Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective Time of the Merger, Bank shall: (a) use its reasonable best efforts consistent with this Agreement to maintain and preserve intact its present business organization and to maintain and preserve its relationships and goodwill with account holders, borrowers, employees and others having business relationships with Bank and retain the services of its officers and key employees; (b) use its reasonable best efforts to keep in full force and effect all of the existing material permits and licenses of Bank; (c) maintain insurance coverage at least equal to that now in effect on all properties which it owns or leases and on its business operations; (d) perform its material contractual obligations and not become in material default on any such obligations; (e) duly observe and conform in all material respects to all lawful requirements applicable to its business; (f) maintain its assets and properties in good condition and repair, normal wear and tear excepted; (g) within twenty-four (24) hours upon learning of such information, advise BPFH in writing of any event or any other transaction within its knowledge whereby any Person or Related Group of Persons acquires, directly or indirectly, record or beneficial ownership or control (as defined in Rule 13d-3 promulgated by the SEC under the Exchange Act) of 5 % or more of the outstanding Bank Stock prior to the record date fixed for the Bank Shareholders' Meeting or any adjourned meeting thereof to approve this Agreement and the transactions contemplated herein; (h) within three (3) business days notify BPFH regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent's report, any notice of proposed assessment, or any other similar notification of potential adjustments to the tax liabilities of Bank, or any actual or threatened collection enforcement activity by any tax authority with respect to tax liabilities of Bank; (i) make available to BPFH monthly unaudited balance sheets and income statements of Bank within 25 days after the close of each calendar month; (j) not later than the 30th day of each calendar month, amend or supplement the Bank Lists, attached hereto as schedules and prepared and delivered pursuant to Article 4, to ensure that the information set forth in the Bank Lists accurately reflects the then-current status of Bank; however, amendments need be made only in the event of a material change to any of the Bank Lists; (k) use its best efforts to obtain any third party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Bank or that is contemplated in this Agreement as required in connection with the Merger; (l) maintain an allowance for loan and lease losses consistent with practices and methodology as in effect on the date of the execution of this Agreement; (m) promptly advise BPFH of any change or event having a change or effect that is or is reasonably likely to be materially adverse to Bank's business, results of operations, financial condition or prospects or which it believes would or would be reasonably likely to cause or constitute a material breach of any of its representations, warranties or covenants contained herein; (n) furnish to Lillick & ▇▇▇▇▇▇▇ LLP, promptly upon request, written representations and certificates as deemed reasonably necessary or appropriate for purposes of enabling Lillick & ▇▇▇▇▇▇▇ LLP to render the tax opinion referred to in Sections 10.1 hereof; and (o) use its best efforts to obtain an insurance policy (the "Insurance Policy") on terms reasonably acceptable to BPFH to insure against any charges, complaints, claims, demands, liabilities, obligations, actions, and causes of action of any kind or nature (including for attorneys' fees, interest, expenses and costs actually incurred), whether at law, in equity, or by statute, fixed or contingent, arising out of, concerning or relating to (i) the litigation set forth on SCHEDULE 4.11 attached hereto or (ii) the facts and circumstances underlying such litigation.
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Sources: Agreement and Plan of Reorganization (Boston Private Financial Holdings Inc)
Affirmative Conduct Prior to Effective Time of the Merger. Between the date hereof and the Effective ------------------------------------------------------------- Time of the Merger, Bank Kaweah shall:
(a) 6.2.1 use its commercially reasonable best efforts consistent with this Agreement to maintain and preserve intact its present business organization and to maintain and preserve its relationships and goodwill with account holders, borrowers, employees and others having business relationships with Bank and retain the services of its officers and key employeesKaweah;
(b) 6.2.2 use its commercially reasonable best efforts to keep in full force and effect all of the existing material permits and licenses of BankKaweah;
(c) 6.2.3 use its commercially reasonable efforts to maintain insurance coverage at least equal to that now in effect on all properties for which it owns or leases is responsible and on its business operations;
(d) 6.2.4 perform its material contractual obligations and not become in material default on any such obligations;
(e) 6.2.5 duly observe and conform in all material respects to all lawful requirements applicable to its business;
(f) 6.2.6 maintain its assets and properties in good condition and repair, normal wear and tear excepted;
(g) within twenty-four (24) hours 6.2.7 promptly upon learning of such information, advise BPFH CVB in writing of any event or any other transaction within its knowledge whereby any Person or Related Group of Persons acquires, directly or indirectly, record or beneficial ownership or control (as defined in Rule 13d-3 promulgated by the SEC under the Exchange Act) of 5 5% or more of the outstanding Bank Kaweah Stock prior to the record date fixed for the Bank Kaweah Shareholders' Meeting or any adjourned meeting thereof to approve this Agreement and the transactions contemplated herein;
(h) within three (3) business days 6.2.8 promptly notify BPFH CBB regarding receipt from any tax authority of any notification of the commencement of an audit, any request to extend the statute of limitations, any statutory notice of deficiency, any revenue agent's report, any notice of proposed assessment, or any other similar notification of potential adjustments to the tax liabilities of BankKaweah, or any actual or threatened collection enforcement activity by any tax authority with respect to tax liabilities of BankKaweah;
(i) 6.2.9 make available to BPFH CBB monthly unaudited balance sheets and income statements of Bank Kaweah within 25 days after the close of each calendar month;
(j) 6.2.10 not later than the 30th day of each calendar month, amend or supplement the Bank Lists, attached hereto as schedules and Kaweah Lists prepared and delivered pursuant to Article 4, 4 to ensure that the information set forth in the Bank Kaweah Lists accurately reflects the then-current status of Bank; however, amendments need Kaweah and Kaweah. Kaweah shall further amend or supplement the Kaweah Lists as of the Closing Date if necessary to reflect any additional information that needs to be made only included in the event of a material change to any of the Bank Kaweah Lists;
(k) 6.2.11 use its best commercially reasonable efforts to obtain any third third-party consent with respect to any contract, agreement, lease, license, arrangement, permit or release that is material to the business of Bank Kaweah or that is contemplated in this Agreement as required in connection with the Merger;
(l) 6.2.12 maintain an allowance for loan and lease losses consistent with Kaweah's past practices and methodology as in effect on the date of the execution of this Agreement;
(m) promptly advise BPFH of any change or event having a change or effect that is or is reasonably likely to be materially adverse to Bank's business, results of operations, financial condition or prospects or which it believes would or would be reasonably likely to cause or constitute a material breach of any of its representations, warranties or covenants contained herein;
(n) 6.2.13 furnish to Lillick Manatt, Phelps & Phillips, LLP promptly upon i▇▇ ▇▇▇tte▇ ▇▇▇▇▇▇▇ LLP, promptly upon request, t written representations and certificates as deemed reasonably necessary or appropriate for purposes of enabling Lillick Manatt, Phelps & Phillips, LLP to render the ta▇ ▇▇▇▇ion▇ ▇▇▇▇▇▇▇ LLP to render the tax opinion referred ed to in Sections 10.1 Section 9.7 hereof; and
(o) use its best efforts to obtain an insurance policy (the "Insurance Policy") on terms reasonably acceptable to BPFH to insure against any charges, complaints, claims, demands, liabilities, obligations, actions, and causes of action of any kind or nature (including for attorneys' fees, interest, expenses and costs actually incurred), whether at law, in equity, or by statute, fixed or contingent, arising out of, concerning or relating to (i) the litigation set forth on SCHEDULE 4.11 attached hereto or (ii) the facts and circumstances underlying such litigation.
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