Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheld: (a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities. (b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock. (c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries. (d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed. (e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries. (f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements. (g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan. (h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date. (i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness. (j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed. (k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund. (l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC. (m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC). (n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement. (o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable. (p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault. (q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness. (r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries. (s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements. (t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.
Appears in 2 contracts
Sources: Merger Agreement (GOLUB CAPITAL BDC, Inc.), Merger Agreement (Golub Capital BDC 3, Inc.)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 GETCO Disclosure Schedule or Section 6.2 of the GBDC Knight Disclosure Schedule, as applicable, neither GBDC 3 as expressly contemplated or GBDC shallpermitted by this Agreement, or as otherwise required by applicable Law, each of GETCO and Knight shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable the other party (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayedwithheld, denied, conditioned or withheld:delayed):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3sell, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDClease, Permitted Issuanceslicense, issuemortgage, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.
(c) Sellencumber, transfer, leaseconvey, mortgageassign, encumber or otherwise dispose of any of its assets material rights, properties or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business tangible or properties of any other Personintangible, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; maketo third parties who are not Affiliates;
(b) (i) incur, change assume or revoke guarantee any Indebtedness, (ii) cancel or waive any claims under any material Tax election; Indebtedness or settle amend or compromise modify adversely to it in any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply respect the terms relating to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and isIndebtedness, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(niii) Other other than in the ordinary course of business consistent with such party’s investment objectives and policies past practice, assume, guarantee, endorse or otherwise as publicly disclosedan accommodation become responsible for obligations of any Person, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(oiv) Other other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice make any material loans or advances;
(c) (i) adjust, split, combine or reclassify any capital stock, unit or other equity interest, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or other equity interest or make, declare or pay any dividend or distribution (except for (x) dividends paid in the ordinary course of business by any direct or indirect wholly owned Subsidiary to it or any other direct or indirect wholly owned Subsidiary and such party’s investment objectives and policies (y) the Permitted Distributions set forth in Section 6.3) or make any other distribution on any shares of its capital stock or other equity interest or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stock or other equity interest, (iii) grant any options, stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock or equity interests, other than in the ordinary course of business as publicly disclosedspecifically described in the GETCO Disclosure Schedule or the Knight Disclosure Schedule, as applicable, (iv) issue or commit to issue any additional shares of capital stock or other equity interest other than pursuant to the exercise or settlement of Knight Stock Options or conversion of shares of the Knight Series A-1 Preferred Stock or Knight Series A-2 Preferred Stock or upon the vesting of Class E Units of GETCO, in an amount each case that are outstanding as of the date hereof or that are issued following the date hereof in compliance with this Agreement or sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock or equity interests;
(d) except as required under applicable Law or the terms of any GETCO Benefit Plan or Knight Benefit Plan, as applicable, existing as of the date hereof (i) enter into, adopt or terminate any employee benefit or compensation plan, program, policy or arrangement for the benefit or welfare of any current or former employee, officer, director or consultant, (ii) amend (or alter a prior interpretation of) any employee benefit or compensation plan, program, policy or arrangement for the benefit or welfare of any current or former employee, officer, director or consultant, (iii) increase in any manner the compensation or benefits payable to any current or former employee, officer, director or consultant (other than any annual salary or wage increases in the ordinary course of business consistent with past practice of not more than 5% in the aggregate per annum), (iv) pay or award, or commit to pay or award, any bonuses or incentive compensation, other than in the ordinary course of business as specifically described in the GETCO Disclosure Schedule or the Knight Disclosure Schedule, as applicable, (v) grant or accelerate the vesting of any equity-based awards or other compensation, (vi) enter into any new, or amend any existing, employment, severance, change in control, retention, bonus guarantee, collective bargaining agreement or similar agreement or arrangement, (vii) fund any rabbi trust or similar arrangement, (viii) terminate the employment or services of any officer, employee, independent contractor or consultant other than for cause, or (ix) hire any officer, employee, independent contractor or consultant who has target annual compensation greater than $700,000;
(e) other than immaterial acquisitions of assets for cash in the ordinary course of business consistent with past practice, (i) acquire (by merger, consolidation, purchase of assets or equity interests or otherwise) any businesses, assets, properties or interests in any other Person or (ii) merge or consolidate with any Person;
(f) make any capital expenditure requiring payments in excess of $10 million individually or $25 million in the aggregate;
(g) make any material investment either by purchase of stock or securities or contributions to capital in excess of $25 million (other than in a wholly owned Subsidiary);
(h) (i) enter into any new line of business or (ii) except as required by applicable Law or the regulations or policies imposed on it by a Governmental Entity, change any material policy established by its Board of Directors or executive officers that generally applies to its operations;
(i) amend its charter, bylaws, certificate of formation, limited liability company agreement or other comparable organizational documents, or otherwise take any action to exempt any person from any provision of such documents;
(j) (i) terminate or amend or otherwise modify in any material respect other than in the ordinary course of business or knowingly violate in any material respect the terms of, any GETCO Contract or Knight Contract, as applicable, or (ii) enter into any new agreements or contracts or other binding obligations other than in the ordinary course of business or that if in existence as of the date hereof would be a GETCO Contract pursuant to Sections 3.13(a)(v) or 3.13(a)(vi) or Knight Contract pursuant to Sections 4.13(a)(v) or 4.13(a)(vi);
(k) settle or compromise any litigation, action or proceeding with a Governmental Entity, shareholder or unit holders;
(l) commence, settle or compromise any litigation, action or proceeding with any Person other than a Governmental Entity, shareholder or unit holders except for (i) settlements involving only monetary remedies with a value not in excess of $250,000 5,000,000 with respect to any individual litigation, action or proceeding or $15,000,000 in the aggregate (after reduction by any insurance proceeds actually received); and (ii) would not impose the commencement of any material restriction on litigation, action or proceeding in the conduct ordinary course of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.consistent with past practice;
(qm) Other other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practice, materially reduce the amount of insurance coverage or fail to renew any material existing insurance policies;
(n) amend in a manner that adversely impacts the ability to conduct its business, terminate or allow to lapse any material Permit;
(o) (i) paycancel, discharge abandon or satisfy allow to lapse any Indebtedness for borrowed money, material Intellectual Property other than in the paymentordinary course of business consistent with past practice, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel disclose to any material indebtedness.third party any trade secret other than in the ordinary course of business consistent with past practice;
(rp) Except implement or adopt any change in its accounting principles, practices or methods, other than as otherwise expressly contemplated may be required by this Agreementapplicable Law, merge GAAP or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to regulatory guidelines;
(q) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization reorganization;
(r) intentionally take any action that is intended to result in any of such party the conditions to the Mergers set forth in Article VIII not being satisfied;
(i) make, change or revoke any material Tax election, (ii) change any material method of Tax accounting or any of its Consolidated Subsidiaries.
annual Tax accounting period, (siii) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.closing agreement, (iv) settle or compromise any material liability for Taxes, (v) file any material amended Tax Return, or (vi) surrender any right or claim to a material refund of Taxes, in each case except (A) in the ordinary course of business and consistent with past practice, or (B) as would not have an adverse effect on it or its Subsidiaries (or, following the closing, on the Company) that is material; or
(t) Agree agree to take, or make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.
Appears in 2 contracts
Sources: Merger Agreement (Knight Capital Group, Inc.), Merger Agreement (GETCO Holding Company, LLC)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC VBI nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDCchief financial officer of SBC (or, as applicable (and with respect to Section 4.2(u) or 4.2(v), the consent chief credit officer or chief lending officer of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDCSBC), which prior written consent shall not be unreasonably delayed, conditioned withheld or withhelddelayed provided:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement and except as set forth in Section 4.2(k) of the Company Disclosure Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any VBI Stock Plan, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $150,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or any Regulatory Authority;
(n) make, change or revoke any tax election; adopt or change any tax accounting method; file any amended Tax Return; settle or compromise any Liability for Taxes; enter into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of applicable Law); surrender any right to claim a refund of Taxes; consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes; fail to timely pay any Taxes (including estimated Taxes); incur any material Tax Liability outside the ordinary course of business; prepare and file any Tax Return inconsistent with past practices; or fail to timely file any Tax Returns that become due;
(o) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, GAAPthat nothing in this Section 4.2(o) shall preclude VBI from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the SEC Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire make any employees loans, or establishenter into any commitments to make loans, become which vary other than in immaterial respects from its written loan policies, a party true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or commit renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $2.5 million and which is unsecured, or $5.0 million and which is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to adopt any Employee Benefit Plan.SNB;
(hw) Take any action or knowingly fail to take any action that wouldat the time of taking such action is reasonably likely to prevent, or would materially interfere with, the consummation of the Merger;
(x) take any action, or refrain from taking any action, where such act or failure to act could reasonably be expected to (i) materially delay prevent either the Merger or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iy) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by earlier termination of this Agreement, as Previously Disclosed or except as set forth in Section 6.2 of the GBDC 3 Sterling Disclosure Schedule or Section 6.2 of the GBDC W▇▇▇▇▇▇ Disclosure Schedule, as applicableexpressly contemplated or permitted by this Agreement or as required by law, neither GBDC 3 or GBDC Sterling nor W▇▇▇▇▇▇ shall, and neither Sterling nor W▇▇▇▇▇▇ shall permit any of its Consolidated their respective Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable the other party to this Agreement (and the such consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not to be unreasonably delayedwithheld, conditioned or withheld:delayed):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares federal funds borrowings and Federal Home Loan Bank borrowings, in each case with a maturity not in excess of its capital stocksix (6) months, (ii) any GBDC 3 Voting Debt or GBDC Voting Debtdeposits, as applicable, or other voting securities or (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) entry into repurchase agreements, in each case in the ordinary course of business, incur any securities convertible into indebtedness for borrowed money (other than indebtedness of Sterling or exercisable any of its wholly-owned Subsidiaries to Sterling or exchangeable forany of its wholly-owned Subsidiaries, on the one hand, or of W▇▇▇▇▇▇ or any of its wholly-owned Subsidiaries to W▇▇▇▇▇▇ or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Rights to acquireindividual, any such shares corporation or other securities.entity;
(b) (i) Makeadjust, authorizesplit, combine or reclassify any capital stock;
(ii) make, declare, pay or set aside a record date for any dividend in respect ofdividend, or declare or make any other distribution on, any shares of its capital stockor directly or indirectly redeem, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exercisable for any shares of its capital stock or other equity or voting securities, except, in each case, (A) regular quarterly cash dividends by Sterling at a rate not in excess of $0.07 per share of Sterling Common Stock, (B) regular quarterly cash dividends by W▇▇▇▇▇▇ at a rate not in excess of $0.40 per share of W▇▇▇▇▇▇ Common Stock, (C) dividends paid by any of the Subsidiaries of each of Sterling and W▇▇▇▇▇▇ to Sterling or W▇▇▇▇▇▇ or any of their wholly-owned Subsidiaries, respectively, (D) in the case of Sterling, dividends provided for and paid on shares of Sterling Series A Preferred Stock in accordance with the terms of such Sterling Series A Preferred Stock, (E) in the case of W▇▇▇▇▇▇, dividends provided for and paid on shares of W▇▇▇▇▇▇ Preferred Stock in accordance with the terms of such W▇▇▇▇▇▇ Preferred Stock, (F) in the case of W▇▇▇▇▇▇, regular distributions on outstanding trust preferred securities in accordance with their terms or (G) the acceptance of shares of Sterling Common Stock or W▇▇▇▇▇▇ Common Stock, as the case may be, as payment for the exercise price of stock options or for withholding Taxes incurred in connection with the exercise of stock options or the vesting or settlement of equity compensation awards, in each case, in accordance with past practice and the terms of the applicable award agreements;
(iii) grant any stock options, stock appreciation rights, warrants performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any person any right to acquire any shares of capital stock or other equity or voting securities of Sterling or W▇▇▇▇▇▇ or any of their respective Subsidiaries, other than in the case of W▇▇▇▇▇▇, grants of options to acquirepurchase under the W▇▇▇▇▇▇ ESPP; or
(iv) issue, sell, transfer, encumber or otherwise permit to become outstanding any shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, such or exercisable for, any shares of its capital stock.stock or other equity or voting securities, including any securities of Sterling or W▇▇▇▇▇▇ or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of Sterling or W▇▇▇▇▇▇ or their respective Subsidiaries, except pursuant to the exercise of stock options or the vesting or settlement of equity compensation awards in accordance with their terms;
(c) Sellsell, transfer, lease, mortgage, encumber or otherwise dispose of any of its material properties or assets or propertiesto any individual, except for (i) sales, transfers, leases, mortgages, encumbrances corporation or other dispositions entity other than a wholly-owned Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedbusiness, or (ii) encumbrances required pursuant to secure Permitted Indebtedness contracts or agreements in force at the date of such party or any of its Consolidated Subsidiaries.this Agreement;
(d) Acquire except for foreclosure or agree to acquire all or any portion acquisitions of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except control in a transaction conducted fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith in the ordinary course of business consistent with such party’s business, make any material investment objectives and policies in or acquisition of (whether by purchase of stock or securities, contributions to capital, property transfers, merger or consolidation, or formation of a joint venture or otherwise) any other person or the property or assets of any other person, in each case, other than a wholly-owned Subsidiary of Sterling or W▇▇▇▇▇▇, as publicly disclosed.applicable;
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in each case except for transactions in the case ordinary course of GBDC 3) business, terminate, materially amend, or the GBDC Charter waive any material provision of, any Sterling Contract or the GBDC Bylaws (in W▇▇▇▇▇▇ Contract, as the case of GBDC) may be, or make any other change in any instrument or agreement governing documents or similar governing documents the terms of any of such party’s Consolidated Subsidiaries.its securities, other than normal renewals of contracts without material adverse changes of terms with respect to Sterling or W▇▇▇▇▇▇, or enter into any contract that would constitute a Sterling Contract or W▇▇▇▇▇▇ Contract, if it were in effect on the date of this Agreement;
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than except as required by under applicable Law, GAAP, law or the SEC terms of any Sterling Benefit Plan or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee W▇▇▇▇▇▇ Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements Plan existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into hereof, as applicable, (i) enter into, establish, adopt, amend or terminate any Sterling Benefit Plan or W▇▇▇▇▇▇ Benefit Plan, or any arrangement that would be a Sterling Benefit Plan or a W▇▇▇▇▇▇ Benefit Plan if in effect on the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure date hereof, other than obligations with respect to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
broad-based welfare benefit plans (k) File or amend any material Tax Return other than severance) in the ordinary course of business consistent with past practice and as would not reasonably be expected to materially increase the cost of benefits under any such party’s investment objectives and policies Sterling Benefit Plan or W▇▇▇▇▇▇ Benefit Plan, as publicly disclosed; makethe case may be, change (ii) increase the compensation or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply benefits payable to any new current or existing portfolio companies former employee, director or individual consultant, other than increases for current employees with an annual base salary below $300,000 in which such party connection with a promotion (permitted hereunder) or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contractresponsibilities, as applicable.
(p) Settle any Proceeding against itin each case, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosedto a level consistent with similarly situated peer employees, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liabilityaccelerate the vesting of any equity-based awards or other compensation or benefits, guilt (iv) enter into any new, or fault.
(q) Other than amend any existing, employment, severance, change in control, retention, collective bargaining agreement or similar agreement or arrangement; provided, however, that the parties may enter into offer letters with new commercial banking hires in the ordinary course of business consistent with past practice that do not provide for enhanced or change in control severance, (v) fund any rabbi trust or similar arrangement, or in any other way secure the payment of compensation or benefits under any Sterling Benefit Plan or W▇▇▇▇▇▇ Benefit Plan, as the case may be, (vi) terminate the employment or services of any employee with an annual base salary equal to or in excess of $300,000, other than for cause, or (vii) hire or promote any employee with an annual base salary equal to or in excess of $300,000 (other than as a replacement hire or promotion on substantially similar terms of employment as the departed employee), or significantly change the responsibilities assigned to any such party’s investment objectives employee;
(g) settle any material claim, suit, action or proceeding, except involving solely monetary remedies in an amount and policies for consideration not in excess of $1,000,000 individually or $2,000,000 in the aggregate and that would not impose any material restriction on, or create any adverse precedent that would be material to, the business of it or its Subsidiaries or the Surviving Corporation;
(h) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as publicly disclosed, a “reorganization” within the meaning of Section 368(a) of the Code;
(i) payamend its certificate of incorporation, discharge its bylaws or satisfy comparable governing documents of its Significant Subsidiaries;
(j) materially restructure or materially change its investment securities or derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(k) implement or adopt any Indebtedness for borrowed moneychange in its accounting principles, practices or methods, other than as may be required by GAAP;
(l) enter into any new line of business or, other than in the paymentordinary course of business (which may include partnering with third parties in origination, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as flow, servicing and other capacities) consistent with past practice, change in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, securitization and servicing policies (including any change in the maximum ratio or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by applicable law, regulation or policies imposed by any Governmental Entity;
(rm) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party itself or any of its Consolidated Significant Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personperson, or adoptrestructure, recommend, propose reorganize or announce an intention to adopt a plan of complete completely or partial liquidation, dissolution, restructuring, recapitalization partially liquidate or other reorganization of such party dissolve it or any of its Consolidated Significant Subsidiaries.;
(sn) With respect to GBDC 3make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any new GBDC 3 Subscription Agreements.closing agreement with respect to a material amount of Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any material right to claim a refund of Taxes; or
(to) Agree agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board its board of directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited by this Section 6.25.2.
Appears in 2 contracts
Sources: Merger Agreement (Sterling Bancorp), Merger Agreement (Sterling Bancorp)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by earlier termination of this Agreement, as Previously Disclosed or except as set forth in Section 6.2 of the GBDC 3 Sterling Disclosure Schedule or Section 6.2 of the GBDC ▇▇▇▇▇▇▇ Disclosure Schedule, as applicableexpressly contemplated or permitted by this Agreement or as required by law, neither GBDC 3 or GBDC Sterling nor ▇▇▇▇▇▇▇ shall, and neither Sterling nor ▇▇▇▇▇▇▇ shall permit any of its Consolidated their respective Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable the other party to this Agreement (and the such consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not to be unreasonably delayedwithheld, conditioned or withheld:delayed):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares federal funds borrowings and Federal Home Loan Bank borrowings, in each case with a maturity not in excess of its capital stocksix (6) months, (ii) any GBDC 3 Voting Debt or GBDC Voting Debtdeposits, as applicable, or other voting securities or (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) entry into repurchase agreements, in each case in the ordinary course of business, incur any securities convertible into indebtedness for borrowed money (other than indebtedness of Sterling or exercisable any of its wholly-owned Subsidiaries to Sterling or exchangeable forany of its wholly-owned Subsidiaries, on the one hand, or of ▇▇▇▇▇▇▇ or any of its wholly-owned Subsidiaries to ▇▇▇▇▇▇▇ or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Rights to acquireindividual, any such shares corporation or other securities.entity;
(b) (i) Makeadjust, authorizesplit, combine or reclassify any capital stock;
(ii) make, declare, pay or set aside a record date for any dividend in respect ofdividend, or declare or make any other distribution on, any shares of its capital stockor directly or indirectly redeem, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such capital stock.
(conly after the passage of time or the occurrence of certain events) Sell, transfer, lease, mortgage, encumber or otherwise dispose of exchangeable into or exercisable for any shares of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances capital stock or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedequity or voting securities, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companiesexcept, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(kA) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as regular quarterly cash dividends by Sterling at a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount rate not in excess of $250,000 0.07 per share of Sterling Common Stock, (B) regular quarterly cash dividends by ▇▇▇▇▇▇▇ at a rate not in the aggregate excess of $0.40 per share of ▇▇▇▇▇▇▇ Common Stock, (after reduction C) dividends paid by any insurance proceeds actually received); (ii) would not impose any material restriction on of the conduct Subsidiaries of business each of it Sterling and ▇▇▇▇▇▇▇ to Sterling or ▇▇▇▇▇▇▇ or any of its Consolidated Subsidiaries ortheir wholly-owned Subsidiaries, after respectively, (D) in the Effective Timecase of Sterling, GBDCdividends provided for and paid on shares of Sterling Series A Preferred Stock in accordance with the terms of such Sterling Series A Preferred Stock, GBDC 3(E) in the case of ▇▇▇▇▇▇▇, dividends provided for and paid on shares of ▇▇▇▇▇▇▇ Preferred Stock in accordance with the Surviving Company terms of such ▇▇▇▇▇▇▇ Preferred Stock, (F) in the case of ▇▇▇▇▇▇▇, regular distributions on outstanding trust preferred securities in accordance with their terms or (G) the acceptance of shares of Sterling Common Stock or ▇▇▇▇▇▇▇ Common Stock, as the case may be, as payment for the exercise price of stock options or for withholding Taxes incurred in connection with the exercise of stock options or the vesting or settlement of equity compensation awards, in each case, in accordance with past practice and the terms of the applicable award agreements;
(iii) grant any stock options, stock appreciation rights, performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any person any right to acquire any shares of capital stock or other equity or voting securities of Sterling or ▇▇▇▇▇▇▇ or any of their respective Consolidated Subsidiaries and (iii) would not admit liabilitySubsidiaries, guilt or fault.
