any collateral securing any loan;
(z) take any action outside the ordinary course financial condition of business which will decrease the Book Value of the Bank between the Determination Date and the Closing Date; or
(aa) enter into or amend any other contract, agreement, understanding, arrangement or commitment not already described or addressed in this Section 12.1 that is outside the ordinary course of business and involves an aggregate obligation by the Bank of more than $25,000, other than contracts entered into in respect of deposit agreements. WHD/12223603.9 - 15 -Seller.
Appears in 1 contract
Operations Pending Closing. The Seller Management Shareholders hereby covenants represent, warrant and covenant to and agrees agree with the Buyer that, from the date hereof to the Closing Date or the termination of this Agreement, and subject to the requirement of the regulators that the Seller must control its own operations in accordance with past operating practice, the Seller Management Shareholders shall not without the written consent of the Buyer, cause or allow the Bank Company or any of its Subsidiaries to:
(a) fail 4.1 Fail to carry on its business in substantially the same manner as now being conducted;
(b) declare, 4.2 Fail to pay or make any cash dividend, stock dividend or other distribution with respect to all liabilities in the Bank Shares outside ordinary course of business as due;
4.3 Except in the ordinary course of business, except for (i) the Capital Dividend in accordance with Section 2.2 and (ii) dividends or distributions paid to Seller in the ordinary course in connection with the issuance of S-corporation tax dividends to Seller’s shareholders;
(c) issue or directly or indirectly sell, transfer or otherwise dispose of, or purchase, redeem, retire or otherwise acquire any Equity Securities of the Bank, or agree to commit to do so;
(d) subdivide or in any way reclassify any of the Equity Securities of the Bank;
(e) grant any option or right to purchase or execute any agreement or otherwise commit to issue any Equity Securities of the Bank;
(f) invest or take any actions to inject any additional capital or equity into the Bank other than increases in the Bank’s capital accounts arising due to earnings in the ordinary course of business;
(g) sell, transfer, lease, mortgage, pledge or otherwise dispose of or encumber any of the BankCompany’s or its Subsidiaries’ assets or cancel any of the BankCompany’s claims exceptor its Subsidiaries’ claims, in each case, in unless prior written approval is given by the ordinary course of business.Buyer;
(h) fail 4.4 Fail to use its reasonable efforts to maintain and preserve the BankCompany’s and its Subsidiaries’ business, organization and goodwill and its existing relationships with its respective customerscustomers and others having business relationships with them;
(i) amend the Bank’s Articles of Incorporation or Bylaws;
(j) incur 4.5 Incur any obligation or liability or enter into any transaction except in the ordinary course of the BankCompany’s and its Subsidiaries’ business, unless prior written approval is given by the Buyer;
(k) fail to take any action necessary and appropriate 4.6 Fail to maintain in full force and effect the BankCompany’s and its Subsidiaries’ corporate existence, rights, licenses and franchises;
(l) pay 4.7 Pay or commit to pay any salary, fee or other compensation at a rate in excess of that prevailing on January December 31, 20162004;
(m) fail 4.8 Fail to maintain all existing policies of insurance with respect to the Bank Company or any of its Subsidiaries in their present form and with their present coverage or comparable substitute policies; WHD/12223603.9 - 14 - (n) enter coverage;
4.9 Enter into any employment, agency or other contract or agreement with respect to the performance of personal services which is not terminable by the Bank Company or its Subsidiaries without liability, on thirty (30) days or less notice;
(o) pay or commit to pay any bonus or other incentive compensation to any of the Bank officers, directors or employees outside of the ordinary course of business or as set forth on Schedule 12.1(o);
(p) make or grant any increase any contributions under any Employee Benefit Plan identified in Schedule 4.23 outside of the ordinary course of business, or amend or terminate any such Employee Benefit Plan or adopt any new Employee Benefit Plan, except to the extent required by law;
(q) sell any portion or all of the Bank’s investment portfolio except for those investments which mature or are called in the ordinary course and sell any portion or all of the Bank’s loan portfolio outside of the ordinary course of business;
(r) make any single capital expenditure or commitment for capital expenditure in excess of $25,000 other than unless prior written commitments or obligations in existence as of the date of this Agreement and disclosed on Schedule 12.1(r);
(s) commit to make a loan or grant an extension of credit to any borrower (including any renewals of existing loans or additional advances on loans to existing borrowers of the Bank) which does not comply with the Bank’s loan policy and approval is not consistent with the past lending practices of the Bank;
(t) except pursuant to contracts to lend money in effect on the date of this Agreement (whether or not any advancement of funds thereunder is discretionary), make, renew or agree to make or renew, any loan or advance on any existing loan if (i) such loan or advance is unsecured and is in excess of $100,000 to any borrower or related borrowers; (i) such loan or advance is secured and is in excess of $1,000,000 to any borrower or related borrowers and is unsecured; or (iii) such loan is in excess of $100,000 and such loan has been declared in default or classified, given by the Bank’s officers or directors, (including the Bank’s watch list) provided, however, that the Bank may make such loan in the event that (i) the Bank has delivered to the Buyer or its designated representative a notice of its intention to make such loan and such information as the Buyer or its designated representative shall require in respect thereof and (ii) the Buyer or its designated representative shall not have objected to such loan by giving written or facsimile notice of such objection within two (2) business days following delivery to the Buyer or its designated representative of the notice of intention and information as aforesaidBuyer;
(u) make loans to insiders as that term is defined in Section 4.9;
(v) repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution;
(w) originate any loan which is thereafter participated to another financial institution providing for payment on any basis other than pro rata;
(x) make any investments or invest any of the Bank’s assets in any marketable securities except in the ordinary course of business and consistent with prior practices and the Bank’s policies, and in no event with a maturity in excess of 24 months;
(y) except in the ordinary course of business, release or agree to release any collateral securing any loan;
(z) take any action outside the ordinary course of business which will decrease the Book Value of the Bank between the Determination Date and the Closing Date; or
(aa) enter into or amend any other contract, agreement, understanding, arrangement or commitment not already described or addressed in this Section 12.1 that is outside the ordinary course of business and involves an aggregate obligation by the Bank of more than $25,000, other than contracts entered into in respect of deposit agreements. WHD/12223603.9 - 15 -
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