(q) Other other than in the ordinary course case of business consistent with such party’s investment objectives and policies as publicly disclosed▇▇▇▇▇▇▇, grants of options to purchase under the ▇▇▇▇▇▇▇ ESPP; or
(iiv) payissue, discharge sell, transfer, encumber or satisfy otherwise permit to become outstanding any Indebtedness for borrowed moneyshares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other than the paymentequity or voting securities, discharge including any securities of Sterling or satisfaction required ▇▇▇▇▇▇▇ or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of Sterling or ▇▇▇▇▇▇▇ or their respective Subsidiaries, except pursuant to the terms exercise of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board stock options or the GBDC Board, as applicable, authorizing, any vesting or settlement of the actions prohibited by this Section 6.2.equity compensation awards in accordance with their terms;
Appears in 2 contracts
Sources: Merger Agreement (Webster Financial Corp), Merger Agreement (Webster Financial Corp)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC Professional nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDCchief financial officer of SBC (or, as applicable (and with respect to Section 4.2(u) or 4.2(w), the consent chief credit officer or chief lending officer of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDCSBC), which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellexcept as consistent with past practice, grant any Rights, (iv) except for the issuance of any shares of Professional Common Stock due to the exercise of Professional Equity Awards prior to the Effective Time or as set forth in Section 4.2(b) of the Company Disclosure Letter, issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $100,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any Professional Stock Plan, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the Federal Reserve Board or any Regulatory Authority;
(n) make, change or revoke any tax election; adopt or change any tax accounting method; file any amended Tax Return; settle or compromise any Liability for Taxes; enter into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of applicable Law); surrender any right to claim a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, GAAPthat nothing in this Section 4.2(o) shall preclude Professional from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $250,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the SEC Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause Professional’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than $224.50 million (based on loan loss reserve of no less than 0.75%) at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $2.5 million that is unsecured, or $5.0 million that is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would materially interfere with, the consummation of the Merger;
(y) take any action, or refrain from taking any action, where such act or failure to act could reasonably be expected to (i) materially delay prevent either the Merger or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from From the date of this Agreement hereof until the earlier of the Effective Time Closing, Seller ------------ covenants and the date, if any, on which this Agreement is terminated pursuant agrees to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, ensure that neither GBDC 3 or GBDC shall, and neither shall permit Superior nor any of its Consolidated Subsidiaries to, directly or indirectly, does and Superior covenants and agrees that neither it nor any of its Subsidiaries will do (other then as contemplated in this Agreement) any of the following without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC)Purchaser, which prior written consent shall not be unreasonably delayed, conditioned or withheld:
(a) Other than pursuant to such party’s declare, set aside, make or pay any dividend reinvestment plan as or other distribution in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stockstock or otherwise purchase or redeem, (ii) any GBDC 3 Voting Debt directly or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution onindirectly, any shares of its capital stock;
(b) issue, except for (A) the authorizationsell or deliver or enter into any agreement to issue, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend sell or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, deliver any shares of its capital stock or any options, warrants, or other rights, warrants agreements, commitments, arrangements or options understandings of any kind, contingent or otherwise, to acquirepurchase, sell or deliver any such shares, or any securities convertible intointo or exchangeable for any such shares, such capital stock.
(c) Sellor effect any stock split, transfer, lease, mortgage, encumber or otherwise dispose of any of change its assets or propertiesauthorized capitalization, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.past practice;
(dc) Acquire incur any indebtedness or agree to acquire all issue or sell any portion of the assets, business debt securities or properties of prepay any other Person, whether by merger, consolidation, purchase or otherwise or make any other investmentsdebt, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.its past practice;
(ed) Amend the GBDC 3 Charter mortgage, pledge or the GBDC 3 Bylaws (in the case of GBDC 3) otherwise subject to any material lien or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of lease, any of its properties or assets, tangible or intangible or permit or suffer any such party’s Consolidated Subsidiaries.
(f) Implement property or adopt asset to be subjected to any material change in its Tax lien or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Personlease, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives its past practice and policies as publicly disclosed.for Permitted Exceptions;
(ke) File forgive or amend cancel any material Tax Return debts or claims, or waive any rights, except for fair value or in the ordinary course of business consistent with its past practice;
(f) except for loans and deposits in the ordinary course of business, enter into (i) any agreement, commitment or other transaction involving an expenditure, a liability or an obligation of Superior of more than $200,000 or, (ii) any other agreement or commitment that, pursuant to its terms, is not terminable by Superior without penalty at will or on less than 31 days' notice;
(g) except in the ordinary course of its business, pay any bonus to any Employee or grant to any Employee any increase in compensation;
(h) except as contemplated by this transaction or disclosed in any Schedule to this Agreement, enter into any severance agreement or salary continuation agreement with any Employee or, except in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; makepractice, change enter into any employment agreement;
(i) amend its Charter or revoke Bylaws or any other organizational documents;
(j) make any material Tax election; changes in policies or settle practices relating to selling practices or compromise other terms of sale or accounting therefor or in policies of employment;
(k) enter into any material Tax liability type of business not conducted by Superior as of the date of this Agreement or refund.create or organize any subsidiary of Superior or enter into or participate in any joint venture or partnership;
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation except as a RIC.
(m) Enter into any new line of business (it being understood that otherwise expressly contemplated by this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives Agreement and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3practice, enter into any new GBDC 3 Subscription Agreements.agreement or transactions with Seller or any affiliate of Seller or make any amendment or modification to any such agreement; or
(tm) Agree take any action or omit to take, make take any commitment action that is reasonably likely to takeresult in the occurrence of, or adopt any resolutions of the GBDC 3 Board agree or the GBDC Board, as applicable, authorizingcommit to do, any of the actions prohibited by this Section 6.2foregoing.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Superior Financial Corp /Ar/), Stock Purchase Agreement (Superior Financial Corp /Ar/)
Forbearances. During the period from the date of this Agreement until the earlier of through the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, set forth in its Disclosure Letter and except as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Party shall, and neither Party shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority Consent of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), other Party (which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other than pursuant to such party’s dividend reinvestment plan amend its Organizational Documents (except as provided herein);
(b) except for Permitted Issuances and Permitted Repurchases and except as provided in effect as of the date of this Agreement or (x) in the case of GBDC 3Section 4.3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) adjust, split, combine or reclassify any shares of its capital stock, (ii) make, declare or pay any GBDC 3 Voting Debt or GBDC Voting Debtdividend, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any other distribution on, any shares of its capital stockor directly or indirectly redeem, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem purchase or otherwise acquire, any shares of its capital stock or any rightssecurities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, warrants (iii) grant or options to acquireissue any Rights, (iv) issue any additional shares of capital stock, or securities convertible into, such capital stock.(v) make any change in any instrument or Contract governing the terms of any of its securities;
(c) Sellother than in the ordinary course of business or pursuant to Contracts in force at the date of or permitted by this Agreement and other than in satisfaction of debts previously contracted in good faith, make any material investment in or acquisition of (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) any other Person other than its wholly owned Subsidiaries;
(d) enter into any new line of business, or change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies that are material to it and its Subsidiaries, taken as a whole, except as required by applicable Law or any regulations or policies imposed on it by any Governmental Authority;
(e) sell, transfer, lease, mortgage, encumber or otherwise dispose of any part of its business or any of its properties or assets to any Person other than a wholly owned Subsidiary, or propertiescancel, release or assign any indebtedness to any Person other than a wholly owned Subsidiary or any claims against any Person other than a Subsidiary, except in the ordinary course of business or pursuant to Contracts in force as of the date of this Agreement and disclosed in Section 4.2(e) of its Disclosure Letter or as may be required in connection with complying with its respective obligations under Section 4.4;
(f) other than in the ordinary course of business: incur any indebtedness for borrowed money; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person; or make any loan or advance;
(g) other than in consultation with the other Party, restructure or make any material change to its investment securities portfolio, its derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, in any material respect;
(h) other than in the ordinary course of business, terminate or waive, or knowingly fail to use reasonable best efforts to enforce, any material provision of any Material Contract other than normal renewals of Contracts without materially adverse changes, additions or deletions of terms;
(i) salesother than as required by Compensation and Benefit Plans and Contracts as in effect at the date of this Agreement or applicable law, transfers(i) increase in any manner the compensation or fringe benefits of any of its officers, leases, mortgages, encumbrances employees or directors other dispositions than with respect to employees who are not directors or executive officers and then only in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practice, or (ii) encumbrances pay any pension or retirement allowance not required by any existing Compensation and Benefit Plan or Contract to secure Permitted Indebtedness of any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Compensation and Benefit Plan or Contract (or any of its Consolidated Subsidiaries.
(dindividual Contracts evidencing grants or awards thereunder) Acquire or agree to acquire all employment agreement with or any portion of for the assets, business or properties benefit of any officer, employee or director other Person, whether by merger, consolidation, purchase than with respect to employees who are not directors or otherwise or make any other investments, except in a transaction conducted executive officers and then only in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
past practice, or (eiv) Amend accelerate the GBDC 3 Charter vesting of, or the GBDC 3 Bylaws (lapsing of restrictions with respect to, Rights pursuant to Regions Stock Plans in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (Regions, and Rights pursuant to AmSouth Stock Plans in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.AmSouth;
(fj) Implement settle any Litigation, except for any Litigation involving solely money damages in an amount, individually or in the aggregate for all such settlements, that is not material to such Party and its Subsidiaries, taken as a whole, and that does not involve or create precedent for Litigation that is reasonably likely to be material to it and its Subsidiaries taken as a whole;
(k) implement or adopt any material change in its Tax or financial accounting principles, practices or methods, including reserving methodologies, other than as may be required by GAAP, regulatory accounting guidelines or applicable Law;
(l) file or amend any Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability; make, change or revoke any material Tax election; agree to an extension of the statute of limitations with respect to the assessment or collection of material Taxes; or make or surrender any claim for a material refund of Taxes;
(m) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied on a timely basis except as may be required by applicable Law; provided, GAAP, the SEC or applicable regulatory requirements.that nothing in this Section 4.2(m) shall preclude any Party from exercising its respective rights under Section 4.11;
(gn) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.or
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, take any of the actions prohibited to it by this Section 6.24.2.
Appears in 2 contracts
Sources: Merger Agreement (Amsouth Bancorporation), Merger Agreement (Regions Financial Corp)
Forbearances. During Without limiting the generality of Section 5.1 above, during the period from the date of this Agreement until to the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Closing Date, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 5.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Company Disclosure Schedule, or as applicableexpressly permitted by this Agreement or required by the Nebraska Department of Insurance or the California Department of Insurance (but without limiting the terms of Section 7.1(a)(v)), neither GBDC 3 Seller shall not permit the Companies or GBDC shall, and neither shall permit any of its Consolidated their Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheldBuyers:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grantincur any indebtedness for borrowed money, or encumber assume, guarantee, endorse or pledgeotherwise as an accommodation become responsible for the obligations of any other individual, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, corporation or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.entity;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combinesubdivide, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock;
(ii) make, declare or pay any dividend (whether in cash, stock or (iii) purchaseother securities or property), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, directly or indirectly any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets Subsidiaries or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party Seller or any of its Consolidated Affiliates or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its or their capital stock (except dividends paid by any of the Subsidiaries of such Company to such Company or to any of its wholly-owned Subsidiaries.);
(diii) Acquire or agree to acquire all or grant any portion of stock options, stock appreciation rights, restricted shares, restricted stock units, deferred equity units, awards based on the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any value of such partyCompany’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax Subsidiary’s capital stock or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) drawequity-downs based award with respect to shares of such Company’s or Subsidiary’s capital stock, or grant any Previously Disclosed financing arrangements existing as individual, corporation or other entity any right to acquire any shares of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.its capital stock; or
(jiv) Make or agree to make issue any new additional shares of capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement stock or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.securities;
Appears in 2 contracts
Sources: Stock Purchase Agreement (Landamerica Financial Group Inc), Stock Purchase Agreement (Fidelity National Financial, Inc.)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time The Company and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither its Subsidiaries shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC)CBRL, which prior written consent shall not be unreasonably delayed, conditioned or withheld:
(ai) Other incur any debt, liability or obligation, direct or indirect, whether accrued, absolute, contingent or otherwise, other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) current liabilities incurred in the case ordinary and usual course of GBDC 3business, pursuant or pay any debt, liability or obligation of any kind other than such current liabilities and current maturities of existing long-term debt;
(ii) assume, guarantee, endorse or otherwise become responsible for the obligations of any other individual, firm or corporation, or make any loans or advances to any individual, firm or corporation, except in the ordinary and usual course of business;
(iii) declare, set aside or pay any dividend (whether in cash, capital calls stock or property) with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stockor redeem, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem purchase or otherwise acquire, any shares of Common Stock, or split, combine or otherwise similarly change the outstanding shares of Common Stock, or authorize the creation or issuance of or issue or sell any shares of its capital stock or any rights, warrants securities or options to acquireobligations convertible into or exchangeable for, or securities convertible intogiving any person any right to acquire from it, such any shares of its capital stock., or agree to take any such action, except that the Company may issue shares of Common Stock upon the exercise of options granted pursuant to its Stock Option Plans prior to the date hereof;
(civ) Sellmortgage, transferpledge or otherwise encumber any material property or asset;
(v) except as set forth on Schedule 7.1(b)(v), sell, lease, mortgage, encumber transfer or otherwise dispose of any of its assets properties or propertiesassets, waive or release any rights of material value, or cancel, compromise, release or assign any indebtedness owed to it or any claims held by it, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary and usual course of business consistent with such party’s business;
(vi) make any investment objectives and policies as publicly disclosedof a capital nature either by purchase of stock or securities, contributions to capital, property transfers or otherwise, or by the purchase of any property or assets of any other individual, firm or corporation, except in the ordinary and usual course of business;
(iivii) encumbrances required to secure Permitted Indebtedness of such party enter into or terminate any contract, agreement, plan or lease, or make any change in any of its Consolidated Subsidiaries.
(d) Acquire contracts, agreements, plans or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return leases other than in the ordinary and usual course of business;
(viii) except for in the ordinary and usual course of business or in accordance with the Company's 1998 Executive Bonus Plan, increase in any manner the compensation or fringe benefits of any of its officers or employees or pay or agree to pay any pension or retirement allowance not required by any existing plan or agreement to any officer or employee other than consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any actionpractice, or knowingly fail commit itself to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with employment agreement or any Personincentive compensation, or adoptdeferred compensation, recommendprofit sharing, propose or announce an intention to adopt a plan of complete or partial liquidationstock option, dissolutionstock purchase, restructuringsavings, recapitalization consultant, retirement, pension or other reorganization "fringe benefit" plan or arrangement with or for the benefit of such party any officer, employee or other person;
(ix) permit any material insurance policy naming it as a beneficiary or a loss payable payee to be canceled or terminated or any of its Consolidated Subsidiaries.the coverage thereunder to lapse, unless simultaneously with such termination or cancellation replacement policies providing substantially the same coverage (without any gap in coverage) are in full force and effect;
(sx) With respect to GBDC 3, amend the Company Charter or the Company Bylaws or the organizational documents of any of its Subsidiaries;
(xi) enter into any new GBDC 3 Subscription Agreements.collective bargaining agreement with a labor organization; or
(txii) Agree enter into an agreement to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, do any of the actions prohibited by this Section 6.2things described in clauses (i) through (xi). Notwithstanding the foregoing, for purposes of subsections (b) (i),(v),(vi) and (vii), prior written consent of CBRL is not required for material contracts of less that $25,000.
Appears in 2 contracts
Sources: Merger Agreement (CBRL Group Inc), Merger Agreement (Logans Roadhouse Inc)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC Business Bank nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDCchief financial officer of SBC (or, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDCwith respect to Section 4.2(u) or 4.2(w), the chief credit officer or chief lending officer of SBC) (which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) Except as set forth in Section 4.2(b) of the Company Disclosure Letter (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock except pursuant to the exercise of Business Bank Equity Awards outstanding as of the date of this Agreement, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practice) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practice: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as set forth in Section 4.2(k) of the Company Disclosure Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, (iv) make any changes to a Benefit Plan that are not required by Law or (v) hire or terminate the GBDC Bylaws employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Tax Liability; or make, change or revoke any Tax election or change any method of Tax accounting, except as required by applicable Law; enter into any “closing agreement” as described in Section 7121 of the Internal Revenue Code (or any similar provision of state, GAAPlocal or foreign Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the SEC conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude Business Bank from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practice from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) except in the ordinary course of business consistent with past practice, make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause Business Bank’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than the Business Bank Target Consolidated Tangible Shareholders’ Equity at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to or made available to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $250,000 and which is unsecured, or $1.0 million and which is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would reasonably be expected to materially interfere with, the consummation of the Merger;
(iy) materially delay knowingly take any action that would prevent or materially impede the ability of Merger and the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC Sabal Palm nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer, chief credit officer or GBDC, as applicable chief lending officer of SBC (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably withheld or delayed) provided, conditioned however, that with respect to Section 4.2(i), Section 4.2(s), and Section 4.2(w), if Seacoast shall not have disapproved of Sabal Palm’s or withheldthe Bank’s written request in writing within five (5) Business Days of receipt of such written request from Sabal Palm or the Bank, then such request shall be deemed to be approved by Seacoast:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) Except as set forth in Section 4.2(b) of the Company Disclosure Letter (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock except pursuant to the exercise of Sabal Palm Equity Awards outstanding as of the date of this Agreement, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as set forth in Section 4.2(k) of the Company Disclosure Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any Sabal Palm Stock Plan, except pursuant to Section 1.7, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Liability for Taxes; or make, change or revoke any tax election or change any method of tax accounting, except as required by applicable Law; enter into any “closing agreement” as described in Section 7121 of the Internal Revenue Code (or any similar provision of applicable Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, GAAPor knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude Sabal Palm from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the SEC Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause Sabal Palm’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than $30.3 million at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $250,000 and which is unsecured, or $1.0 million and which is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would reasonably be expected to materially interfere with, the consummation of the Merger;
(iy) materially delay knowingly take any action that would prevent or materially impede the ability of Merger and the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 2 contracts
Sources: Merger Agreement (Seacoast Banking Corp of Florida), Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither email shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheldParent:
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case ordinary course of GBDC 3business, pursuant to capital calls with respect to incur any indebtedness for borrowed money or any indebtedness that constitutes the GBDC 3 Subscription Agreements and (y) in deferred purchase price of any property or assets, assume, guarantee, endorse or otherwise as an accommodation become responsible for the case obligations of GBDCany other individual, Permitted Issuances, issue, deliver, sell corporation or grantother entity, or encumber make any loan or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.advance;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combinecombine or reclassify any capital stock;
(c) make, reclassify declare or take similar action with respect to pay any of its capital stock dividend (whether in cash or issue property), or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.;
(cd) Sellgrant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock;
(e) issue any additional shares of capital stock;
(f) sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its material properties or assets (including, without limitation, cash) to any individual, corporation or propertiesother entity, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s or pursuant to contracts or agreements in force at the date of this Agreement;
(g) except pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any investment objectives and policies as publicly disclosedin, either by purchase of stock or securities, contributions to capital, property transfers, or (ii) encumbrances required to secure Permitted Indebtedness purchase of such party any property or assets, any of its Consolidated Subsidiaries.other individual, corporation or other entity;
(dh) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted for transactions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend business, terminate, or waive any material provision of, any contract, or make any change in any instrument or agreement governing the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents terms of any of such party’s Consolidated Subsidiaries.its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of terms;
(fi) Implement increase in any manner the compensation or fringe benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business, or accelerate the vesting of, or the lapsing of restrictions with respect to, any stock options or other stock-based compensation;
(j) solicit or encourage from any third party or enter into any negotiations, discussions or agreement in respect of, or authorize any individual, corporation or other entity to solicit or encourage from any third party or enter into any negotiations, discussions or agreement in respect of, or provide or cause to be provided any confidential information in connection with, any inquiries or proposals relating to the conveyance, sale, lease, transfer or other disposition of all or a substantial portion of its business, property or assets, or the acquisition of its capital stock or securities convertible into capital stock, or the merger or consolidation, whether in one transaction or a series of transactions, of it with any corporation or other entity, other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of these matters);
(k) settle any material claim, action or proceeding involving money damages, except in the ordinary course of business;
(l) make any material capital expenditures, make any material changes in its current method of conducting business, or liquidate, dissolve or suffer any liquidation or dissolution;
(m) make any material payment of principal of any debt, with a maturity of more than one year, for borrowed money or for the deferred purchase price of property or services except at the stated maturity of the debt or as required by mandatory prepayment provisions relating thereto (subject to any subordination provisions applicable thereto);
(n) enter into any material agreement or become liable under any material agreement for the lease, hire or use of any real or personal property, or enter into any material sale/leaseback arrangement with respect to any real or personal property which now owned or hereafter acquired;
(o) incur or make any optional prepayment of, or purchase, redeem or otherwise acquire, or amend any provision pertaining to the subordination, or the terms of payment of, any subordinated debt;
(p) create, incur, assume or suffer to exist any lien or encumbrance of any kind upon any of its properties, assets, income or profits, whether borrowed or hereafter acquired;
(q) knowingly take any action that would prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368 of the Code;
(r) amend its articles of incorporation or its by-laws;
(s) take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(t) implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as may be required by applicable Law, GAAP, the SEC general accepted accounting principles or applicable regulatory requirements.guidelines; or
(gu) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizingits board of directors in support of, any of the actions prohibited by this Section 6.27.2.
Appears in 1 contract
Sources: Merger Agreement (Realm Productions & Entertainment Inc)
Forbearances. During Except as contemplated by this Agreement or as set forth on Schedule 5.2, the period Company will not, and will cause its Subsidiaries not to, from the date of this Agreement hereof until the earlier of (i) the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly(ii) termination under Article VIII, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheldInvestor:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stocksell, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.
(c) Sell, transfer, lease, mortgage, encumber lease or otherwise dispose of any of its assets or propertiesassets, including Intellectual Property, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or past practice;
(ii) encumbrances required to secure Permitted Indebtedness of such party or incur any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion indebtedness for borrowed money except under credit facilities existing as of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted date hereof in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.past practice;
(eiii) Amend the GBDC 3 Charter mortgage, pledge or the GBDC 3 Bylaws (in the case of GBDC 3) otherwise encumber, or the GBDC Charter permit to exist any new security interest, lien or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of encumbrance on, any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, assets except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.past practice;
(kiv) File enter into, amend, modify or amend cancel any Material Contract or Lease except in the ordinary course of business consistent with past practice;
(v) make any material Tax Return investment in, purchase any material securities of, or merge with, any Person or, except for purchases of inventory and other assets in the ordinary course of business consistent with past practice, purchase any material assets;
(vi) assume, guarantee, endorse or otherwise become responsible for the obligations of any Person (other than the Company or a Subsidiary), or make loans or advances to any Person except in the ordinary course of business consistent with past practice;
(vii) increase in any manner the compensation of any of (a) the employees of the Company or the Subsidiaries or the directors or officers of the Subsidiaries other than ASCI, other than increases in compensation in the ordinary course of business consistent with past practice or (b) the directors and such party’s investment objectives and policies as publicly disclosed; make, change officers of the Company or revoke any material Tax election; or settle or compromise any material Tax liability or refund.ASCI;
(lviii) Take pay or agree to pay any actionpension or retirement allowance not required by an existing plan or agreement to any director, officer or employee, whether past or present, of the Company or its Subsidiaries, or knowingly fail enter into or amend (except to take terminate) any actionemployment agreement or any incentive compensation, which action profit sharing, stock purchase, stock option, stock appreciation rights, savings, consulting, deferred compensation, severance, retirement, pension or failure to act is reasonably likely to cause such party to fail to qualify other benefit plan or not be subject to taxation as a RIC.
(m) Enter into any new line arrangement with or for the benefit of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made directors, officers, employees or will make a debt of any other person except as may be required by applicable law or equity investment that is regulation;
(ix) except (A) as set forth in the capital expenditure budget provided to Investor and (B) for purchase orders for inventory arising in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedbusiness, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract contract which will require an expenditure after the Effective Time of more than $2,000,000 by the Company or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.Subsidiaries;
(ox) Other declare, set aside or pay any dividend in cash or property, repurchase or otherwise make any distribution, with respect to its capital stock other than in dividends payable on the ordinary course Preferred Shares;
(xi) split, combine or otherwise similarly change its capital stock, or redeem any of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew its capital stock;
(xii) authorize the creation or agree to any material amendment issuance of, change in or waiver under issue or sell, any GBDC 3 Material Contract shares of its or GBDC Material Contractits Subsidiaries' capital stock or any securities or obligations convertible into or exchangeable for, as applicable.or giving any person any right to acquire from it, any shares of its or its Subsidiaries' capital stock;
(pxiii) Settle enter into any Proceeding against itjoint venture, partnership or other similar arrangement;
(xiv) enter into any agreement which restricts in any way its ability to compete with any other Person;
(xv) amend its Articles of Incorporation or By-laws, except for Proceedings that as contemplated by Section 2.4 and to increase the number of authorized Common Shares to effect the stock split referred to in Section 5.18;
(ixvi) are settled cancel or compromise, except compromises of current or former short- term trade receivables or other current assets in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosedpractice, in an amount not in excess of $250,000 in the aggregate any indebtedness owed to it;
(after reduction by any insurance proceeds actually received); (iixvii) would not impose settle any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries litigation or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than except in the ordinary course of business consistent with past practice, waive or relinquish any material right or benefit, or write-off any material asset except as required by generally accepted accounting principles;
(xviii) cancel or allow any of its existing insurance policies to lapse;
(xix) alter in any way the manner in which it has regularly and customarily maintained its books of account and records, or change any of its accounting principles or the methods by which such party’s investment objectives principles are applied for tax or reporting purposes, except as required by law or by generally accepted accounting principles;
(xx) change or commit to change the business of the Company and policies as publicly disclosedits Subsidiaries from the Business or add new businesses, or change or commit to change materially the manner in which the Business is currently conducted;
(ixxi) payexcept for items in the categories set forth in Schedule 5.2, discharge make any payment or satisfy distribution to, or loan or advance funds or extend credit to, sell any Indebtedness for borrowed moneyasset to or purchase any asset from, or assign or convey any right to, an Affiliated Person, other than payments made under leases at stores or other facilities owned by Affiliated Persons in the paymentordinary course of business consistent with past practice, discharge or satisfaction required and pursuant to the terms of outstanding debt such leases as currently in effect; or (xxii) agree of such party or its Consolidated Subsidiaries as in effect as commit to do any of the date of this Agreement or other Permitted Indebtedness or things described in clauses (iii) cancel any material indebtedness.
through (rxxi) above. Except as otherwise expressly contemplated by this Agreement, merge no Shareholder shall sell, transfer, convey, assign, mortgage, pledge, or consolidate such party hypothecate any Common Share or any of its Consolidated Subsidiaries with any Person Preferred Share, or enter into any other similar extraordinary corporate transaction with any Person, agreement or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of do the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2same.
Appears in 1 contract
Sources: Merger Agreement (Laralev Inc)
Forbearances. (i) During the period from the date of this Agreement until through the earlier of the Chilean Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 4.2(i) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2, none of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Bank Parties shall, and neither none of the Bank Parties shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority Consent of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), other Bank Parties (which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other amend its Organizational Documents or enter into a plan of consolidation, merger, share exchange, reorganization or similar business combination (other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (yconsolidations, mergers, share exchanges, reorganizations or similar business combinations solely among its wholly-owned Subsidiaries) or a letter of intent or agreement in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.principle with respect thereto;
(b) except as provided in Section 4.3 (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for for, shares of its capital stock stock, (ii) set a record date or payment date for, make, declare or pay any dividend (iiiother than dividends paid in the ordinary course of business by any of its direct or indirect wholly-owned Subsidiaries to it or any of its other direct or indirect wholly-owned Subsidiaries) purchaseor dividends expressly permitted pursuant to Section 4.3), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exercisable or exchangeable for any shares of its capital stock., (iii) grant or issue any Rights, (iv) issue, sell or otherwise permit to become outstanding any additional shares of capital stock, (v) make any change in any instrument or Contract governing the terms of any of its securities (other than for the purposes of effecting the Transactions) or (v) enter into any Contract with respect to the sale or voting of its capital stock;
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice or pursuant to Contracts in force at the date of this Agreement, and such party’s investment objectives and policies as publicly disclosed; makeother than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, change or revoke make any material Tax election; investment in or settle acquisition of (either by purchase of stock or compromise securities, contributions to capital, property transfers or purchase of any material Tax liability property or refund.assets) any other Person other than its wholly- owned Subsidiaries as of the date of this Agreement;
(ld) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(mi) Enter enter into any new line of business which is not within the Banking Business, (ii) change its lending, investment, underwriting, securitization, servicing, risk and asset liability management and other banking and operating, policies that are material to it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party and its Subsidiaries, taken as a whole, except as required by applicable Law or any regulations or policies imposed on it by any Governmental Authority or (iii) make application for the opening, relocation or closing of its Consolidated Subsidiaries has made any, or will make a debt open, relocate or equity investment that is close any, branch office, loan production office or other significant office or operations facility, other than branches in the jurisdiction of incorporation of each Bank Party in the ordinary course of business and consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past practice;
(ne) Other sell, transfer, mortgage, encumber or otherwise dispose of any part of its business or any of its properties or assets to any Person other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract wholly-owned Subsidiary or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness of any Person to any material amendment of, change in Person other than a wholly-owned Subsidiary or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle claims against any Proceeding against itPerson to any Person other than a wholly-owned Subsidiary, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice or pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed, disclosed in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (iiSection 4.2(i)(e) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.Disclosure Letter;
(qf) Other other than in the ordinary course of business consistent with past practice: incur any indebtedness for borrowed money (or modify any of the material terms of any such party’s outstanding indebtedness) other than indebtedness of it or any of its wholly-owned Subsidiaries to it or any of its wholly-owned subsidiaries; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person which is not one of its wholly-owned subsidiaries; or make any loan or advance to any Person which is not one of its wholly-owned subsidiaries;
(g) restructure or make any material change to its investment objectives and policies securities portfolio, its derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(h) other than in the ordinary course of business, terminate, amend, waive or knowingly fail to use reasonable best efforts to enforce, any material provision of any material Contract, other than normal renewals of Contracts without materially adverse changes, additions or deletions of terms; or enter into any Contract that would be required to be disclosed under Section 3.1(k)(B), (D), (E), (G) or (H), or Section 3.2(k)(B), (D), (E), (G) or (H), as publicly disclosedthe case may be, if it were in effect on the date hereof;
(i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction as required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries by Compensation and Benefit Plans and Contracts as in effect as of at the date of this Agreement or applicable Law, (i) increase by more than 20% the aggregate compensation or benefits of any of its current or former officers, directors, employees with annual base compensation in excess of U.S.$350,000 or consultants (for avoidance of doubt, all references to “directors” in this Section 4.2(i)(i) refer to members of its Board of Directors) other Permitted Indebtedness or than in the ordinary course of business consistent with past practice, (ii) cancel become a party to, adopt, terminate, materially amend or commit itself to any material indebtednessCompensation and Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment, severance, change in control, retention, bonus guarantee, collective bargaining or similar agreement or arrangement with or for the benefit of any current or former officer, director, employee with annual base compensation in excess of $350,000 or consultant or (iii) pay or award, or commit to pay or award, any bonuses (other than bonuses in respect of which a provision has been made and contemplated in any of the Bank Parties’ yearly or quarterly financial statements prior to the date hereof) or incentive compensation or (iv) grant or accelerate the vesting of any equity-based awards.
(rj) Except settle any Litigation, except for any Litigation involving solely money damages in an amount not greater than $1,000,000 individually, and that does not involve or create an adverse precedent for Litigation that is reasonably likely to be material to it and its Subsidiaries taken as a whole; or agree or consent to the issuance of any Order restricting, or otherwise expressly contemplated affecting in any material respect, its business or operations;
(k) implement or adopt any change in its financial accounting principles, practices or methods, including reserving methodologies, other than as may be required by this AgreementIFRS or Colombian GAAP, merge as applicable, regulatory accounting guidelines (including those passed by the Chilean Superintendency of Banks) or consolidate such party applicable Law, and as concurred to by its independent auditors;
(l) file or amend any material Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability in an amount greater than $2,000,000; make, change or revoke any material Tax election except to the extent consistent with past practice or as required by Law; agree to any extension or waiver of the statute of limitations with respect to assessment or determination of material Taxes, surrender any right to claim a material Tax refund; or change any material method of Tax accounting;
(m) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personthe conditions to the Transactions, or adoptincluding the Chilean Merger and the Colombian Merger, recommendset forth in Article 5 not being satisfied on a timely basis except, propose or announce an intention to in each case, as may be required by applicable Law;
(n) adopt a plan of complete or partial liquidation, liquidation or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.reorganization; or
(so) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment agree to take, or adopt any resolutions of the GBDC 3 its Board of Directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited to it by this Section 6.24.2(i).
(ii) During the period from the date of this Agreement through the Colombian Acquisition Closing or the Colombian Effective Time, as the case may be, except as set forth in Section 4.2(ii) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2(ii), Itaú Colombia shall not, and shall not permit any of its Subsidiaries, and Itaú Parent shall not permit Itaú Colombia or any of the Subsidiaries of Itaú Colombia to, without the prior written Consent of the Corp Group Parties (which Consent shall not be unreasonably withheld or delayed), take any of the actions that would require the consent of Corp Group Parent under Section 2.8 of the Shareholders Agreement.
(iii) Corp Group Parent and Itaú Parent agree that, for the purposes of this Section 4.2, any Subsidiary of any of the Bank Parties in which capital any of the Bank Parties or Bank Parties’ Affiliates or their officers or directors has a participation not lower than 95% shall be considered a wholly owned Subsidiary of such Bank Party.
Appears in 1 contract
Sources: Transaction Agreement
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule4.2, as applicable, neither GBDC 3 or GBDC shall, and neither Raindance shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent Consent of GBDC 3 or GBDC, as applicable West (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of amend its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, Organizational Documents or any other Rights to acquire, any such shares indemnity agreements with its directors or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend, or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rightssecurities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, warrants or options to acquire(iii) grant any Rights, (iv) except for Permitted Issuances, issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or securities convertible intoauthorize the issuance, such sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock., or (v) make any change in any instrument or Contract governing the terms of any of its securities;
(c) Sellother than short-term investments in the ordinary course of business in connection with its treasury or cash management function or pursuant to Contracts in force at the date of or permitted by this Agreement, make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(d) enter into any new line of business, or materially change its operating policies that are material to it, except as required by applicable Law;
(e) sell, transfer, lease, mortgage, encumber or otherwise dispose of any material part of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire material properties or assets to any Person, or otherwise create or incur any material Lien on its assets, or cancel, release or assign any indebtedness of any Person or any claims against any Person or transfer, agree to transfer or grant of, or agree to acquire all or grant a license to, any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investmentsits material Intellectual Property, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay the sale, transfer or materially impede the ability other disposition of the parties to consummate the Transactions obsolete, worn-out or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than unneeded equipment in the ordinary course of business consistent with past practice or the grant of non-exclusive out-licenses in connection with ordinary revenue transactions, (ii) as security for any indebtedness permitted by Section 4.2(f), or (ii) pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed; make, change or revoke disclosed in Section 4.2(e) of its Disclosure Letter;
(f) incur any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail amount of indebtedness for borrowed money other than short-term indebtedness incurred to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business refinance short-term indebtedness (it being understood that for purposes of this prohibition does not apply Section 4.2(f), “short-term” shall mean maturities of six months or less) and other than borrowings pursuant to existing credit facilities or pursuant to any new modifications, renewals or existing portfolio companies in which replacements of such party credit facilities so long as the maximum aggregate permitted borrowings for such modifications, renewals or replacements are not increased and do not increase or create any prepayment penalties or premiums, and other than with respect to normal course expense reimbursement commitments to officers, directors and employees; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of its Consolidated Subsidiaries has made any Person; make any loan, capital contribution or will make a debt or equity investment that is advance to any Person (other than travel, business expense and similar advances to employees in the ordinary course of business consistent with past practice); or grant credit to any customer, distributor or supplier of it or any of its Subsidiaries on terms or in amounts materially more favorable than had been extended to any such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected Person in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past;
(ng) Other than amend (except in the ordinary course a manner favorable to Raindance), terminate or waive any material provision of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would is filed as an exhibit to its SEC Reports or that is listed in Section 3.3(l) of its Disclosure Letter or that is otherwise constitute material to its business, other than (x) in connection with normal renewals of Contracts without materially adverse changes of terms, (y) in connection with the scheduled expiration of a GBDC 3 Material Contract Contract’s term or GBDC Material Contract(z) with respect to Contracts with customers, as applicable, had it been entered into prior to the date any amendments or waivers of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled payment provisions in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not to exceed $5,000 in excess of any one case or $250,000 25,000 in the aggregate during any 30 day period;
(after reduction h) other than as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as disclosed in Section 4.2(h) of its Disclosure Letter, (i) increase in any insurance proceeds actually received); manner the compensation or fringe benefits of any of its officers, employees or directors, (ii) would pay any pension or retirement allowance not impose required by any material restriction on the conduct of business of it existing Benefit Plan or Contract to any of its Consolidated Subsidiaries orsuch officers, after the Effective Timeemployees or directors, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement with or for the benefit of any officer, employee or director, other than: (A) standard offer letters in connection with hiring at-will employees not admit liability, guilt or fault.
otherwise prohibited by Section 4.2(i); and (qB) Other than Contracts in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practice under existing Benefit Plans to the extent not otherwise prohibited by this Section 4.2, or (iv) accelerate the vesting of, or the lapsing of restrictions with respect to, Rights pursuant to any Raindance Stock Plan;
(i) pay, discharge or satisfy hire any Indebtedness for borrowed money, employee (i) other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness on an at-will basis or (ii) cancel with annual compensation (including base salary and bonus opportunity) of $200,000 or more;
(j) settle or compromise any material indebtedness.
Litigation, other than (rx) Except as otherwise expressly contemplated by in connection with enforcing its rights under this Agreement, merge or consolidate such party (y) for the routine collection of bills in the ordinary course of business consistent with past practice;
(k) revalue any of its or any of its Consolidated Subsidiaries with Subsidiaries’ assets or change any Person method of accounting or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party accounting practice used by it or any of its Consolidated Subsidiaries (including changes with respect to extending trade receivables or making any changes to its or its Subsidiaries.’ receivables write-off policies or changing its or its Subsidiaries’ payables cycle policies), other than changes required by GAAP and other than changes which would not have a material impact on Raindance or its Subsidiaries;
(sl) With respect file or amend any Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability; or make, change or revoke any material Tax election or change any method of Tax accounting, except as required by applicable Law;
(m) merge or consolidate it or any of its Subsidiaries with any other Person, except for any such transactions among its wholly owned Subsidiaries that are not obligors or guarantors of third party indebtedness;
(n) acquire assets or spend or commit to GBDC 3, spend amounts on capital expenditures in exceess of the amounts set forth in Section 4.2(n) of the Disclosure Letter;
(p) enter into any new GBDC 3 Subscription Agreements.Contract that would be required to be listed in Section 3.3(l)(i) of the Disclosure Letter if entered into prior to the date hereof; or
(tq) Agree agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, take any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the dateTime, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shallCSB shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, in each case without the prior written consent of GBDC 3 or GBDC, as applicable First Charter (and CSB shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheld:date hereof):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case ordinary course of GBDC 3business consistent with past practice, pursuant incur any indebtedness or other obligation for borrowed money (other than short-term indebtedness incurred to capital calls with respect to the GBDC 3 Subscription Agreements refinance short-term indebtedness, it being understood and (y) agreed that incurrence of indebtedness in the case ordinary course of GBDCbusiness shall include, Permitted Issuanceswithout limitation, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any shares of its capital stockother individual, (ii) any GBDC 3 Voting Debt corporation or GBDC Voting Debt, as applicableother entity, or make any loan or advance other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.than in the ordinary course of business consistent with past practice;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify any capital stock or take similar action otherwise make any change with respect to its authorized capital stock; make, declare or pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in distribution with respect ofto, in lieu of or in substitution for shares of its capital stock directly or (iii) indirectly redeem, purchase, redeem exchange or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquireobligations convertible into or exchangeable for any shares of its capital stock, or securities convertible intogrant any stock appreciation rights or grant any individual, such corporation or other entity any right to acquire any shares of its capital stock or any right to acquire cash based on the market value of CSB Common Stock; or issue any additional shares of capital stock., or any securities or obligations convertible into or exchangeable for any shares of its capital stock, except for the issuance of CSB Common Stock pursuant to the exercise of CSB Options outstanding as of the date hereof or pursuant to the Stock Option Agreement;
(c) Sellsell, transfer, lease, mortgage, encumber or otherwise dispose of any of its properties or assets or propertiesto any individual, except for (i) sales, transfers, leases, mortgages, encumbrances corporation or other dispositions in the ordinary course entity (including without limitation any shares of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness capital stock of such party or any of its Consolidated Subsidiaries.), or cancel, release or assign any indebtedness to any such person or any claims held by any such person;
(d) Acquire except for purchases of U.S. Treasury securities which have maturities of three years or agree less, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of, or otherwise acquire all direct or any portion of the assets, business or properties of indirect control over any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.;
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until to the earlier of the Effective Time and or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by termination of this Agreement, as Previously Disclosed or and except as set forth in Section 6.2 7.2 of the GBDC 3 Company Disclosure Schedule or Section 6.2 of Memorandum, the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shallCompany shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC)Sterling, which prior written consent shall not be unreasonably delayed, conditioned or withheld:withheld (and the Company shall provide Sterling with prompt notice of any events referred to in this Section 7.2 occurring after the date hereof):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness indebtedness of such party the Company or any of its Consolidated Subsidiaries.
(d) Acquire or agree Subsidiaries to acquire all the Company or any portion of the assets, business or properties its Subsidiaries; it being understood and agreed that incurrence of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted indebtedness in the ordinary course of business consistent with such party’s investment objectives shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, and policies sales of certificates of deposit), assume, guarantee, endorse or otherwise as publicly disclosed.
(e) Amend an accommodation become responsible for the GBDC 3 Charter or the GBDC 3 Bylaws (in the case obligations of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that wouldPerson, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies loan or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return advance other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosedprudent banking practices;
(b) adjust, split, combine or reclassify any capital stock; make, change declare or revoke pay any material Tax electiondividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, other than distributions from the Bank to the Company, grant any stock options or stock awards, or grant any Person any right to acquire any shares of its capital stock; or settle issue any additional shares of capital stock (except as permitted by Section 3.3(c) or compromise upon exercise and conversion of Company Options, as provided in Section 3.4 and Section 8.6), or any material Tax liability securities or refund.obligations convertible into or exchangeable for any shares of its capital stock;
(lc) Take any actionsell, transfer, mortgage, encumber or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line otherwise dispose of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made properties or will make a debt assets to any Person, or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness to such Person or any material amendment of, change in or waiver under claims held by any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against itsuch Person, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s prudent banking practices or pursuant to contracts or agreements in force at the date of this Agreement;
(d) make any material investment objectives and policies as publicly disclosed(other than trades in investment securities in the ordinary course) either by purchase of stock or securities, in an amount not contributions to capital, property transfers, or purchase of any property or assets of any other Person;
(e) enter into, terminate or fail to exercise any material right under, any contract or agreement involving annual payments in excess of $250,000 15,000 and which cannot be terminated without penalty upon 30 days’ notice, or make any change in, or extension of (other than automatic extensions) any of its leases or contracts involving annual payments in excess of $10,000 and which cannot be terminated without penalty upon 30 days’ notice;
(f) make, renegotiate, renew, increase, extend or purchase any (i) loan, lease (credit equivalent), advance, credit enhancement or other extension of credit, except (A) in conformity with existing lending practices of the aggregate Company in amounts not to exceed $1,000,000 to any individual borrower, (after reduction B) loans or advances as to which the Company or any Subsidiary has a legally binding obligation to make such loan or advances as of the date hereof, (C) loans fully secured by a certificate of deposit at the Bank, and (D) consumer loans in amounts less than $100,000; provided, however, that the Company and its Subsidiaries may not make, renegotiate, renew, increase, extend or purchase any insurance proceeds actually received); loan that is underwritten based on no verification of income or loans commonly known or referred to as “no documentation loans,” or (ii) would not impose any material restriction on loans, advances or commitments to directors, officers or other affiliated parties of the conduct of business of it Company or any of its Consolidated Subsidiaries orsubsidiaries;
(g) except as required by law, after modify the Effective Time, GBDC, GBDC 3, terms of any Company Benefit Plan (including any severance pay plan) or increase or modify in any manner the Surviving Company compensation or fringe benefits of any of their respective Consolidated Subsidiaries its Employees (including, without limitation, entering into any commitment to pay any “stay bonuses” or similar benefits not permitted by this Agreement) or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee other than routine adjustments in compensation and (iii) would not admit liability, guilt or fault.
(q) Other than fringe benefits in the ordinary course of business consistent with such partypast practice or accelerate the vesting of any stock options or other stock-based compensation, provided, that the Company may pay in December 2006 bonuses accrued in accordance with the Company’s investment objectives and policies as publicly disclosedhistorical practices;
(h) settle any claim, action or proceeding involving the payment of money damages in excess of $10,000;
(i) payamend its Articles of Incorporation or its bylaws;
(j) fail to maintain its Regulatory Agreements, discharge material Authorizations or satisfy to file in a timely fashion all federal, state, local and foreign Tax Returns;
(k) make any Indebtedness for borrowed money, other capital expenditures of more than $15,000 individually or $50,000 in the payment, discharge aggregate;
(l) fail to maintain or satisfaction administer each Company Benefit Plan in accordance with applicable Law or timely make all contributions or accruals required pursuant thereunder in accordance with GAAP;
(m) 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 at any time prior to the terms of outstanding debt of such party Effective Time, or its Consolidated Subsidiaries as in effect as any of the date conditions to the Merger set forth in Article X not being satisfied or in a violation of any provision of this Agreement Agreement, except, in every case, as may be required by applicable law;
(n) change any methods or policies of accounting from those used in the Company Financial Statements, except as may be required by GAAP or any Regulatory Authority;
(o) take or cause or permit to be taken any action, whether before or after the Effective Time, which would disqualify the Merger as a tax-free reorganization within the meaning of Section 368 of the Code (subject to required recognition of gain or loss with respect to cash paid for fractional shares pursuant hereto);
(p) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other Permitted Indebtedness action would have the effect of increasing the Tax liability of the Company or any of its Subsidiaries for any period ending after the Closing Date or decreasing any Tax attribute of the Company or any of its Subsidiaries existing on the Closing Date;
(iiq) cancel make any material indebtedness.changes to its securities portfolio, the weighted averages of its certificate of deposit portfolio, or materially deviate from its policies and practices regarding the establishment of its allowance for credit losses; or
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personagree, or adoptmake any commitment, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, in writing or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizingotherwise, any of the actions prohibited by described in clauses (a) through (q) of this Section 6.27.2.
Appears in 1 contract
Forbearances. During Except as expressly contemplated or permitted by this Plan, or as required by applicable law, rule or regulation, during the period from the date of this Agreement until the earlier of Plan to the Effective Time and the dateTime, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shallSterling shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheld▇▇▇▇▇-▇▇▇▇▇:
(aA) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case Ordinary Course of GBDC 3Business, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDCmake any advance or loan or incur any indebtedness for borrowed money, Permitted Issuancesassume, issueguarantee, deliver, sell endorse or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, otherwise as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable an accommodation become responsible for, or the obligations of any other Rights to acquire, any such shares or other securities.Person;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combinecombine or reclassify any capital stock; make, reclassify declare or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible into or securities convertible into, such exchangeable for any shares of its capital stock.; grant any stock appreciation rights; grant any Person any Rights or modify any existing Rights, provided, however, that 7,500 Sterling Stock Options held by Messrs. ▇▇▇▇ and ▇▇▇▇▇▇▇ scheduled to expire on December 13, 1998, may be extended to June 1999; or issue any additional shares of capital stock except with respect to Sterling Stock Options granted prior to the date hereof;
(cC) Sellsell, transfer, lease, mortgage, encumber or otherwise dispose of any of its properties or assets to any Person, or propertiescancel, release or assign any indebtedness to any Person or any claims held by any Person, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course Ordinary Course of business consistent with such party’s investment objectives and policies as publicly disclosedBusiness, or (ii) encumbrances required pursuant to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except Contracts in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of force at the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make Plan or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.as Previously Disclosed;
(qD) Other make any material acquisition or investment either by purchase of stock or securities (other than purchases of U.S. Treasury Securities and U.S. Agency obligations in the ordinary course Ordinary Course of business consistent with such party’s investment objectives and policies as publicly disclosedBusiness), (i) paymerger or consolidation, discharge or satisfy any Indebtedness for borrowed moneycontributions to capital, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.property
Appears in 1 contract
Sources: Share Exchange Agreement (Mason Dixon Bancshares Inc/Md)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of 4.2, the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither Company shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 the chief executive officer or GBDCchief financial officer of SBC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3or, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDCwith respect to Sections 4.2(u) or 4.2(w), the chief credit officer or chief lending officer of SBC) (which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:
): (a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
officers; (b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose of authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its assets or properties, capital stock except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in pursuant to the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion exercise of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing Company Equity Awards outstanding as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and Agreement, or (iiv) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies change in any instrument or investments in new portfolio companies, in each case, entered into in Contract governing the ordinary course terms of business consistent with such party’s investment objectives and policies as publicly disclosed.
any of its securities; (kc) File or amend any material Tax Return other than in the ordinary course of business or consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated permitted by this Agreement, merge make any investment (either by purchase of stock or consolidate such party securities, contributions to capital, property transfers, or purchase of any of its Consolidated Subsidiaries with any Person property or enter into assets) in any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
; (s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.d)
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC Professional nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDCchief financial officer of SBC (or, as applicable (and with respect to Section 4.2(u) or 4.2(w), the consent chief credit officer or chief lending officer of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDCSBC), which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellexcept as consistent with past practice, grant any Rights, (iv) except for the issuance of any shares of Professional Common Stock due to the exercise of Professional Equity Awards prior to the Effective Time or as set forth in Section 4.2(b) of the Company Disclosure Letter, issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(d) (i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $100,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any Professional Stock Plan, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the Federal Reserve Board or any Regulatory Authority;
(n) make, change or revoke any tax election; adopt or change any tax accounting method; file any amended Tax Return; settle or compromise any Liability for Taxes; enter into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of applicable Law); surrender any right to claim a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, GAAPthat nothing in this Section 4.2(o) shall preclude Professional from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $250,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the SEC Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause Professional’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than $224.50 million (based on loan loss reserve of no less than 0.75%) at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $2.5 million that is unsecured, or $5.0 million that is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would materially interfere with, the consummation of the Merger;
(y) take any action, or refrain from taking any action, where such act or failure to act could reasonably be expected to (i) materially delay prevent either the Merger or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Forbearances. (i) During the period from the date of this Agreement until through the earlier of the Chilean Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 4.2(i) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2, none of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Bank Parties shall, and neither none of the Bank Parties shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority Consent of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), other Bank Parties (which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other amend its Organizational Documents or enter into a plan of consolidation, merger, share exchange, reorganization or similar business combination (other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (yconsolidations, mergers, share exchanges, reorganizations or similar business combinations solely among its wholly-owned Subsidiaries) or a letter of intent or agreement in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.principle with respect thereto;
(b) except as provided in Section 4.3 (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for for, shares of its capital stock stock, (ii) set a record date or payment date for, make, declare or pay any dividend (iiiother than dividends paid in the ordinary course of business by any of its direct or indirect wholly-owned Subsidiaries to it or any of its other direct or indirect wholly-owned Subsidiaries) purchaseor dividends expressly permitted pursuant to Section 4.3), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exercisable or exchangeable for any shares of its capital stock., (iii) grant or issue any Rights, (iv) issue, sell or otherwise permit to become outstanding any additional shares of capital stock, (v) make any change in any instrument or Contract governing the terms of any of its securities (other than for the purposes of effecting the Transactions) or (v) enter into any Contract with respect to the sale or voting of its capital stock;
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice or pursuant to Contracts in force at the date of this Agreement, and such party’s investment objectives and policies as publicly disclosed; makeother than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, change or revoke make any material Tax election; investment in or settle acquisition of (either by purchase of stock or compromise securities, contributions to capital, property transfers or purchase of any material Tax liability property or refund.assets) any other Person other than its wholly- owned Subsidiaries as of the date of this Agreement;
(ld) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(mi) Enter enter into any new line of business which is not within the Banking Business, (ii) change its lending, investment, underwriting, securitization, servicing, risk and asset liability management and other banking and operating, policies that are material to it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party and its Subsidiaries, taken as a whole, except as required by applicable Law or any regulations or policies imposed on it by any Governmental Authority or (iii) make application for the opening, relocation or closing of its Consolidated Subsidiaries has made any, or will make a debt open, relocate or equity investment that is close any, branch office, loan production office or other significant office or operations facility, other than branches in the jurisdiction of incorporation of each Bank Party in the ordinary course of business and consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past practice;
(ne) Other sell, transfer, mortgage, encumber or otherwise dispose of any part of its business or any of its properties or assets to any Person other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract wholly-owned Subsidiary or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness of any Person to any material amendment of, change in Person other than a wholly-owned Subsidiary or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle claims against any Proceeding against itPerson to any Person other than a wholly-owned Subsidiary, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice or pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed, disclosed in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (iiSection 4.2(i)(e) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.Disclosure Letter;
(qf) Other other than in the ordinary course of business consistent with past practice: incur any indebtedness for borrowed money (or modify any of the material terms of any such party’s outstanding indebtedness) other than indebtedness of it or any of its wholly-owned Subsidiaries to it or any of its wholly-owned subsidiaries; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person which is not one of its wholly-owned subsidiaries; or make any loan or advance to any Person which is not one of its wholly-owned subsidiaries;
(g) restructure or make any material change to its investment objectives and policies securities portfolio, its derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(h) other than in the ordinary course of business, terminate, amend, waive or knowingly fail to use reasonable best efforts to enforce, any material provision of any material Contract, other than normal renewals of Contracts without materially adverse changes, additions or deletions of terms; or enter into any Contract that would be required to be disclosed under Section 3.1(k)(B), (D), (E), (G) or (H), or Section 3.2(k)(B), (D), (E), (G) or (H), as publicly disclosedthe case may be, if it were in effect on the date hereof;
(i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction as required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries by Compensation and Benefit Plans and Contracts as in effect as of at the date of this Agreement or applicable Law, (i) increase by more than 20% the aggregate compensation or benefits of any of its current or former officers, directors, employees with annual base compensation in excess of U.S.$350,000 or consultants (for avoidance of doubt, all references to “directors” in this Section 4.2(i)(i) refer to members of its Board of Directors) other Permitted Indebtedness or than in the ordinary course of business consistent with past practice, (ii) cancel become a party to, adopt, terminate, materially amend or commit itself to any material indebtednessCompensation and Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment, severance, change in control, retention, bonus guarantee, collective bargaining or similar agreement or arrangement with or for the benefit of any current or former officer, director, employee with annual base compensation in excess of $350,000 or consultant or (iii) pay or award, or commit to pay or award, any bonuses (other than bonuses in respect of which a provision has been made and contemplated in any of the Bank Parties’ yearly or quarterly financial statements prior to the date hereof) or incentive compensation or (iv) grant or accelerate the vesting of any equity-based awards.
(rj) Except settle any Litigation, except for any Litigation involving solely money damages in an amount not greater than $1,000,000 individually, and that does not involve or create an adverse precedent for Litigation that is reasonably likely to be material to it and its Subsidiaries taken as a whole; or agree or consent to the issuance of any Order restricting, or otherwise expressly contemplated affecting in any material respect, its business or operations;
(k) implement or adopt any change in its financial accounting principles, practices or methods, including reserving methodologies, other than as may be required by this AgreementIFRS or Colombian GAAP, merge as applicable, regulatory accounting guidelines (including those passed by the Chilean Superintendency of Banks) or consolidate such party applicable Law, and as concurred to by its independent auditors;
(l) file or amend any material Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability in an amount greater than $2,000,000; make, change or revoke any material Tax election except to the extent consistent with past practice or as required by Law; agree to any extension or waiver of the statute of limitations with respect to assessment or determination of material Taxes, surrender any right to claim a material Tax refund; or change any material method of Tax accounting;
(m) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personthe conditions to the Transactions, or adoptincluding the Chilean Merger set forth in Article 5 not being satisfied on a timely basis except, recommendin each case, propose or announce an intention to as may be required by applicable Law;
(n) adopt a plan of complete or partial liquidation, liquidation or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.reorganization; or
(so) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment agree to take, or adopt any resolutions of the GBDC 3 its Board of Directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited to it by this Section 6.24.2(i).
(ii) During the period from the date of this Agreement through the consummation of the Colombian Assets and Liabilities Acquisition, except as set forth in Section 4.2(ii) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2(ii), Itaú Colombia shall not, and shall not permit any of its Subsidiaries, and Itaú Parent shall not permit Itaú Colombia or any of the Subsidiaries of Itaú Colombia to, without the prior written Consent of the Corp Group Parties (which Consent shall not be unreasonably withheld or delayed), take any of the actions that would require the consent of Corp Group Parent under Section 2.8 of the Shareholders Agreement.
(iii) Corp Group Parent and Itaú Parent agree that, for the purposes of this Section 4.2, any Subsidiary of any of the Bank Parties in which capital any of the Bank Parties or Bank Parties’ Affiliates or their officers or directors has a participation not lower than 95% shall be considered a wholly owned Subsidiary of such Bank Party.
Appears in 1 contract
Sources: Transaction Agreement
Forbearances. (i) During the period from the date of this Agreement until through the earlier of the Chilean Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 4.2(i) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2, none of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Bank Parties shall, and neither none of the Bank Parties shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority Consent of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), other Bank Parties (which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other amend its Organizational Documents or enter into a plan of consolidation, merger, share exchange, reorganization or similar business combination (other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (yconsolidations, mergers, share exchanges, reorganizations or similar business combinations solely among its wholly-owned Subsidiaries) or a letter of intent or agreement in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.principle with respect thereto;
(b) except as provided in Section 4.3 (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for for, shares of its capital stock stock, (ii) set a record date or payment date for, make, declare or pay any dividend (iiiother than dividends paid in the ordinary course of business by any of its direct or indirect wholly-owned Subsidiaries to it or any of its other direct or indirect wholly-owned Subsidiaries) purchaseor dividends expressly permitted pursuant to Section 4.3), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exercisable or exchangeable for any shares of its capital stock., (iii) grant or issue any Rights, (iv) issue, sell or otherwise permit to become outstanding any additional shares of capital stock, (v) make any change in any instrument or Contract governing the terms of any of its securities (other than for the purposes of effecting the Transactions) or (v) enter into any Contract with respect to the sale or voting of its capital stock;
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice or pursuant to Contracts in force at the date of this Agreement, and such party’s investment objectives and policies as publicly disclosed; makeother than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, change or revoke make any material Tax election; investment in or settle acquisition of (either by purchase of stock or compromise securities, contributions to capital, property transfers or purchase of any material Tax liability property or refund.assets) any other Person other than its wholly-owned Subsidiaries as of the date of this Agreement;
(ld) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(mi) Enter enter into any new line of business which is not within the Banking Business, (ii) change its lending, investment, underwriting, securitization, servicing, risk and asset liability management and other banking and operating, policies that are material to it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party and its Subsidiaries, taken as a whole, except as required by applicable Law or any regulations or policies imposed on it by any Governmental Authority or (iii) make application for the opening, relocation or closing of its Consolidated Subsidiaries has made any, or will make a debt open, relocate or equity investment that is close any, branch office, loan production office or other significant office or operations facility, other than branches in the jurisdiction of incorporation of each Bank Party in the ordinary course of business and consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past practice;
(ne) Other sell, transfer, mortgage, encumber or otherwise dispose of any part of its business or any of its properties or assets to any Person other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract wholly-owned Subsidiary or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness of any Person to any material amendment of, change in Person other than a wholly-owned Subsidiary or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle claims against any Proceeding against itPerson to any Person other than a wholly-owned Subsidiary, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice or pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed, disclosed in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (iiSection 4.2(i)(e) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.Disclosure Letter;
(qf) Other other than in the ordinary course of business consistent with past practice: incur any indebtedness for borrowed money (or modify any of the material terms of any such party’s outstanding indebtedness) other than indebtedness of it or any of its wholly-owned Subsidiaries to it or any of its wholly-owned subsidiaries; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person which is not one of its wholly-owned subsidiaries; or make any loan or advance to any Person which is not one of its wholly-owned subsidiaries;
(g) restructure or make any material change to its investment objectives and policies securities portfolio, its derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(h) other than in the ordinary course of business, terminate, amend, waive or knowingly fail to use reasonable best efforts to enforce, any material provision of any material Contract, other than normal renewals of Contracts without materially adverse changes, additions or deletions of terms; or enter into any Contract that would be required to be disclosed under Section 3.1(k)(B), (D), (E), (G) or (H), or Section 3.2(k)(B), (D), (E), (G) or (H), as publicly disclosedthe case may be, if it were in effect on the date hereof;
(i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction as required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries by Compensation and Benefit Plans and Contracts as in effect as of at the date of this Agreement or applicable Law, (i) increase by more than 20% the aggregate compensation or benefits of any of its current or former officers, directors, employees with annual base compensation in excess of U.S.$350,000 or consultants (for avoidance of doubt, all references to “directors” in this Section 4.2(i)(i) refer to members of its Board of Directors) other Permitted Indebtedness or than in the ordinary course of business consistent with past practice, (ii) cancel become a party to, adopt, terminate, materially amend or commit itself to any material indebtednessCompensation and Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment, severance, change in control, retention, bonus guarantee, collective bargaining or similar agreement or arrangement with or for the benefit of any current or former officer, director, employee with annual base compensation in excess of $350,000 or consultant or (iii) pay or award, or commit to pay or award, any bonuses (other than bonuses in respect of which a provision has been made and contemplated in any of the Bank Parties’ yearly or quarterly financial statements prior to the date hereof) or incentive compensation or (iv) grant or accelerate the vesting of any equity-based awards.
(rj) Except settle any Litigation, except for any Litigation involving solely money damages in an amount not greater than $1,000,000 individually, and that does not involve or create an adverse precedent for Litigation that is reasonably likely to be material to it and its Subsidiaries taken as a whole; or agree or consent to the issuance of any Order restricting, or otherwise expressly contemplated affecting in any material respect, its business or operations;
(k) implement or adopt any change in its financial accounting principles, practices or methods, including reserving methodologies, other than as may be required by this AgreementIFRS or Colombian GAAP, merge as applicable, regulatory accounting guidelines (including those passed by the Chilean Superintendency of Banks) or consolidate such party applicable Law, and as concurred to by its independent auditors;
(l) file or amend any material Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability in an amount greater than $2,000,000; make, change or revoke any material Tax election except to the extent consistent with past practice or as required by Law; agree to any extension or waiver of the statute of limitations with respect to assessment or determination of material Taxes, surrender any right to claim a material Tax refund; or change any material method of Tax accounting;
(m) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personthe conditions to the Transactions, or adoptincluding the Chilean Merger set forth in Article 5 not being satisfied on a timely basis except, recommendin each case, propose or announce an intention to as may be required by applicable Law;
(n) adopt a plan of complete or partial liquidation, liquidation or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.reorganization; or
(so) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment agree to take, or adopt any resolutions of the GBDC 3 its Board of Directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited to it by this Section 6.24.2(i).
(ii) During the period from the date of this Agreement through the consummation of the Colombian Assets and Liabilities Acquisition, except as set forth in Section 4.2(ii) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2(ii), Itaú Colombia shall not, and shall not permit any of its Subsidiaries, and Itaú Parent shall not permit Itaú Colombia or any of the Subsidiaries of Itaú Colombia to, without the prior written Consent of the Corp Group Parties (which Consent shall not be unreasonably withheld or delayed), take any of the actions that would require the consent of Corp Group Parent under Section 2.8 of the Shareholders Agreement.
(iii) Corp Group Parent and Itaú Parent agree that, for the purposes of this Section 4.2, any Subsidiary of any of the Bank Parties in which capital any of the Bank Parties or Bank Parties’ Affiliates or their officers or directors has a participation not lower than 95% shall be considered a wholly owned Subsidiary of such Bank Party.
Appears in 1 contract
Forbearances. During the period from the date of Except as expressly contemplated by this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be or required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectlyLegal Requirement, without the prior written consent of GBDC 3 or GBDC, as applicable Investar (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written any such consent shall not be unreasonably delayed, conditioned or withheld:delayed), CFG will not (and will cause each of its Subsidiaries not to):
(aA) Other than pursuant enter into any new material line of business or change its lending, investment, underwriting, risk and asset liability management and other material banking and operating policies in any material respect;
(B) open, close or relocate any branch office, or acquire or sell or agree to such party’s dividend reinvestment plan as in effect as of the date of this Agreement acquire or sell any branch office or deposit liabilities;
(xC) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grantotherwise permit to become outstanding, or dispose of or encumber or pledge, or authorize or propose the creation of (i) of, any additional shares of its capital stockstock or permit new shares of its stock to become subject to new grants;
(D) issue, (ii) grant or accelerate the vesting of any GBDC 3 Voting Debt option, restricted stock award, warrant, call, commitment, subscription, right to repurchase or GBDC Voting Debt, as applicableagreement of any character related to the authorized or issued capital stock of CFG or Cheaha Bank, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any its shares of such shares or other securities.stock;
(bE) (i) Make, authorize, declare, pay directly or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) indirectly adjust, split, combine, reclassify or take similar action with respect to any redeem, reclassify, purchase of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.;
(cF) Sellsell, transfer, lease, mortgage, encumber or otherwise dispose of or discontinue any of its assets assets, deposits, business or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions or discontinuances in the ordinary course of business consistent with past practice and in a transaction that, together with other such party’s investment objectives and policies transactions, is not material to CFG or Cheaha Bank, taken as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.a whole;
(dG) Acquire acquire (other than by way of foreclosures or agree to acquire acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the ordinary and usual course of business consistent with past practice) all or any portion of the assets, business business, deposits or properties of any other Person, whether by merger, consolidation, purchase Entity or otherwise or make enter into any other investmentstransaction, except in a transaction conducted in the ordinary course of business consistent with past practice and in a transaction that, together with other such party’s investment objectives transactions, is not material to it and policies its Subsidiaries, taken as publicly disclosed.a whole;
(eH) Amend enter into, amend, renew or terminate any agreement of the GBDC 3 Charter type that is or would be required to be disclosed in Section 3.13(A) of the GBDC 3 Bylaws (Schedules other than as contemplated by this Agreement, unless the agreement is to be performed in full prior to the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.Closing;
(fI) Implement amend its Constituent Documents or those of its Subsidiaries;
(J) implement or adopt any material change in its Tax accounting principles or financial accounting principles, practices or methodspolicies, other than as may be required by applicable Law, GAAP, the SEC GAAP or applicable regulatory requirements.accounting principles;
(gK) Hire any employees knowingly take or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail omit to take any action that would, or would is reasonably be expected likely to (i) materially delay or materially impede the ability result in any of the parties conditions to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) consummation of the Code; provided, however, that the foregoing shall Contemplated Transactions set forth in Sections 7.01 or 7.02 not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.being satisfied;
(iL) Incur incur or guarantee any Indebtedness indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.practice;
(lM) Take except as set forth in Section 5.01(M) of the Schedules, make any actionchange in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or knowingly fail pay or agree or orally promise to take pay, conditionally or otherwise, any actionbonus, which action extra compensation, pension or failure severance or vacation pay, to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line for the benefit of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made directors, officers, employees or will make a debt agents, or equity investment that is enter into any employment or consulting contract (other than in the ordinary course consistent with past practices or as contemplated by this Agreement) or other agreement with any director, officer or employee or adopt, amend in any material respect or terminate any pension, employee welfare, retirement, stock purchase, stock option, stock appreciation rights, termination, severance, income protection, golden parachute, savings or profit‑sharing plan (including trust agreements and insurance contracts embodying such plans), any deferred compensation, or collective bargaining agreement, any group insurance contract or any other incentive, welfare or Employee Benefit Plan or agreement maintained by it for the benefit of its directors, employees or former employees, in each case except in the ordinary course of business and consistent with such party’s investment objectives past practices, as contemplated by this Agreement and policies as publicly disclosed and is, would or should may be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).required by Legal Requirements;
(nN) Other than in settle any Proceeding involving the ordinary course payment by it of business consistent with such party’s investment objectives and policies as publicly disclosedmonetary damages or imposing a material restriction on the operations of CFG, enter into Investar or any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.their respective Subsidiaries;
(oO) Other than in the ordinary course mortgage, pledge or subject to Lien any of its property, business consistent with such party’s investment objectives and policies as publicly disclosedor assets, terminate, cancel, renew corporeal or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against itincorporeal, except for Proceedings that (i) statutory liens not yet delinquent, (ii) landlord liens, (iii) minor defects and irregularities in title and encumbrances that do not materially impair the use thereof for the purpose for which they are settled held, and (iv) pledges of assets to secure public funds deposits;
(P) sell, transfer, lease to others or otherwise dispose of any of its material assets (except any sales or leases of property acquired by Cheaha Bank by foreclosure or otherwise, in each instance, in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosedpractices) or cancel or compromise any debt or claim, in an amount not or waive or release any right or claim of a value in excess of $250,000 25,000;
(Q) make any capital expenditures or capital additions or betterments in excess of an aggregate of $25,000;
(R) hire or employ any new employee with an annual salary exceeding $50,000, or hire or employ any Person for any newly created position;
(S) sell or dispose of, or otherwise divest itself of the aggregate ownership, possession, custody or control, of any corporate books or records of any nature that, in accordance with sound business practice, normally are retained for a period of time after their use, creation or receipt, except at the end of the normal retention period;
(after reduction T) materially change any method, practice or principle of accounting, except as may be required from time to time by GAAP (without regard to any insurance proceeds actually received)early adoption date) or any Governmental Authority; (iiU) would not impose sell (other than for payment at maturity) or purchase any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other securities other than in the ordinary course of business consistent with past practices;
(V) make, commit to make, renew, extend the maturity of, or alter any of the material terms of any Loan in excess of $1,000,000 without Investar’s consent, which consent Investar will be deemed to have given unless it objects to the Loan within three (3) Business Days of receiving a notice from CFG identifying the proposed borrower, the loan amount, and the material Loan terms;
(W) renew, extend the maturity of, or alter any of the material terms of any Loan which has been classified as, or, in the exercise of reasonable diligence by Cheaha Bank or any Governmental Authority with supervisory jurisdiction over Cheaha Bank, should have been classified as “substandard,” “doubtful,” “loss,” “other loans especially mentioned,” “other assets especially mentioned,” “watch,” “pass/watch” or any comparable classifications by such party’s investment objectives Persons, in excess of $250,000;
(X) make or commit to make a loan to any borrower with an outstanding loan agreement, note or borrowing arrangement with Cheaha Bank which has been classified as or, in the exercise of reasonable diligence by Cheaha or any Governmental Authority with supervisory jurisdiction over Cheaha Bank, should have been classified as “substandard,” “doubtful,” “loss,” “other loans especially mentioned,” “other assets especially mentioned,” “watch,” “pass/watch” or any comparable classifications by such Persons;
(Y) enter into any acquisitions or leases of real property, including new leases and policies as publicly disclosedlease extensions, excluding the acquisition of property acquired by Cheaha Bank by foreclosure or otherwise; or
(iZ) payforeclose upon or otherwise acquire any commercial real property prior to receipt and approval by Investar of a Phase I environmental review thereof;
(AA) excluding deposits and certificates of deposit, discharge incur or satisfy modify any Indebtedness indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement including Federal Home Loan Bank advances;
(BB) prepay any indebtedness or other Permitted Indebtedness or similar arrangements resulting in any prepayment penalty thereunder;
(CC) issue a replacement of any certificate representing its securities except upon (i) written notice to Investar, (ii) cancel presentation of a properly executed lost certificate affidavit in form reasonably satisfactory to Investar and (iii) if required by Investar, the delivery of an indemnity or surety bond in the amount of the consideration payable with respect to shares of CFG Common Stock represented therein;
(DD) take or fail to take any action which would adversely affect or delay in any material indebtedness.respects the ability of Cheaha Bank or Investar to obtain any approvals from any regulatory agencies or other approvals required for consummation of the Contemplated Transactions or to perform its obligations and agreements under this Agreement; or
(rEE) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction contract, with any Personrespect to, or adopt, recommend, propose otherwise agree or announce an intention commit to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizingdo, any of the actions prohibited by this Section 6.2foregoing.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Investar Holding Corp)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of 4.2, the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither Company shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 the chief executive officer or GBDC, as applicable chief financial officer of SBC (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiespursuant to Contracts in force at the date hereof, except for or permitted by, this Agreement, make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount that is more than $100,000 less than its book value;
(e) terminate or allow, after the use of reasonable best efforts, to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any lien, encumbrance or other liability any of its assets, (iii) sell, assign or transfer any of its assets in excess of $50,000.00 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except (i) in the ordinary course of business or (ii) pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(e) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(f), “short-term” shall mean maturities of six months or less); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) other than in the case ordinary course of GBDC 3business, terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms;
(k) or Except as set forth in Section 4.2(k) of the GBDC Charter or the GBDC Bylaws (Company Disclosure Letter, other than in the case ordinary course of GBDCbusiness and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement, (i) increase in any manner the compensation or any other governing documents or similar governing documents fringe benefits of any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such party’s Consolidated Subsidiaries.officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement with or for the benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the lapsing of restrictions with respect to, Rights pursuant to any Holding Stock Plan or (v) make any changes to a Benefit Plan that are not required by Law;
(fl) Implement settle any Litigation, except in the ordinary course of business;
(m) revalue any of its or adopt its Subsidiaries’ assets or change any material change in method of accounting or accounting practice used by it or any of its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Tax Liability; or make, change or revoke any Tax election or change any method of Tax accounting, except as required by applicable Law;
(o) knowingly take, GAAPor knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude Holding from exercising its rights under Sections 4.5 or 4.12;
(p) merge or consolidate it or any of its Subsidiaries with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) the Bank shall not make any changes in the mix, rates, terms or maturities of the Bank’s deposits or other Liabilities, except in a manner and pursuant to policies consistent with past practice and competitive factors in the market place; open any new branch or deposit taking facility; or close or relocate any existing branch or facility;
(t) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory lending limits; make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further that from the date hereof, any new individual loan or new extension of credit in excess of $1,000,000 shall require the written approval of the Chief Executive Officer or Chief Credit Officer of SNB, which approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to such individual. Notwithstanding the foregoing, the SEC right of SNB to approve any loans or applicable regulatory requirements.extensions of credit shall terminate when the aggregate amount of such loans reviewed by SNB exceeds $11,000,000 from and after the date hereof;
(gu) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that wouldat the time of taking such action is reasonably likely to prevent, or would reasonably be expected to materially interfere with, the consummation of the Merger;
(iv) materially delay knowingly take any action that would prevent or materially impede the ability of Merger and the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iw) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. (i) During the period from the date of this Agreement until through the earlier of the Chilean Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 4.2(i) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2, none of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Bank Parties shall, and neither none of the Bank Parties shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority Consent of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), other Bank Parties (which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other amend its Organizational Documents or enter into a plan of consolidation, merger, share exchange, reorganization or similar business combination (other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (yconsolidations, mergers, share exchanges, reorganizations or similar business combinations solely among its wholly-owned Subsidiaries) or a letter of intent or agreement in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.principle with respect thereto;
(b) except as provided in Section 4.3 (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for for, shares of its capital stock stock, (ii) set a record date or payment date for, make, declare or pay any dividend (iiiother than dividends paid in the ordinary course of business by any of its direct or indirect wholly-owned Subsidiaries to it or any of its other direct or indirect wholly-owned Subsidiaries) purchaseor dividends expressly permitted pursuant to Section 4.3), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exercisable or exchangeable for any shares of its capital stock., (iii) grant or issue any Rights, (iv) issue, sell or otherwise permit to become outstanding any additional shares of capital stock, (v) make any change in any instrument or Contract governing the terms of any of its securities (other than for the purposes of effecting the Transactions) or (v) enter into any Contract with respect to the sale or voting of its capital stock;
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice or pursuant to Contracts in force at the date of this Agreement, and such party’s investment objectives and policies as publicly disclosed; makeother than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, change or revoke make any material Tax election; investment in or settle acquisition of (either by purchase of stock or compromise securities, contributions to capital, property transfers or purchase of any material Tax liability property or refund.assets) any other Person other than its wholly-owned Subsidiaries as of the date of this Agreement;
(ld) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(mi) Enter enter into any new line of business which is not within the Banking Business, (ii) change its lending, investment, underwriting, securitization, servicing, risk and asset liability management and other banking and operating, policies that are material to it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party and its Subsidiaries, taken as a whole, except as required by applicable Law or any regulations or policies imposed on it by any Governmental Authority or (iii) make application for the opening, relocation or closing of its Consolidated Subsidiaries has made any, or will make a debt open, relocate or equity investment that is close any, branch office, loan production office or other significant office or operations facility, other than branches in the jurisdiction of incorporation of each Bank Party in the ordinary course of business and consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past practice;
(ne) Other sell, transfer, mortgage, encumber or otherwise dispose of any part of its business or any of its properties or assets to any Person other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract wholly-owned Subsidiary or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness of any Person to any material amendment of, change in Person other than a wholly-owned Subsidiary or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle claims against any Proceeding against itPerson to any Person other than a wholly-owned Subsidiary, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice or pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed, disclosed in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (iiSection 4.2(i)(e) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.Disclosure Letter;
(qf) Other other than in the ordinary course of business consistent with past practice: incur any indebtedness for borrowed money (or modify any of the material terms of any such party’s outstanding indebtedness) other than indebtedness of it or any of its wholly-owned Subsidiaries to it or any of its wholly-owned subsidiaries; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person which is not one of its wholly-owned subsidiaries; or make any loan or advance to any Person which is not one of its wholly-owned subsidiaries;
(g) restructure or make any material change to its investment objectives and policies securities portfolio, its derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(h) other than in the ordinary course of business, terminate, amend, waive or knowingly fail to use reasonable best efforts to enforce, any material provision of any material Contract, other than normal renewals of Contracts without materially adverse changes, additions or deletions of terms; or enter into any Contract that would be required to be disclosed under Section 3.1(k)(B), (D), (E), (G) or (H), or Section 3.2(k)(B), (D), (E), (G) or (H), as publicly disclosedthe case may be, if it were in effect on the date hereof;
(i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction as required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries by Compensation and Benefit Plans and Contracts as in effect as of at the date of this Agreement or applicable Law, (i) increase by more than 20% the aggregate compensation or benefits of any of its current or former officers, directors, employees with annual base compensation in excess of U.S.$350,000 or consultants (for avoidance of doubt, all references to “directors” in this Section 4.2(i)(i) refer to members of its Board of Directors) other Permitted Indebtedness or than in the ordinary course of business consistent with past practice, (ii) cancel become a party to, adopt, terminate, materially amend or commit itself to any material indebtednessCompensation and Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment, severance, change in control, retention, bonus guarantee, collective bargaining or similar agreement or arrangement with or for the benefit of any current or former officer, director, employee with annual base compensation in excess of $350,000 or consultant or (iii) pay or award, or commit to pay or award, any bonuses (other than bonuses in respect of which a provision has been made and contemplated in any of the Bank Parties’ yearly or quarterly financial statements prior to the date hereof) or incentive compensation or (iv) grant or accelerate the vesting of any equity-based awards.
(rj) Except settle any Litigation, except for any Litigation involving solely money damages in an amount not greater than $1,000,000 individually, and that does not involve or create an adverse precedent for Litigation that is reasonably likely to be material to it and its Subsidiaries taken as a whole; or agree or consent to the issuance of any Order restricting, or otherwise expressly contemplated affecting in any material respect, its business or operations;
(k) implement or adopt any change in its financial accounting principles, practices or methods, including reserving methodologies, other than as may be required by this AgreementIFRS or Colombian GAAP, merge as applicable, regulatory accounting guidelines (including those passed by the Chilean Superintendency of Banks) or consolidate such party applicable Law, and as concurred to by its independent auditors;
(l) file or amend any material Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability in an amount greater than $2,000,000; make, change or revoke any material Tax election except to the extent consistent with past practice or as required by Law; agree to any extension or waiver of the statute of limitations with respect to assessment or determination of material Taxes, surrender any right to claim a material Tax refund; or change any material method of Tax accounting;
(m) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personthe conditions to the Transactions, or adoptincluding the Chilean Merger and the Colombian Merger, recommendset forth in Article 5 not being satisfied on a timely basis except, propose or announce an intention to in each case, as may be required by applicable Law;
(n) adopt a plan of complete or partial liquidation, liquidation or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.reorganization; or
(so) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment agree to take, or adopt any resolutions of the GBDC 3 its Board of Directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited to it by this Section 6.24.2(i).
(ii) During the period from the date of this Agreement through the Colombian Acquisition Closing or the Colombian Effective Time, as the case may be, except as set forth in Section 4.2(ii) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2(ii), Itaú Colombia shall not, and shall not permit any of its Subsidiaries, and Itaú Parent shall not permit Itaú Colombia or any of the Subsidiaries of Itaú Colombia to, without the prior written Consent of the Corp Group Parties (which Consent shall not be unreasonably withheld or delayed), take any of the actions that would require the consent of Corp Group Parent under Section 2.8 of the Shareholders Agreement.
(iii) Corp Group Parent and Itaú Parent agree that, for the purposes of this Section 4.2, any Subsidiary of any of the Bank Parties in which capital any of the Bank Parties or Bank Parties’ Affiliates or their officers or directors has a participation not lower than 95% shall be considered a wholly owned Subsidiary of such Bank Party.
Appears in 1 contract
Sources: Transaction Agreement (Corpbanca/Fi)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither email shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheldParent:
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case ordinary course of GBDC 3business, pursuant to capital calls with respect to incur any indebtedness for borrowed money or any indebtedness that constitutes the GBDC 3 Subscription Agreements and (y) in deferred purchase price of any property or assets, assume, guarantee, endorse or otherwise as an accommodation become responsible for the case obligations of GBDCany other individual, Permitted Issuances, issue, deliver, sell corporation or grantother entity, or encumber make any loan or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.advance;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combinecombine or reclassify any capital stock;
(c) make, reclassify declare or take similar action with respect to pay any of its capital stock dividend (whether in cash or issue property), or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.;
(cd) Sellgrant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock;
(e) issue any additional shares of capital stock;
(f) sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its material properties or assets (including, without limitation, cash) to any individual, corporation or propertiesother entity, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s or pursuant to contracts or agreements in force at the date of this Agreement;
(g) except pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any investment objectives and policies as publicly disclosedin, either by purchase of stock or securities, contributions to capital, property transfers, or (ii) encumbrances required to secure Permitted Indebtedness purchase of such party any property or assets, any of its Consolidated Subsidiaries.other individual, corporation or other entity;
(dh) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted for transactions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend business, terminate, or waive any material provision of, any contract, or make any change in any instrument or agreement governing the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents terms of any of such party’s Consolidated Subsidiaries.
(f) Implement its securities, or adopt any material change in its Tax lease or financial accounting principles, practices or methodscontract, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability normal renewals of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning contracts and leases without material adverse changes of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.terms;
(i) Incur increase in any Indebtedness for borrowed money manner the compensation or guarantee fringe benefits of any Indebtedness of another Person, except for (i) draw-downs with respect its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any Previously Disclosed financing arrangements existing as such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return employee other than in the ordinary course of business consistent business, or accelerate the vesting of, or the lapsing of restrictions with past practice respect to, any stock options or other stock-based compensation;
(j) solicit or encourage from any third party or enter into any negotiations, discussions or agreement in respect of, or authorize any individual, corporation or other entity to solicit or encourage from any third party or enter into any negotiations, discussions or agreement in respect of, or provide or cause to be provided any confidential information in connection with, any inquiries or proposals relating to the conveyance, sale, lease, transfer or other disposition of all or a substantial portion of its business, property or assets, or the acquisition of its capital stock or securities convertible into capital stock, or the merger or consolidation, whether in one transaction or a series of transactions, of it with any corporation or other entity, other than as provided by this Agreement (and such party’s investment objectives each party shall promptly notify the other of all of the relevant details relating to all inquiries and policies as publicly disclosed; make, change or revoke proposals which it may receive relating to any of these matters);
(k) settle any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any actionclaim, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is proceeding involving money damages, except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and isbusiness;
(l) make any material capital expenditures, would or should be reflected in such party’s schedule of investments included make any material changes in its quarterly current method of conducting business, or annual periodic reports that are filed liquidate, dissolve or suffer any liquidation or dissolution;
(m) make any material payment of principal of any debt, with a maturity of more than one year, for borrowed money or for the SECdeferred purchase price of property or services except at the stated maturity of the debt or as required by mandatory prepayment provisions relating thereto (subject to any subordination provisions applicable thereto).;
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract material agreement or GBDC Material Contractbecome liable under any material agreement for the lease, as applicablehire or use of any real or personal property, had it been entered or enter into prior any material sale/leaseback arrangement with respect to the date of this Agreement.any real or personal property which now owned or hereafter acquired;
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew incur or agree to make any material amendment optional prepayment of, change in or waiver under purchase, redeem or otherwise acquire, or amend any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant provision pertaining to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personsubordination, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.terms
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until to the earlier of the Effective Time and or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by termination of this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shallCompany shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable Sterling (and the consent Company shall provide Sterling with prompt notice of a majority of any events referred to in this Section 7.02 occurring after the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheld:date hereof):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness indebtedness of such party the Company or any of its Consolidated Subsidiaries.
(d) Acquire or agree Subsidiaries to acquire all the Company or any portion of the assets, business or properties its Subsidiaries; it being understood and agreed that incurrence of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted indebtedness in the ordinary course of business consistent with such party’s investment objectives shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, and policies sales of certificates of deposit), assume, guarantee, endorse or otherwise as publicly disclosed.
(e) Amend an accommodation become responsible for the GBDC 3 Charter or the GBDC 3 Bylaws (in the case obligations of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that wouldPerson, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies loan or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return advance other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosedprudent banking practices;
(b) adjust, split, combine or reclassify any capital stock; make, change declare or revoke pay any material Tax electiondividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, grant any stock options or stock awards, or grant any Person any right to acquire any shares of its capital stock; or settle issue any additional shares of capital stock (except upon exercise and conversion of Company Options, as provided in Section 3.03 and Section 8.06), or compromise any material Tax liability securities or refund.obligations convertible into or exchangeable for any shares of its capital stock;
(lc) Take any actionsell, transfer, mortgage, encumber or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line otherwise dispose of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made properties or will make a debt assets to any Person, or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness to such Person or any material amendment of, change in or waiver under claims held by any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against itsuch Person, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it prudent banking practices or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party contracts or its Consolidated Subsidiaries as agreements in effect as of force at the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.2.;
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and Time, the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shallCompany shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable Sterling (and the consent Company shall provide Sterling with prompt notice of a majority any events referred to in this Section 7.02 occurring after the date hereof and Sterling shall respond to any such notice within three (3) Business Days of the Independent Directors its receipt of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheld:any such notice):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness indebtedness of such party the Company or any of its Consolidated Subsidiaries.
(d) Acquire or agree Subsidiaries to acquire all the Company or any portion of the assets, business or properties its Subsidiaries; it being understood and agreed that incurrence of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted indebtedness in the ordinary course of business consistent with such party’s investment objectives shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, and policies sales of certificates of deposit), assume, guarantee, endorse or otherwise as publicly disclosed.
(e) Amend an accommodation become responsible for the GBDC 3 Charter or the GBDC 3 Bylaws (in the case obligations of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that wouldPerson, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies loan or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return advance other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosedprudent banking practices;
(b) adjust, split, combine or reclassify any capital stock; make, change declare or revoke pay any material Tax electiondividend or make any other distribution on (other than the payment of dividends with respect to the Company Preferred Stock and interest with respect to the Company Debenture in accordance with their respective terms and provisions), or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, grant any stock options or stock awards, or grant any Person any right to acquire any shares of its capital stock; or settle issue any additional shares of capital stock (except upon exercise and conversion of Company Options, Company Preferred Stock and Company Debenture as provided in Sections 3.02 and 8.04), or compromise any material Tax liability securities or refund.obligations convertible into or exchangeable for any shares of its capital stock;
(lc) Take any actionsell, transfer, mortgage, encumber or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line otherwise dispose of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made properties or will make a debt assets to any Person, or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness to such Person or any material amendment of, change in or waiver under claims held by any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against itsuch Person, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s prudent banking practices or pursuant to contracts or agreements in force at the date of this Agreement;
(d) make any material investment objectives and policies as publicly disclosed(other than trades in investment securities in the ordinary course) either by purchase of stock or securities, in an amount not contributions to capital, property transfers, or purchase of any property or assets of any other Person;
(e) enter into, terminate or fail to exercise any material right under, any contract or agreement involving annual payments in excess of $250,000 in the aggregate 25,000 and which cannot be terminated without penalty upon 30 days' notice, or make any change in, or extension of (after reduction by any insurance proceeds actually received); (iiother than automatic extensions) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after leases or contracts involving annual payments in excess of $25,000 and which cannot be terminated without penalty upon 30 days' notice;
(f) modify the Effective Time, GBDC, GBDC 3, terms of any Company Benefit Plan (including any severance pay plan) or increase or modify in any manner the Surviving Company compensation or fringe benefits of any of their respective Consolidated Subsidiaries its Employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee other than (i) routine adjustments in compensation and (iii) would not admit liability, guilt or fault.
(q) Other than fringe benefits in the ordinary course of business consistent with past practice, (ii) accelerating the vesting of any stock options or other stock- based compensation, and (iii) the payment of incentive compensation and bonuses accruing during the 2000 fiscal year to the extent (A) any such party’s investment objectives incentive compensation and/or bonus is fully accrued and reflected in the Company Financial Statements or otherwise fully accrued and reflected in the Company's books and records and disclosed in Section 7.02(f) of the Company Disclosure Schedule, and (B) paid in accordance with the terms and conditions of the Company's incentive compensation and/or bonus policies as publicly disclosedor in the absence of such policies, in accordance with past practices;
(g) settle any claim, action or proceeding involving the payment of money damages in excess of $25,000;
(h) amend its Articles of Incorporation or its bylaws;
(i) payfail to maintain its Regulatory Agreements, discharge material Authorizations or satisfy to file in a timely fashion all federal, state, local and foreign Tax Returns;
(j) make any Indebtedness for borrowed money, other capital expenditures of more than $25,000 individually or $100,000 in the payment, discharge aggregate;
(k) fail to maintain or satisfaction administer each Company Benefit Plan in accordance with applicable Law or timely make all contributions or accruals required pursuant thereunder in accordance with GAAP;
(l) 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 at any time prior to the terms of outstanding debt of such party Effective Time, or its Consolidated Subsidiaries as in effect as any of the date conditions to the Merger set forth in Article IX not being satisfied or in a violation of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by provision of this Agreement, merge except, in every case, as may be required by applicable law;
(m) change any methods or consolidate such party or any policies of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personaccounting from those used in the Company Financial Statements;
(n) agree, or adoptmake any commitment, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, in writing or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizingotherwise, any of the actions prohibited by described in clauses (a) through (m) of this Section 6.27.02.
Appears in 1 contract
Forbearances. During From the period from Execution Date until the date Closing, each of the Parties covenants and agrees to ensure that neither OXMI nor Seller (with regard to Hotel Corporation and the Hotel Business), other than as contemplated in this Agreement until or as otherwise disclosed in writing to the earlier other Party or subject to public disclosure, do any of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, following without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC)other Party, which prior written consent shall not be unreasonably delayed, conditioned or withheld:
(a) Other than pursuant to such party’s declare, set aside, make or pay any dividend reinvestment plan as or other distribution in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stockstock or otherwise purchase or redeem, (ii) any GBDC 3 Voting Debt directly or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution onindirectly, any shares of its capital stock;
(b) issue, except for (A) the authorizationsell or deliver or enter into any agreement to issue, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend sell or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, deliver any shares of its capital stock or any options, warrants, or other rights, warrants agreements, commitments, arrangements or options understandings of any kind, contingent or otherwise, to acquirepurchase, sell or deliver any such shares, or any securities convertible intointo or exchangeable for any such shares, such capital stock.or effect any stock split, or otherwise change, combine or reclassify its authorized capitalization;
(c) Sell, transfer, lease, mortgage, encumber incur any indebtedness or otherwise dispose of issue or sell any of its assets debt securities or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or prepay any of its Consolidated Subsidiaries.debt;
(d) Acquire mortgage, pledge or agree otherwise subject to acquire all any material lien or lease, any portion of the its properties or assets, business tangible or properties intangible or permit or suffer any such property or asset to be subjected to any material lien or lease; or license or dispose of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investmentsmaterial assets, except in a transaction conducted in the ordinary course Ordinary Course of business Business consistent with such party’s investment objectives and policies as publicly disclosed.its prior practice;
(e) Amend the GBDC 3 Charter forgive or the GBDC 3 Bylaws (in the case of GBDC 3) cancel any debts or the GBDC Charter claims, or the GBDC Bylaws (in the case of GBDC) or waive any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.rights, except for fair value;
(f) Implement modify or adopt extend the current term of any material change in its Tax agreement, or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.waive any material rights thereunder;
(g) Hire pay any employees bonus to any employee or establishagent or contractor, become a party or grant to any employee or commit to adopt agent or contractor any Employee Benefit Plan.increase in compensation except in the Ordinary Course of Business consistent with its prior practice, or enter into any employment, severance, termination or similar agreement with any employee or agent or contractor;
(h) Take amend its Certificate of Incorporation or Bylaws or any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.other organizational documents;
(i) Incur make any Indebtedness for borrowed money material changes in policies or guarantee any Indebtedness practices relating to business practices or other terms accounting therefore or in policies of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.employment;
(j) Make or agree to make enter into any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course type of business consistent with such party’s investment objectives and policies not conducted by it as publicly disclosed.of the Execution Date or create or organize any subsidiary or enter into or participate in any joint venture or partnership;
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction agreement or transactions with any Person, Affiliates or adopt, recommend, propose make any amendment or announce an intention modification to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of any such party or any of its Consolidated Subsidiaries.agreement;
(sl) With make or change any election in respect of Taxes or settle any claim related to GBDC 3, Taxes; or
(m) enter into any new GBDC 3 Subscription Agreements.
(t) Agree contract, commitment or arrangement to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, do any of the actions prohibited by this Section 6.2foregoing.
Appears in 1 contract
Forbearances. (i) During the period from the date of this Agreement until through the earlier of the Chilean Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 4.2(i) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2, none of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Bank Parties shall, and neither none of the Bank Parties shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority Consent of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), other Bank Parties (which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other amend its Organizational Documents or enter into a plan of consolidation, merger, share exchange, reorganization or similar business combination (other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (yconsolidations, mergers, share exchanges, reorganizations or similar business combinations solely among its wholly-owned Subsidiaries) or a letter of intent or agreement in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.principle with respect thereto;
(b) except as provided in Section 4.3 (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for for, shares of its capital stock stock, (ii) set a record date or payment date for, make, declare or pay any dividend (iiiother than dividends paid in the ordinary course of business by any of its direct or indirect wholly-owned Subsidiaries to it or any of its other direct or indirect wholly-owned Subsidiaries) purchaseor dividends expressly permitted pursuant to Section 4.3), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exercisable or exchangeable for any shares of its capital stock., (iii) grant or issue any Rights, (iv) issue, sell or otherwise permit to become outstanding any additional shares of capital stock, (v) make any change in any instrument or Contract governing the terms of any of its securities (other than for the purposes of effecting the Transactions) or (v) enter into any Contract with respect to the sale or voting of its capital stock;
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice or pursuant to Contracts in force at the date of this Agreement, and such party’s investment objectives and policies as publicly disclosed; makeother than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, change or revoke make any material Tax election; investment in or settle acquisition of (either by purchase of stock or compromise securities, contributions to capital, property transfers or purchase of any material Tax liability property or refund.assets) any other Person other than its wholly-owned Subsidiaries as of the date of this Agreement;
(ld) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(mi) Enter enter into any new line of business which is not within the Banking Business, (ii) change its lending, investment, underwriting, securitization, servicing, risk and asset liability management and other banking and operating, policies that are material to it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party and its Subsidiaries, taken as a whole, except as required by applicable Law or any regulations or policies imposed on it by any Governmental Authority or (iii) make application for the opening, relocation or closing of its Consolidated Subsidiaries has made any, or will make a debt open, relocate or equity investment that is close any, branch office, loan production office or other significant office or operations facility, other than branches in the jurisdiction of incorporation of each Bank Party in the ordinary course of business and consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past practice;
(ne) Other sell, transfer, mortgage, encumber or otherwise dispose of any part of its business or any of its properties or assets to any Person other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract wholly-owned Subsidiary or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness of any Person to any material amendment of, change in Person other than a wholly-owned Subsidiary or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle claims against any Proceeding against itPerson to any Person other than a wholly-owned Subsidiary, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice or pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed, disclosed in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (iiSection 4.2(i)(e) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.Disclosure Letter;
(qf) Other other than in the ordinary course of business consistent with past practice: incur any indebtedness for borrowed money (or modify any of the material terms of any such party’s outstanding indebtedness) other than indebtedness of it or any of its wholly-owned Subsidiaries to it or any of its wholly-owned subsidiaries; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person which is not one of its wholly-owned subsidiaries; or make any loan or advance to any Person which is not one of its wholly-owned subsidiaries;
(g) restructure or make any material change to its investment objectives and policies securities portfolio, its derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(h) other than in the ordinary course of business, terminate, amend, waive or knowingly fail to use reasonable best efforts to enforce, any material provision of any material Contract, other than normal renewals of Contracts without materially adverse changes, additions or deletions of terms; or enter into any Contract that would be required to be disclosed under Section 3.1(k)(B), (D), (E), (G) or (H), or Section 3.2(k)(B), (D), (E), (G) or (H), as publicly disclosedthe case may be, if it were in effect on the date hereof;
(i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction as required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries by Compensation and Benefit Plans and Contracts as in effect as of at the date of this Agreement or applicable Law, (i) increase by more than 20% the aggregate compensation or benefits of any of its current or former officers, directors, employees with annual base compensation in excess of U.S.$350,000 or consultants (for avoidance of doubt, all references to "directors" in this Section 4.2(i)(i) refer to members of its Board of Directors) other Permitted Indebtedness or than in the ordinary course of business consistent with past practice, (ii) cancel become a party to, adopt, terminate, materially amend or commit itself to any material indebtednessCompensation and Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment, severance, change in control, retention, bonus guarantee, collective bargaining or similar agreement or arrangement with or for the benefit of any current or former officer, director, employee with annual base compensation in excess of $350,000 or consultant or (iii) pay or award, or commit to pay or award, any bonuses (other than bonuses in respect of which a provision has been made and contemplated in any of the Bank Parties' yearly or quarterly financial statements prior to the date hereof) or incentive compensation or (iv) grant or accelerate the vesting of any equity-based awards.
(rj) Except settle any Litigation, except for any Litigation involving solely money damages in an amount not greater than $1,000,000 individually, and that does not involve or create an adverse precedent for Litigation that is reasonably likely to be material to it and its Subsidiaries taken as a whole; or agree or consent to the issuance of any Order restricting, or otherwise expressly contemplated affecting in any material respect, its business or operations;
(k) implement or adopt any change in its financial accounting principles, practices or methods, including reserving methodologies, other than as may be required by this AgreementIFRS or Colombian GAAP, merge as applicable, regulatory accounting guidelines (including those passed by the Chilean Superintendency of Banks) or consolidate such party applicable Law, and as concurred to by its independent auditors;
(l) file or amend any material Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability in an amount greater than $2,000,000; make, change or revoke any material Tax election except to the extent consistent with past practice or as required by Law; agree to any extension or waiver of the statute of limitations with respect to assessment or determination of material Taxes, surrender any right to claim a material Tax refund; or change any material method of Tax accounting;
(m) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personthe conditions to the Transactions, or adoptincluding the Chilean Merger set forth in Article 5 not being satisfied on a timely basis except, recommendin each case, propose or announce an intention to as may be required by applicable Law;
(n) adopt a plan of complete or partial liquidation, liquidation or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.reorganization; or
(so) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment agree to take, or adopt any resolutions of the GBDC 3 its Board of Directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited to it by this Section 6.24.2(i).
Appears in 1 contract
Forbearances. During the period from Between the date of this Agreement until the earlier of the Effective Time hereof and the dateClosing, if anyunless Buyer shall otherwise consent in writing, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent Sellers shall not be unreasonably delayed, conditioned nor shall they cause or withheldpermit the Company to:
(ai) Other than pursuant to such party’s dividend reinvestment plan as in effect as amend its articles of incorporation or bylaws; (ii) split, combine or reclassify the date of this Agreement outstanding Shares; or (xiii) in the case of GBDC 3declare, pursuant to capital calls set aside or pay any dividend payable with respect to the GBDC 3 Subscription Agreements Shares; provided, that the Company may distribute cash and (y) in cash equivalents to Sellers at the case discretion of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation Company's Board of Directors;
(i) issue, sell, pledge, dispose of or encumber any additional shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicableof, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquireoptions, any such shares warrants, calls, commitments or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment rights of any dividend or distribution necessary for such party kind to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock of any class; (ii) transfer, lease, license, sell, mortgage, pledge, dispose of or encumber any material assets or incur or modify any material indebtedness or other liability other than in the ordinary and usual course of business; (iii) acquire directly or indirectly by redemption or otherwise any shares of the capital stock of the Company or (iv) authorize, make or commit to make capital expenditures in excess of $50,000 in the aggregate, or make any acquisition of, or investment in, any material assets or any rights, warrants stock or options to acquire, or other securities convertible into, such capital stock.of any other person;
(c) Sellincur any indebtedness for borrowed money, transferexcept for working capital financing in the ordinary and usual course of business consistent with past practice;
(d) grant any severance or termination pay to, leaseor enter into any employment or severance agreement with either (i) any director or officer of the Company or (ii) any other employee of the Company other than in the ordinary and usual course of business; and Seller shall not permit the Company to establish, mortgageadopt, encumber enter into, make any new grants or otherwise dispose awards under or amend, any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any directors, officers or employees of the Company (other than contributions in the ordinary and usual course of business under Employee Plans currently in effect on the date hereof);
(e) settle or compromise any material claims or litigation or, except in the ordinary and usual course of business, modify, amend or terminate any of its assets material Contracts or propertieswaive, except for release or assign any material rights or claims;
(i) salesgrant any increase in compensation in excess of five percent (5%) to any officer or employee whose compensation (base salary plus bonus) for the fiscal year of the Company ended on September 30, transfers2005 exceeded $75,000 or (ii) enter into, leasesor amend in any material respect, mortgages, encumbrances or any Employee Plan;
(i) grant any special conditions with respect to any account receivable other dispositions than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed(e.g., or extended terms), (ii) encumbrances required fail to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt pay any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become account payable on a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than timely basis in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; makepractice, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(liii) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line purchase inventory in excess of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is supplies necessary in the ordinary course of business and consistent with such party’s investment objectives and policies as publicly disclosed and ispast practice, would (iv) ship inventory or should be reflected take any other action designed or having the effect of accelerating or deferring the generation of accounts receivable in such party’s schedule of investments included in its quarterly a manner inconsistent with past practice or annual periodic reports that are filed with the SEC).(v) start up or acquire any new business or product line which is not similar to or directly complementary to any existing business or product line;
(nh) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract settlement with respect to any claim, action, suit, other proceeding or GBDC Material Contract, as applicable, had it been entered into prior investigation of any kind against or relating to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedCompany, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries orofficers, after the Effective Timedirectors, GBDCemployees, GBDC 3or properties, the Surviving Company assets or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.business;
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) paytake any action which would cause, discharge or satisfy voluntarily fail to take any Indebtedness for borrowed moneyaction the failure of which would cause, other than the payment, discharge any representation or satisfaction required pursuant to the terms warranty of outstanding debt of such party or its Consolidated Subsidiaries as Sellers contained in effect as of the date of this Agreement to be breached or other Permitted Indebtedness or (ii) cancel untrue in any material indebtedness.respect;
(rj) Except make any change in any accounting policies or the application thereof except as otherwise expressly contemplated required by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or GAAP and disclosed to Buyer; or
(k) enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention agreement to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, do any of the actions prohibited by this Section 6.2foregoing.
Appears in 1 contract
Forbearances. (i) During the period from the date of this Agreement until through the earlier of the Chilean Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 4.2(i) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2, none of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Bank Parties shall, and neither none of the Bank Parties shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority Consent of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), other Bank Parties (which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other amend its Organizational Documents or enter into a plan of consolidation, merger, share exchange, reorganization or similar business combination (other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (yconsolidations, mergers, share exchanges, reorganizations or similar business combinations solely among its wholly-owned Subsidiaries) or a letter of intent or agreement in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.principle with respect thereto;
(b) except as provided in Section 4.3 (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for for, shares of its capital stock stock, (ii) set a record date or payment date for, make, declare or pay any dividend (iiiother than dividends paid in the ordinary course of business by any of its direct or indirect wholly-owned Subsidiaries to it or any of its other direct or indirect wholly-owned Subsidiaries) purchaseor dividends expressly permitted pursuant to Section 4.3), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exercisable or exchangeable for any shares of its capital stock., (iii) grant or issue any Rights, (iv) issue, sell or otherwise permit to become outstanding any additional shares of capital stock, (v) make any change in any instrument or Contract governing the terms of any of its securities (other than for the purposes of effecting the Transactions) or (v) enter into any Contract with respect to the sale or voting of its capital stock;
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice or pursuant to Contracts in force at the date of this Agreement, and such party’s investment objectives and policies as publicly disclosed; makeother than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, change or revoke make any material Tax election; investment in or settle acquisition of (either by purchase of stock or compromise securities, contributions to capital, property transfers or purchase of any material Tax liability property or refund.assets) any other Person other than its wholly-owned Subsidiaries as of the date of this Agreement;
(ld) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(mi) Enter enter into any new line of business which is not within the Banking Business, (ii) change its lending, investment, underwriting, securitization, servicing, risk and asset liability management and other banking and operating, policies that are material to it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party and its Subsidiaries, taken as a whole, except as required by applicable Law or any regulations or policies imposed on it by any Governmental Authority or (iii) make application for the opening, relocation or closing of its Consolidated Subsidiaries has made any, or will make a debt open, relocate or equity investment that is close any, branch office, loan production office or other significant office or operations facility, other than branches in the jurisdiction of incorporation of each Bank Party in the ordinary course of business and consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past practice;
(ne) Other sell, transfer, mortgage, encumber or otherwise dispose of any part of its business or any of its properties or assets to any Person other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract wholly-owned Subsidiary or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness of any Person to any material amendment of, change in Person other than a wholly-owned Subsidiary or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle claims against any Proceeding against itPerson to any Person other than a wholly-owned Subsidiary, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice or pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed, disclosed in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (iiSection 4.2(i)(e) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.Disclosure Letter;
(qf) Other other than in the ordinary course of business consistent with past practice: incur any indebtedness for borrowed money (or modify any of the material terms of any such party’s outstanding indebtedness) other than indebtedness of it or any of its wholly-owned Subsidiaries to it or any of its wholly-owned subsidiaries; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person which is not one of its wholly-owned subsidiaries; or make any loan or advance to any Person which is not one of its wholly-owned subsidiaries;
(g) restructure or make any material change to its investment objectives and policies securities portfolio, its derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(h) other than in the ordinary course of business, terminate, amend, waive or knowingly fail to use reasonable best efforts to enforce, any material provision of any material Contract, other than normal renewals of Contracts without materially adverse changes, additions or deletions of terms; or enter into any Contract that would be required to be disclosed under Section 3.1(k)(B), (D), (E), (G) or (H), or Section 3.2(k)(B), (D), (E), (G) or (H), as publicly disclosedthe case may be, if it were in effect on the date hereof;
(i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction as required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries by Compensation and Benefit Plans and Contracts as in effect as of at the date of this Agreement or applicable Law, (i) increase by more than 20% the aggregate compensation or benefits of any of its current or former officers, directors, employees with annual base compensation in excess of U.S.$350,000 or consultants (for avoidance of doubt, all references to “directors” in this Section 4.2(i)(i) refer to members of its Board of Directors) other Permitted Indebtedness or than in the ordinary course of business consistent with past practice, (ii) cancel become a party to, adopt, terminate, materially amend or commit itself to any material indebtednessCompensation and Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment, severance, change in control, retention, bonus guarantee, collective bargaining or similar agreement or arrangement with or for the benefit of any current or former officer, director, employee with annual base compensation in excess of $350,000 or consultant or (iii) pay or award, or commit to pay or award, any bonuses (other than bonuses in respect of which a provision has been made and contemplated in any of the Bank Parties’ yearly or quarterly financial statements prior to the date hereof) or incentive compensation or (iv) grant or accelerate the vesting of any equity-based awards.
(rj) Except settle any Litigation, except for any Litigation involving solely money damages in an amount not greater than $1,000,000 individually, and that does not involve or create an adverse precedent for Litigation that is reasonably likely to be material to it and its Subsidiaries taken as a whole; or agree or consent to the issuance of any Order restricting, or otherwise expressly contemplated affecting in any material respect, its business or operations;
(k) implement or adopt any change in its financial accounting principles, practices or methods, including reserving methodologies, other than as may be required by this AgreementIFRS or Colombian GAAP, merge as applicable, regulatory accounting guidelines (including those passed by the Chilean Superintendency of Banks) or consolidate such party applicable Law, and as concurred to by its independent auditors;
(l) file or amend any material Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability in an amount greater than $2,000,000; make, change or revoke any material Tax election except to the extent consistent with past practice or as required by Law; agree to any extension or waiver of the statute of limitations with respect to assessment or determination of material Taxes, surrender any right to claim a material Tax refund; or change any material method of Tax accounting;
(m) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personthe conditions to the Transactions, or adoptincluding the Chilean Merger and the Colombian Merger, recommendset forth in Article 5 not being satisfied on a timely basis except, propose or announce an intention to in each case, as may be required by applicable Law;
(n) adopt a plan of complete or partial liquidation, liquidation or resolutions providing for or authorizing such a liquidation or dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.reorganization; or
(so) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment agree to take, or adopt any resolutions of the GBDC 3 its Board of Directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited to it by this Section 6.24.2(i).
(ii) During the period from the date of this Agreement through the Colombian Acquisition Closing or the Colombian Effective Time, as the case may be, except as set forth in Section 4.2(ii) of its Disclosure Letter, except as expressly contemplated or permitted by this Agreement or as otherwise provided in this Section 4.2(ii), Itaú Colombia shall not, and shall not permit any of its Subsidiaries, and Itaú Parent shall not permit Itaú Colombia or any of the Subsidiaries of Itaú Colombia to, without the prior written Consent of the Corp Group Parties (which Consent shall not be unreasonably withheld or delayed), take any of the actions that would require the consent of Corp Group Parent under Section 2.8 of the Shareholders Agreement.
(iii) Corp Group Parent and Itaú Parent agree that, for the purposes of this Section 4.2, any Subsidiary of any of the Bank Parties in which capital any of the Bank Parties or Bank Parties’ Affiliates or their officers or directors has a participation not lower than 95% shall be considered a wholly owned Subsidiary of such Bank Party.
Appears in 1 contract
Sources: Transaction Agreement (Corpbanca/Fi)
Forbearances. During Without limiting the generality of Section 5.1 above, during the period from the date of this Original Agreement until Date to the earlier of the Dex Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 5.2 of the GBDC 3 SuperMedia Disclosure Schedule or Section 6.2 of the GBDC Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither GBDC 3 or GBDC SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any of its Consolidated Subsidiaries SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, directly or indirectly, without the prior written consent of GBDC 3 Dex or GBDCSuperMedia, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC)applicable, which prior written consent shall not be unreasonably delayedwithheld, conditioned delayed or withheldconditioned:
(a) Other (i) other than pursuant dividends and distributions by a direct or indirect Subsidiary to such party’s dividend reinvestment plan as Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in effect as of the date of this Agreement respect of, or (x) in the case of GBDC 3, pursuant to capital calls enter into any agreement with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDCvoting of, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) split, combine or reclassify any GBDC 3 Voting Debt of its capital stock or GBDC Voting Debtany other of its securities, as applicable, or other voting securities or (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities convertible into or exercisable or exchangeable forany of its Subsidiaries, or any other Rights rights, warrants or options to acquire, acquire any such shares or other securities.securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the Original Agreement Date in accordance with their terms and such Party’s practices as of the Original Agreement Date);
(b) (i) Makeissue, authorizedeliver, declaresell, pay pledge or set aside otherwise encumber or subject to any dividend in respect of, or declare or make any distribution on, Lien any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect ofvoting securities, in lieu of or in substitution for including any restricted shares of its capital stock common stock, or (iii) purchaseany securities convertible into, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, any such shares, voting securities or securities convertible intosecurities, such capital stock.including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the Original Agreement Date in accordance with their terms, and other than the issuance of Newco Common Stock pursuant to the Option (as defined in the Dex Pre-Pack Plan));
(c) Sellamend its certificate of incorporation, transfer, lease, mortgage, encumber bylaws or otherwise dispose other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or propertiesany equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for (i) sales, transfers, leases, mortgages, encumbrances acquisitions of inventory or other dispositions similar assets in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Codepast practice; provided, however, that the foregoing shall not preclude GBDC 3 from declaring prohibit internal reorganizations or paying consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Tax Dividend on Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or before the Closing Date.
otherwise dispose of (i) Incur any Indebtedness for borrowed money of its properties or guarantee assets (including capital stock in any Indebtedness of another Person, except for (iits Subsidiaries) draw-downs with respect to or create any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into security interest in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make such assets or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return properties other than in the ordinary course of business consistent with past practice, or (ii) except as contemplated in the SuperMedia Financing Amendments or the Dex Financing Amendments, any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or Table of Contents penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the Original Agreement Date in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice and or policy, in each case, in effect on the Original Agreement Date, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such party’s investment objectives and policies as publicly disclosed; investment, loan or acquisition;
(j) make, change or revoke any material Tax election; , change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the Original Agreement Date, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) make or incur, or enter into any Contract obligating such Party to incur, any capital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which plan has been made available to the Other Party prior to the Original Agreement Date;
(m) except as required by agreements or instruments in effect on the Original Agreement Date, alter in any material respect, or enter into any commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business entity in which such Party directly or indirectly holds any equity or ownership interest on the Original Agreement Date;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the Original Agreement Date or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any Dex Subsidiary or SuperMedia or any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course Table of Contents of business consistent with past practice, (ii) grant, pay, promise to pay, or enter into any SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, other than the issuance of Newco Common Stock pursuant to the Option (as defined in the Dex Pre-Pack Plan), (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would be a SuperMedia Employment Agreement or Dex Employment Agreement if in effect on the Original Agreement Date), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the Original Agreement Date) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable);
(o) except as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any material Tax liability Action, other than any such payment, discharge, settlement or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that compromise (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, that involves solely money damages in an amount not in excess of $250,000 1,000,000 individually or $2,000,000 in the aggregate (after reduction by any insurance proceeds actually received); aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt any Contract in effect on the Original Agreement Date (copies of which have been provided to the Other Party prior to the Original Agreement Date);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such party Intellectual Property, let lapse, fail to maintain, abandon or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person adopt or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party Party or any of its Consolidated Subsidiaries., other than pursuant to Section 6.17;
(s) With respect fail to GBDC 3maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, enter into any new GBDC 3 Subscription Agreements.assets and business in a form and amount consistent with past practices;
(t) Agree to take, make open any commitment to takematerial new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or adopt file any resolutions application with any Governmental Entity to do any of the GBDC 3 Board foregoing, except for openings, closings, relocations and layoffs in progress on the Original Agreement Date or planned on the Original Agreement Date and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the GBDC BoardDex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, authorizing, any of other than the actions prohibited by this Section 6.2.SuperMedia Stockholder
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC Fourth Street nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDC, as applicable chief financial officer of SBC (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably withheld or delayed, conditioned provided, however, with respect to Section 4.2(i), Section 4.2(s) and Section 4.2(w), if Seacoast shall not have disapproved of Fourth Street’s or withheld:the Bank’s request in writing within two (2) Business Days of receipt of such written request from Fourth Street or the Bank, then such request shall be deemed to be approved by Seacoast):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock (except to redeem any portion of the Debentures which do not convert to shares of Fourth Street Common Stock prior to the Closing Date) or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock except pursuant to the exercise of Fourth Street Equity Awards outstanding as of the date of this Agreement and except pursuant to the conversion of the Debentures, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except as set forth in Section 4.2(g)(iii) of the Company Disclosure Letter, except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as set forth in Section 4.2(k) of the Company Disclosure Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any Fourth Street Stock Plan, except pursuant to Section 1.7, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Liability for Taxes; or make, change or revoke any tax election or change any method of tax accounting, except as required by applicable Law; enter into any “closing agreement” as described in Section 7121 of the Internal Revenue Code (or any similar provision of Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, GAAPor knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude Fourth Street from exercising its rights under Sections 4.5 or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the SEC Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause Fourth Street’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than the Fourth Street Target Consolidated Tangible Shareholders’ Equity;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $500,000 and which is unsecured, or $1,000,000 and which is secured, shall require the written approval of the chief executive officer, chief financial officer or chief credit officer of SNB, which approval or rejection shall be given at least two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would reasonably be expected to materially interfere with, the consummation of the Merger;
(iy) materially delay knowingly take any action that would prevent or materially impede the ability of Merger and the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Lawset forth in the Best Disclosure Schedule or the Hiway Disclosure Schedule, as required the case may be, and except as expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC Best nor Hiway shall, and neither Hiway shall not permit any of its Consolidated Subsidiaries Subsidiary to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheldother:
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case ordinary course of GBDC 3business consistent with past practice, pursuant incur any indebtedness for borrowed money (other than short-term indebtedness incurred to capital calls with respect to refinance short-term indebtedness), assume, guarantee, endorse or otherwise as an accommodation become responsible for the GBDC 3 Subscription Agreements and (y) in the case obligations of GBDCany other individual, Permitted Issuances, issue, deliver, sell corporation or grantother entity, or encumber make any loan or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.advance;
(b) (i) Makeadjust, authorizesplit, declare, pay combine or set aside reclassify any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjustmake, split, combine, reclassify declare or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rightssecurities or obligations convertible into or exchangeable for any shares of its capital stock; (iii) grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock (and no such rights or options shall be granted, except as otherwise agreed in writing by Best and Hiway); or (iv) issue any additional shares of capital stock except pursuant to the exercise of stock options or warrants or options to acquire, the conversion of convertible securities outstanding as of the date of this Agreement or securities convertible into, such capital stock.approved hereunder;
(c) Sellsell, transfer, lease, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or propertiesother entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, past practice or (ii) encumbrances required pursuant to secure Permitted Indebtedness contracts or agreements in force at the date of such party or any of its Consolidated Subsidiaries.this Agreement;
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted for transactions in the ordinary course of business consistent with such party’s past practice or pursuant to contracts or agreements in force at the date of this Agreement, make any material investment objectives and policies as publicly disclosed.either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary;
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into transactions in the ordinary course of business consistent with such party’s investment objectives past practice, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, other than renewals of contracts and policies as publicly disclosed.leases without material adverse changes of terms;
(kf) File increase in any manner the compensation or fringe benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees, or become a party to, amend or commit itself to any material Tax Return pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke accelerate the vesting of any material Tax election; stock options or settle or compromise any material Tax liability or refund.other stock-based compensation;
(lg) Take settle any actionclaim, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against itproceeding involving money damages, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess practice;
(h) take any action that would prevent or impede the Merger from qualifying (i) for "pooling of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); interests" accounting treatment or (ii) would not impose as a reorganization within the meaning of Section 368 of the Code;
(i) amend its Articles of Incorporation or its Bylaws, except as contemplated by this Agreement;
(j) take any material restriction on the conduct of business of it action that is intended or may reasonably be expected to result in any of its Consolidated Subsidiaries or, after representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, GBDC, GBDC 3, the Surviving Company or in any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant conditions to the terms of outstanding debt of such party or its Consolidated Subsidiaries as Merger set forth in effect as of the date Article VII of this Agreement not being satisfied or other Permitted Indebtedness or (ii) cancel in a violation of any material indebtedness.
(r) Except as otherwise expressly contemplated by provision of this Agreement, merge except, in every case, as may be required by applicable law or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personexisting contractual obligations; or
(k) agree to, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to taketo, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, take any of the actions prohibited by this Section 6.25.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by earlier termination of this Agreement, as Previously Disclosed or except as set forth in Section 6.2 of the GBDC 3 Umpqua Disclosure Schedule or Section 6.2 of the GBDC Columbia Disclosure Schedule, as applicableexpressly contemplated or permitted by this Agreement or as required by law, neither GBDC 3 or GBDC Umpqua nor Columbia shall, and neither Umpqua nor Columbia shall permit any of its Consolidated their respective Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable the other party to this Agreement (and the such consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not to be unreasonably delayedwithheld, conditioned or withheld:delayed):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares federal funds borrowings and Federal Home Loan Bank borrowings, in each case with a maturity not in excess of its capital stocksix (6) months, (ii) any GBDC 3 Voting Debt or GBDC Voting Debtdeposits, as applicable, or other voting securities or (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) entry into repurchase agreements, in each case in the ordinary course of business, incur any securities convertible into indebtedness for borrowed money (other than indebtedness of Umpqua or exercisable any of its wholly-owned Subsidiaries to Umpqua or exchangeable forany of its wholly-owned Subsidiaries, on the one hand, or of Columbia or any of its wholly-owned Subsidiaries to Columbia or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Rights to acquireindividual, any such shares corporation or other securities.entity;
(b) (i) Makeadjust, authorizesplit, combine or reclassify any capital stock;
(ii) make, declare, pay or set aside a record date for any dividend in respect ofdividend, or declare or make any other distribution on, any shares of its capital stockor directly or indirectly redeem, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such capital stock.
(conly after the passage of time or the occurrence of certain events) Sell, transfer, lease, mortgage, encumber or otherwise dispose of exchangeable into or exercisable for any shares of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances capital stock or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedequity or voting securities, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companiesexcept, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(kA) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as regular quarterly cash dividends by Umpqua at a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount rate not in excess of $250,000 0.21 per share of Umpqua Common Stock, (B) regular quarterly cash dividends by Columbia at a rate not in the aggregate excess of $0.30 per share of Columbia Common Stock, (after reduction C) dividends paid by any insurance proceeds actually received); (ii) would not impose any material restriction on of the conduct Subsidiaries of business each of it Umpqua and Columbia to Umpqua or Columbia or any of its Consolidated Subsidiaries ortheir wholly-owned Subsidiaries, after respectively, (D) regular distributions on outstanding trust preferred securities in accordance with their terms or (E) the Effective Timeexercise of stock options or the vesting or settlement of equity compensation awards, GBDCin each case, GBDC 3in accordance with past practice and the terms of the applicable award agreements;
(iii) grant any stock options, the Surviving Company stock appreciation rights, performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any person any right to acquire any shares of capital stock or other equity or voting securities of Umpqua or Columbia or any of their respective Consolidated Subsidiaries and (iii) would not admit liabilitySubsidiaries, guilt or fault.
(q) Other other than in the ordinary course case of business consistent Columbia, grants of rights to purchase shares of Columbia Common Stock under the Columbia ESPP in accordance with such party’s investment objectives and policies as publicly disclosedthe terms of thereof; or
(iv) issue, sell, transfer, encumber or otherwise permit to become outstanding any shares of capital stock or voting securities or equity interests or securities convertible (iwhether currently convertible or convertible only after the passage of time of the occurrence of certain events) payor exchangeable into, discharge or satisfy exercisable for, any Indebtedness for borrowed moneyshares of its capital stock or other equity or voting securities, including any securities of Umpqua or Columbia or their respective Subsidiaries, or any options, warrants, or other than the paymentrights of any kind to acquire any shares of capital stock or other equity or voting securities, discharge including any securities of Umpqua or satisfaction required Columbia or their respective Subsidiaries, except pursuant to the terms exercise of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board stock options or the GBDC Board, as applicable, authorizing, any vesting or settlement of the actions prohibited by this Section 6.2.equity compensation awards in accordance with their terms;
Appears in 1 contract
Forbearances. During Without limiting the generality of Section 5.1 above, during the period from the date of this Original Agreement until Date to the earlier of the Dex Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Time, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 5.2 of the GBDC 3 SuperMedia Disclosure Schedule or Section 6.2 of the GBDC Dex Disclosure Schedule, as applicable, as required by applicable Law, or as expressly contemplated or permitted by this Agreement, neither GBDC 3 or GBDC SuperMedia nor Dex shall, and neither SuperMedia nor Dex shall permit any of its Consolidated Subsidiaries SuperMedia Subsidiary or Dex Subsidiary, as applicable, to, directly or indirectly, without the prior written consent of GBDC 3 Dex or GBDCSuperMedia, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC)applicable, which prior written consent shall not be unreasonably delayedwithheld, conditioned delayed or withheldconditioned:
(a) Other (i) other than pursuant dividends and distributions by a direct or indirect Subsidiary to such party’s dividend reinvestment plan as Party or to any direct or indirect wholly owned Subsidiary of such Party, declare, set aside or pay any dividends on, make any other distributions in effect as of the date of this Agreement respect of, or (x) in the case of GBDC 3, pursuant to capital calls enter into any agreement with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDCvoting of, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) split, combine or reclassify any GBDC 3 Voting Debt of its capital stock or GBDC Voting Debtany other of its securities, as applicable, or other voting securities or (iii) except as described in Section 2.6(d) or 2.7(e), accelerate the vesting of any options, warrants or other rights of any kind to acquire shares of capital stock or (iv) purchase, redeem or otherwise acquire any shares of its capital stock or other securities convertible into or exercisable or exchangeable forany of its Subsidiaries, or any other Rights rights, warrants or options to acquire, acquire any such shares or other securities.securities (other than the withholding of shares of common stock to satisfy the exercise price or Tax withholding upon the exercise of stock options, vesting of restricted shares or settlement of stock units or stock appreciation rights, in each case that are outstanding as of the Original Agreement Date in accordance with their terms and such Party’s practices as of the Original Agreement Date);
(b) (i) Makeissue, authorizedeliver, declaresell, pay pledge or set aside otherwise encumber or subject to any dividend in respect of, or declare or make any distribution on, Lien any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect ofvoting securities, in lieu of or in substitution for including any restricted shares of its capital stock common stock, or (iii) purchaseany securities convertible into, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, any such shares, voting securities or securities convertible intosecurities, such capital stock.including any stock options and unit awards (other than the issuance of its common stock upon the exercise of stock options, vesting of restricted shares or settlement of stock units, in each case that are outstanding as of the Original Agreement Date in accordance with their terms, and other than the issuance of Newco Common Stock pursuant to the Option (as defined in the Dex Pre-Pack Plan));
(c) Sellamend its certificate of incorporation, transfer, lease, mortgage, encumber bylaws or otherwise dispose other comparable organizational documents or the organizational documents of any of its Subsidiaries;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing any assets or propertiesany equity securities of, or by any other manner, any business or any Person, or otherwise acquire or agree to acquire any assets, except for (i) sales, transfers, leases, mortgages, encumbrances acquisitions of inventory or other dispositions similar assets in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Codepast practice; provided, however, that the foregoing shall not preclude GBDC 3 from declaring prohibit internal reorganizations or paying consolidations;
(e) sell, assign, transfer, lease, license, mortgage or otherwise encumber or subject to any Tax Dividend on Lien (other than Liens in connection with any Indebtedness permitted under Section 5.2(f)), or before the Closing Date.
otherwise dispose of (i) Incur any Indebtedness for borrowed money of its properties or guarantee assets (including capital stock in any Indebtedness of another Person, except for (iits Subsidiaries) draw-downs with respect to or create any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into security interest in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make such assets or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return properties other than in the ordinary course of business consistent with past practice, or (ii) except as contemplated in the SuperMedia Financing Amendments or the Dex Financing Amendments, any SuperMedia IP owned by SuperMedia or the SuperMedia Subsidiaries or any Dex IP owned by Dex or the Dex Subsidiaries, as applicable, except for non-exclusive licenses of Intellectual Property made in the ordinary course of business consistent with past practice;
(f) except for borrowings under existing credit facilities (or renewals, extensions or replacements therefor that do not increase the aggregate amount available thereunder and that do not provide for any termination fees or penalties, prohibit pre-payments or provide for any pre-payment penalties, or contain any like provisions limiting or otherwise affecting the ability of such Party or its applicable Subsidiaries or successors from terminating or pre-paying such facilities, or contain financial terms less favorable, in the aggregate, than existing credit facilities, and as they may be so renewed, extended or replaced) that are incurred in the ordinary course of business consistent with past practice, or for borrowings or other lines of credit or refinancing of indebtedness outstanding on the Original Agreement Date in additional amounts not to exceed $5,000,000, or Indebtedness owed by any wholly owned Subsidiary to such Party or any other wholly owned Subsidiary of such Party, or as contemplated by Section 6.14, incur, redeem, prepay, defease, cancel, or modify the terms of, any Indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse, or otherwise become responsible for the obligations of any Person (other than any of its wholly owned Subsidiaries), or make any loans or advances to any Person other than to its wholly owned Subsidiaries or as a result of ordinary advances and reimbursements to employees;
(g) change in any material respect its accounting methods (or underlying assumptions), principles or practices affecting its assets, liabilities or business, including any reserving, renewal or residual method, practice and or policy, in each case, in effect on the Original Agreement Date, except as required by changes in GAAP or regulatory accounting principles;
(h) enter into any new line of business or change in any material respect the operating, asset liability, investment or risk management or other similar policies of it or any of its Subsidiaries;
(i) make any investment in or loan to any Person in excess of $5,000,000 in the aggregate, whether by purchase of stock or securities, contributions to capital, property transfers, or entering into binding agreements with respect to any such party’s investment objectives and policies as publicly disclosed; investment, loan or acquisition;
(j) make, change or revoke any material Tax election; , change an annual Tax accounting period, adopt or settle or compromise change any material Tax liability accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, settle any material Tax claim or refund.assessment or surrender any right to claim a refund of a material amount of Taxes;
(k) except as expressly permitted by any other provision of this Section 5.2 or as set forth in the SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, amend, terminate or waive any material provision of any SuperMedia Material Contract, SuperMedia IP Contract, Dex Material Contract or Dex IP Contract, as applicable (the “Material Contracts”), or enter into or renew any agreement or contract or other binding obligation that is or, if it were on place as of the Original Agreement Date, would be a Material Contract (other than normal renewals of such Contracts without materially adverse changes, additions or deletions of terms);
(l) Take any actionmake or incur, or knowingly fail enter into any Contract obligating such Party to take incur, any actioncapital or operating expenditures in excess of $5,000,000 in the aggregate, except for capital or operating expenditures contemplated in such party’s existing plan for annual capital or operating expenditures for 2012, which action or failure plan has been made available to act is reasonably likely the Other Party prior to cause such party to fail to qualify or not be subject to taxation as a RIC.the Original Agreement Date;
(m) Enter except as required by agreements or instruments in effect on the Original Agreement Date, alter in any material respect, or enter into any new line of commitment to alter in any material respect, any material interest in any corporation, association, joint venture, partnership or business (it being understood that this prohibition does not apply to any new or existing portfolio companies entity in which such party Party directly or indirectly holds any equity or ownership interest on the Original Agreement Date;
(n) except as required by the terms of SuperMedia Benefit Plans or SuperMedia Employment Agreements, or the terms of Dex Benefit Plans or Dex Employment Agreements, as applicable, as in effect on the Original Agreement Date or as required by applicable Law or as provided by this Agreement, (i) grant or pay to any current or former director, officer, employee or consultant of Dex or any of its Consolidated Subsidiaries has made Dex Subsidiary or will make a debt SuperMedia or equity investment that is any SuperMedia Subsidiary any increase in compensation, except for salary or wage increases in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and ispast practice, would (ii) grant, pay, promise to pay, or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract SuperMedia Benefit Plan or SuperMedia Employment Agreement or Dex Benefit Plan or Dex Employment Agreement (as applicable) to pay, to any current or former director, officer, employee, consultant or service provider of SuperMedia or any SuperMedia Subsidiary or Dex or Dex Subsidiary (as applicable) any severance or termination pay or any increase in severance or termination pay, (iii) increase the compensation or benefits provided under any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan or Dex Employment Agreement, (iv) enter into or modify the terms of any equity-based award granted under any SuperMedia Stock Plan or Dex Stock Plan, (v) make any discretionary contributions or payments with respect to any SuperMedia Benefit Plan, SuperMedia Employment Agreement, Dex Benefit Plan, or Dex Employment Agreement to any trust or other funding vehicle, other than the issuance of Newco Common Stock pursuant to the Option (as defined in the Dex Pre-Pack Plan), (vi) accelerate the payment or vesting of any payment or benefit provided or to be provided to any director, officer, employee or consultant of SuperMedia or any SuperMedia Subsidiary or Dex or any Dex Subsidiary or otherwise pay any amounts not due such individual, (vii) enter into any new or amend or modify any existing SuperMedia Employment Agreement or Dex Employment Agreement (or agreement that would otherwise constitute be a GBDC 3 Material Contract SuperMedia Employment Agreement or GBDC Material ContractDex Employment Agreement if in effect on the Original Agreement Date), other than employment agreements for new hires with total compensation not to exceed $300,000, (viii) establish any new or amend or modify any existing SuperMedia Benefit Plans or Dex Benefit Plan (or plans that would be a SuperMedia Benefit Plan or Dex Benefit Plan if in effect on the Original Agreement Date) or (ix) establish, adopt or enter into any collective bargaining agreement other than a renewal of or successor to an existing collective bargaining agreement on terms no less favorable to SuperMedia or Dex (as applicable, had it been entered into prior to the date of this Agreement.);
(o) Other than except as set forth in the ordinary course of business consistent with SuperMedia Disclosure Schedule or the Dex Disclosure Schedule, pay, discharge, settle or compromise any Action, other than any such party’s investment objectives and policies as publicly disclosedpayment, terminatedischarge, cancel, renew settlement or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that compromise (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, that involves solely money damages in an amount not in excess of $250,000 1,000,000 individually or $2,000,000 in the aggregate (after reduction by any insurance proceeds actually received); aggregate, and that does not create binding precedent for other pending or potential Actions, or (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt any Contract in effect on the Original Agreement Date (copies of which have been provided to the Other Party prior to the Original Agreement Date);
(p) take any action, or knowingly fail to take any action within its control, which action or failure to act would be reasonably expected to prevent the Mergers from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code;
(q) except in the reasonable business judgment of the holder of such party Intellectual Property, let lapse, fail to maintain, abandon or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.applied for, patented or registered SuperMedia IP owned by SuperMedia or any SuperMedia Subsidiary or any registered Dex IP owned by Dex or any Dex Subsidiary;
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person adopt or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party Party or any of its Consolidated Subsidiaries., other than pursuant to Section 6.17;
(s) With respect fail to GBDC 3maintain in full force and effect the material insurance policies covering such Party and its Subsidiaries and their respective properties, enter into any new GBDC 3 Subscription Agreements.assets and business in a form and amount consistent with past practices;
(t) Agree to take, make open any commitment to takematerial new offices or facilities or relocate or close any material existing offices or facilities or implement any layoffs implicating the WARN Act, or adopt file any resolutions application with any Governmental Entity to do any of the GBDC 3 Board foregoing, except for openings, closings, relocations and layoffs in progress on the Original Agreement Date or planned on the Original Agreement Date and disclosed in Section 5.2(t) of the SuperMedia Disclosure Schedule or the GBDC BoardDex Disclosure Schedule, as applicable;
(u) except as required by applicable Law, convene any regular or special meeting (or any adjournment thereof) of the stockholders of SuperMedia or Dex, as applicable, authorizingother than the SuperMedia Stockholder Meeting or the Dex Stockholder Meeting, or enter into any Contract, understanding or arrangement with respect to the voting of capital stock of SuperMedia or Dex;
(v) take any action that is intended or is reasonably likely to result in any of the conditions to the Mergers set forth in Article VII not being satisfied or in a violation of any provision of this Agreement; or
(w) commit or agree to take any of the actions prohibited contemplated by this Section 6.2Sections 5.2(a) to (v) above.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of 4.2, the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither Company shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 the chief executive officer or GBDC, as applicable chief financial officer of SBC (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayedwithheld, conditioned or withheld:delayed):
(a) Other than pursuant amend or propose to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, other than the declaration and payment of dividends not greater than $0.05 per share per calendar quarter to the extent consistent with past practice, (ciii) Sellissue or otherwise permit to become outstanding, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock or Rights, other than (x) issuances of Holdings Common Stock upon the exercise of Holdings Stock Options or Holdings Warrants in existence on the date hereof pursuant to their terms, or (y) issuances of Holdings Common Stock pursuant to the Holdings ESPP as expressly permitted in Section 2.5(b); or (iv) make any change in any instrument or Contract governing the terms of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.securities;
(dc) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s practice, or permitted by this Agreement, make any investment objectives and policies as publicly disclosed; make(either by purchase of stock or securities, change contributions to capital, property transfers, or revoke purchase of any material Tax election; property or settle or compromise assets) in any material Tax liability or refund.other Person;
(li) Take any action, charge off (except as may otherwise be required by law or knowingly fail to take any action, which action by regulatory authorities or failure to act is reasonably likely to cause such party to fail to qualify by GAAP) or not be subject to taxation as a RIC.
sell (m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is except in the ordinary course of business consistent with such party’s investment objectives and policies past practices) any of its portfolio of Loans, or (ii) sell any asset held as publicly disclosed and isother real estate or other foreclosed assets for an amount that exceeds 10% or $50,000, would whichever is greater, less than its book value, except that this provision shall not be applicable to resolving the taking of any real estate by any Governmental Authority by eminent domain proceedings or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).litigation;
(ne) Other terminate or allow to be terminated any of the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of substantial value or discharge or satisfy any material noncurrent liability;
(f) enter into any new line of business, or change in any material respect its lending, investment, underwriting, risk and asset liability management or other banking and operating policies, except as required by applicable Laws or any policies imposed on it by any Governmental Authority;
(g) except in the ordinary course of business consistent with past practice: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant, a license to, any of its material Intellectual Property;
(h) other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practice, enter into incur any Contract indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date for purposes of this Agreement.Section 4.2(h), “short-term” shall mean maturities of six (6) months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(oi) Other other than purchases of investment securities in the ordinary course of business consistent with past practice, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any material Contract other than normal renewals of Contracts without materially adverse changes of terms, or otherwise amend or modify any material Contract;
(k) other than as required by Benefit Plans and Contracts as in effect at the date of this Agreement, (i) increase in any manner the compensation or fringe benefits of any of its officers, employees or directors, whether under a Benefit Plan or otherwise, except for merit based or promotion based increases in annual base salary or wage rate for employees (other than directors or executive officers) in the ordinary course of business consistent with past practice, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such party’s investment objectives officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement with or for the benefit of any officer, employee or director, (iv) accelerate the vesting of, or the lapsing of restrictions with respect to, Rights pursuant to any Holdings Stock Plan, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and policies as publicly disclosedannual incentive compensation that is reasonably anticipated to exceed $125,000;
(l) commence, terminate, cancel, renew settle or agree to settle any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against itLitigation, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount that (i) involves only the payment of money damages not in excess of $250,000 50,000 individually or $200,000 in the aggregate (after reduction by any insurance proceeds actually received); aggregate, (ii) would does not impose involve the imposition of any material restriction on equitable relief on, or the conduct admission of business of it wrongdoing by, Holdings or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries applicable Subsidiary thereof and (iii) would not admit liabilitycreate precedent for claims that are reasonably likely to be material to Holdings or any of its Subsidiaries, guilt or, after the Closing, Seacoast or fault.any of its Subsidiaries;
(qm) Other revalue any of its or its Subsidiaries’ assets or change any method of accounting or accounting practice used by it or any of its Subsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business consistent with such party’s investment objectives and policies past practice; settle or compromise any Tax Liability; or make, change or revoke any Tax election or change any method of Tax accounting, except as publicly disclosedrequired by applicable Law; enter into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of state, local or foreign Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(io) paychange its fiscal or Tax year;
(p) knowingly take, discharge or satisfy knowingly omit to take, any Indebtedness for borrowed money, other than action that is reasonably likely to result in any of the payment, discharge or satisfaction required pursuant conditions to the terms Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(p) shall preclude Holdings from exercising its rights under Sections 4.5 or 4.12;
(q) merge or consolidate it or any of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or with any other Permitted Indebtedness or (ii) cancel any material indebtedness.Person;
(r) Except as otherwise expressly contemplated by acquire assets outside of the ordinary course of business consistent with past practice from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(r) of the Company Disclosure Letter;
(s) enter into any Contract that would have been required to be disclosed in Section 3.2(k) of the Company Disclosure Letter had it been entered into prior to the execution of this Agreement;
(t) make any changes in the mix, merge rates, terms or consolidate such party maturities of the Bank’s deposits or other Liabilities, except in a manner and pursuant to policies consistent with past practice and competitive factors in the market place; open any new branch or deposit taking facility; or close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its Consolidated Subsidiaries with Affiliates, would exceed its applicable regulatory lending limits; make any Person Loans, or enter into any commitments to make Loans, which vary other similar extraordinary corporate transaction than in immaterial respects from its written Loan policies, a true and correct copy of which policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or Loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of Loans currently in its Loan portfolio; provided further that from the date hereof, any Personnew individual Loan or new extension of credit in excess $500,000 and which is unsecured, or adopt$1 million and which is secured, recommendshall require the written approval (which shall not be unreasonably withheld, propose conditioned or announce an intention delayed) of the chief executive officer or chief credit officer of SNB, which approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to such individual;
(v) adopt or enter into a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization reorganization;
(w) renew or enter into any non-compete, exclusivity, non-solicitation or similar agreement that would restrict or limit, in any material respect, the operations of such party the Company or any of its Consolidated Subsidiaries or, after the Effective Time, Holdings or any of its Subsidiaries.;
(sx) With waive any material benefits of, or agree to modify in any adverse respect, or fail to enforce, or consent to any matter with respect to GBDC 3which its consent is required under, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party;
(y) engage in (or modify in a manner adverse to the Company or its Subsidiaries) any transactions (except for any ordinary course banking relationships permitted under applicable Law) with any Affiliate or any director or officer thereof (or any Affiliate or immediate family member of any such Person or any Affiliate of such Person’s immediate family members);
(z) enter into any new GBDC 3 Subscription Agreements.lease of real property or amend the terms of any existing lease of real property;
(taa) Agree incur or commit to takeincur any capital expenditure or authorization or commitment with respect to them that, make in the aggregate is in excess of $50,000, except as disclosed in the annual business plan or budget previously disclosed to Seacoast;
(bb) take any commitment action that at the time of taking such action is reasonably likely to takeprevent, or adopt any resolutions would materially interfere with, the consummation of the GBDC 3 Board Merger;
(cc) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the GBDC Board, Merger from qualifying as applicable, authorizing, a “reorganization” within the meaning of Section 368(a) of the Code; or (dd) agree or commit to take any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until to the earlier of the Effective Time and or the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by termination of this Agreement, as Previously Disclosed or and except as set forth in Section 6.2 7.2 of the GBDC 3 Company Disclosure Schedule or Section 6.2 of Memorandum, the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shallCompany shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable Sterling (and the consent Company shall provide Sterling with prompt notice of a majority of any events referred to in this Section 7.2 occurring after the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheld:date hereof):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem or otherwise acquire, any shares of its capital stock or any rights, warrants or options to acquire, or securities convertible into, such capital stock.
(c) Sell, transfer, lease, mortgage, encumber or otherwise dispose of any of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness indebtedness of such party the Company or any of its Consolidated Subsidiaries.
(d) Acquire or agree Subsidiaries to acquire all the Company or any portion of the assets, business or properties its Subsidiaries; it being understood and agreed that incurrence of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted indebtedness in the ordinary course of business consistent with such party’s investment objectives shall include, without limitation, the creation of deposit liabilities, purchases of federal funds, and policies sales of certificates of deposit), assume, guarantee, endorse or otherwise as publicly disclosed.
(e) Amend an accommodation become responsible for the GBDC 3 Charter or the GBDC 3 Bylaws (in the case obligations of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that wouldPerson, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies loan or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return advance other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosedprudent banking practices;
(b) adjust, split, combine or reclassify any capital stock; make, change declare or revoke pay any material Tax electiondividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, other than distributions from PB Nevada and the Bank to the Company and quarterly dividends to the shareholders of the Company consistent with past practice not exceeding $1.58 per share for each quarterly dividend payable on July 15, 2005 and October 15, 2005 and quarterly thereafter until consummation of the transactions contemplated by this Agreement, grant any stock options or stock awards, or grant any Person any right to acquire any shares of its capital stock; or settle issue any additional shares of capital stock, or compromise any material Tax liability securities or refund.obligations convertible into or exchangeable for any shares of its capital stock;
(lc) Take any actionsell, transfer, mortgage, encumber or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line otherwise dispose of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made properties or will make a debt assets to any Person, or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew release or agree assign any indebtedness to such Person or any material amendment of, change in or waiver under claims held by any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against itsuch Person, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s prudent banking practices or pursuant to contracts or agreements in force at the date of this Agreement;
(d) make any material investment objectives and policies as publicly disclosed(other than trades in investment securities in the ordinary course) either by purchase of stock or securities, in an amount not contributions to capital, property transfers, or purchase of any property or assets of any other Person;
(e) enter into, terminate or fail to exercise any material right under, any contract or agreement involving annual payments in excess of $250,000 10,000 and which cannot be terminated without penalty upon 30 days’ notice, or make any change in, or extension of (other than automatic extensions) any of its leases or contracts involving annual payments in excess of $10,000 and which cannot be terminated without penalty upon 30 days’ notice;
(f) make, renegotiate, renew, increase, extend or purchase any loan, lease (credit equivalent), advance, credit enhancement or other extension of credit, except in conformity with existing lending practices of the aggregate Company in amounts not to exceed the Bank’s lending limit to any individual borrower;
(after reduction by g) make, renegotiate, renew, increase, extend or purchase any insurance proceeds actually receivedloan, lease (credit equivalent); (ii) would not impose any material restriction , advance, credit enhancement or other extension of credit underwritten based on no verification of income or loans commonly known or referred to as “no documentation loans,” or loans, advances or commitments to directors, officers or other affiliated parties of the conduct of business of it Company or any of its Consolidated Subsidiaries orsubsidiaries;
(h) except as contemplated by Section 8.19 of this Agreement, after modify the Effective Time, GBDC, GBDC 3, terms of any Company Benefit Plan (including any severance pay plan) or increase or modify in any manner the Surviving Company compensation or fringe benefits of any of their respective Consolidated Subsidiaries its Employees (including, without limitation, entering into any commitment to pay any “stay bonuses” or similar benefits) or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, pay any bonuses, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee other than routine adjustments in compensation and (iii) would not admit liability, guilt or fault.
(q) Other than fringe benefits in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practice or accelerate the vesting of any stock options or other stock-based compensation, provided, that the Company may pay accrued bonuses in an amount not to exceed $151,000 through June 30, 2005 plus an additional $26,000 per month from July 1, 2005 through the earlier to occur of (i) payDecember 31, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or 2005 and (ii) cancel any material indebtednessthe Closing Date.
(ri) Except as otherwise expressly contemplated by settle any claim, action or proceeding involving the payment of money damages in excess of $10,000;
(j) amend its Articles of Incorporation or its bylaws;
(k) fail to maintain its Regulatory Agreements, material Authorizations or to file in a timely fashion all federal, state, local and foreign Tax Returns;
(l) make any capital expenditures of more than $10,000 individually or $50,000 in the aggregate;
(m) fail to maintain or administer each Company Benefit Plan in accordance with applicable Law or timely make all contributions or accruals required thereunder in accordance with GAAP;
(n) 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 at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article X not being satisfied or in a violation of any provision of this Agreement, merge except, in every case, as may be required by applicable law;
(o) change any methods or consolidate such party policies of accounting from those used in the Company Financial Statements;
(p) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company or any of its Consolidated Subsidiaries with Subsidiaries, surrender any Person right to claim a refund of Taxes, consent to any extension or enter into waiver of the limitation period applicable to any other similar extraordinary corporate transaction with any Person, Tax claim or adopt, recommend, propose or announce an intention assessment relating to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party the Company or any of its Consolidated Subsidiaries., or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Company or any of its Subsidiaries for any period ending after the Closing Date or decreasing any Tax attribute of the Company or any of its Subsidiaries existing on the Closing Date; or
(sq) With respect to GBDC 3agree, enter into or make any new GBDC 3 Subscription Agreements.
(t) Agree commitment, to take, make any commitment to take, in writing or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizingotherwise, any of the actions prohibited by described in clauses (a) through (o) of this Section 6.27.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable4.2, neither GBDC 3 or GBDC NorthStar nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDC, as applicable chief financial officer of SBC (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rightssecurities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, warrants or options to acquire(iii) grant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, guarantee, encumber, or securities convertible intoauthorize the issuance, such sale, pledge, disposition, grant, transfer, guarantee or encumbrance of, any shares of its capital stock.stock except pursuant to the exercise of NorthStar Equity Awards outstanding as of the date of this Agreement, or (v) make any change in any instrument or Contract governing the terms of any of its securities;
(c) Sellother than in the ordinary course of business or consistent with past practice or permitted by this Agreement, transfermake any investment (either by purchase of stock or securities, leasecontributions to capital, mortgageproperty transfers, encumber or otherwise dispose purchase of any of its assets property or properties, except for assets) in any other Person;
(d) (i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any NorthStar Stock Plan, except pursuant to Section 1.7, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Tax Liability; or make, change or revoke any Tax election or change any method of Tax accounting, except as required by applicable Law; enter into any “closing agreement” as described in Section 7121 of the Internal Revenue Code (or any similar provision of state, GAAPlocal or foreign Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the SEC conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude NorthStar from exercising its rights under Sections 4.5 or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) the Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause NorthStar’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than the NorthStar Target Consolidated Tangible Shareholders’ Equity;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $500,000 and which is unsecured, or $1 million and which is secured, shall require the written approval of the chief executive officer, chief financial officer or chief credit officer of SNB, which approval or rejection shall be given at least two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would reasonably be expected to materially interfere with, the consummation of the Merger;
(iy) materially delay knowingly take any action that would prevent or materially impede the ability of Merger and the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC D▇▇▇▇▇▇▇ nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDCchief financial officer of SBC (or, as applicable (and with respect to Section 4.2(u) or 4.2(w), the consent chief credit officer or chief lending officer of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDCSBC), which prior written consent shall not be unreasonably delayedwithheld or delayed provided, conditioned however, that with respect to Section 4.2(i) and Section 4.2(s), if Seacoast shall not have disapproved of D▇▇▇▇▇▇▇’▇ or withheldthe Bank’s written request in writing within five (5) Business Days of receipt of such written request from D▇▇▇▇▇▇▇ or the Bank, then such request shall be deemed to be approved by Seacoast:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as set forth in Section 4.2(k) of the Company Disclosure Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any D▇▇▇▇▇▇▇ Stock Plan, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) make, change or revoke any tax election; adopt or change any tax accounting method; file any amended Tax Return; settle or compromise any Liability for Taxes; enter into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of applicable Law); surrender any right to claim a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, GAAPthat nothing in this Section 4.2(o) shall preclude D▇▇▇▇▇▇▇ from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the SEC Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause D▇▇▇▇▇▇▇’▇ Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than $104.539 million at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $500,000 and which is unsecured, or $3.0 million and which is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would materially interfere with, the consummation of the Merger;
(y) take any action, or refrain from taking any action, where such act or failure to act could reasonably be expected to (i) materially delay prevent either the Merger or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of 4.2, the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither Company shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 the chief executive officer or GBDC, as applicable chief financial officer of SBC (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayedwithheld, conditioned or withheld:delayed):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock except pursuant to the exercise of the Company Equity Awards outstanding as of the date of this Agreement, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(d) (i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) except as set forth in Section 4.2(k) of the Company Disclosure Letter and other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any the Company Stock Plan, except pursuant to Section 1.6, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated Subsidiaries.
(f) Implement its assets or adopt change any material change in its Tax method of accounting or financial accounting principles, practices or methodspractice used by it, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Liability for Taxes; or make, change or revoke any tax election or change any method of tax accounting, except as required by applicable Law; enter into any “closing agreement” as described in Section 7121 of the Internal Revenue Code (or any similar provision of Law); surrender any claim for a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect to Taxes;
(o) knowingly take, GAAPor knowingly omit to take, any action that is reasonably likely to result in any of the SEC conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude the Company from exercising its rights under Sections 4.5 or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause the Company’s Consolidated Tangible Shareholders’ Equity to be less than $14,104,000 at the Effective Time;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Company from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $250,000 and which is unsecured, or $500,000 and which is secured, shall require the written approval of the chief executive officer, chief financial officer or chief credit officer of SNB, which approval shall not be unreasonably conditioned, delayed or withheld, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would reasonably be expected to materially interfere with, the consummation of the Merger;
(iy) materially delay knowingly take any action that would prevent or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule4.2, as applicable, neither GBDC 3 or GBDC shall, and neither Raindance shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent Consent of GBDC 3 or GBDC, as applicable West (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent Consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares of amend its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, Organizational Documents or any other Rights to acquire, any such shares indemnity agreements with its directors or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend, or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rightssecurities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, warrants or options to acquire(iii) grant any Rights, (iv) except for Permitted Issuances, issue, sell, pledge, dispose of, grant, transfer, lease, license, guarantee, encumber, or securities convertible intoauthorize the issuance, such sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock., or (v) make any change in any instrument or Contract governing the terms of any of its securities;
(c) Sellother than short-term investments in the ordinary course of business in connection with its treasury or cash management function or pursuant to Contracts in force at the date of or permitted by this Agreement, make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(d) enter into any new line of business, or materially change its operating policies that are material to it, except as required by applicable Law;
(e) sell, transfer, lease, mortgage, encumber or otherwise dispose of any material part of its assets or properties, except for (i) sales, transfers, leases, mortgages, encumbrances or other dispositions in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire material properties or assets to any Person, or otherwise create or incur any material Lien on its assets, or cancel, release or assign any indebtedness of any Person or any claims against any Person or transfer, agree to transfer or grant of, or agree to acquire all or grant a license to, any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investmentsits material Intellectual Property, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required by applicable Law, GAAP, the SEC or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay the sale, transfer or materially impede the ability other disposition of the parties to consummate the Transactions obsolete, worn-out or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than unneeded equipment in the ordinary course of business consistent with past practice or the grant of non-exclusive out-licenses in connection with ordinary revenue transactions, (ii) as security for any indebtedness permitted by Section 4.2(f), or (ii) pursuant to Contracts in force as of the date of this Agreement and such party’s investment objectives and policies as publicly disclosed; make, change or revoke disclosed in Section 4.2(e) of its Disclosure Letter;
(f) incur any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail amount of indebtedness for borrowed money other than short-term indebtedness incurred to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business refinance short-term indebtedness (it being understood that for purposes of this prohibition does not apply Section 4.2(f), "short-term" shall mean maturities of six months or less) and other than borrowings pursuant to existing credit facilities or pursuant to any new modifications, renewals or existing portfolio companies in which replacements of such party credit facilities so long as the maximum aggregate permitted borrowings for such modifications, renewals or replacements are not increased and do not increase or create any prepayment penalties or premiums, and other than with respect to normal course expense reimbursement commitments to officers, directors and employees; assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of its Consolidated Subsidiaries has made any Person; make any loan, capital contribution or will make a debt or equity investment that is advance to any Person (other than travel, business expense and similar advances to employees in the ordinary course of business consistent with past practice); or grant credit to any customer, distributor or supplier of it or any of its Subsidiaries on terms or in amounts materially more favorable than had been extended to any such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected Person in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).past;
(ng) Other than amend (except in the ordinary course a manner favorable to Raindance), terminate or waive any material provision of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would is filed as an exhibit to its SEC Reports or that is listed in Section 3.3(l) of its Disclosure Letter or that is otherwise constitute material to its business, other than (x) in connection with normal renewals of Contracts without materially adverse changes of terms, (y) in connection with the scheduled expiration of a GBDC 3 Material Contract Contract's term or GBDC Material Contract(z) with respect to Contracts with customers, as applicable, had it been entered into prior to the date any amendments or waivers of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled payment provisions in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not to exceed $5,000 in excess of any one case or $250,000 25,000 in the aggregate during any 30 day period;
(after reduction h) other than as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as disclosed in Section 4.2(h) of its Disclosure Letter, (i) increase in any insurance proceeds actually received); manner the compensation or fringe benefits of any of its officers, employees or directors, (ii) would pay any pension or retirement allowance not impose required by any material restriction on the conduct of business of it existing Benefit Plan or Contract to any of its Consolidated Subsidiaries orsuch officers, after the Effective Timeemployees or directors, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement with or for the benefit of any officer, employee or director, other than: (A) standard offer letters in connection with hiring at-will employees not admit liability, guilt or fault.
otherwise prohibited by Section 4.2(i); and (qB) Other than Contracts in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practice under existing Benefit Plans to the extent not otherwise prohibited by this Section 4.2, or (iv) accelerate the vesting of, or the lapsing of restrictions with respect to, Rights pursuant to any Raindance Stock Plan;
(i) pay, discharge or satisfy hire any Indebtedness for borrowed money, employee (i) other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness on an at-will basis or (ii) cancel with annual compensation (including base salary and bonus opportunity) of $200,000 or more;
(j) settle or compromise any material indebtedness.
Litigation, other than (rx) Except as otherwise expressly contemplated by in connection with enforcing its rights under this Agreement, merge or consolidate such party (y) for the routine collection of bills in the ordinary course of business consistent with past practice;
(k) revalue any of its or any of its Consolidated Subsidiaries with Subsidiaries' assets or change any Person method of accounting or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party accounting practice used by it or any of its Consolidated Subsidiaries (including changes with respect to extending trade receivables or making any changes to its or its Subsidiaries.' receivables write-off policies or changing its or its Subsidiaries' payables cycle policies), other than changes required by GAAP and other than changes which would not have a material impact on Raindance or its Subsidiaries;
(sl) With respect to GBDC 3file or amend any Tax Return except in the ordinary course of business; settle or compromise any material Tax Liability; or make, enter into change or revoke any new GBDC 3 Subscription Agreements.material Tax election or change any method of Tax accounting, except as required by applicable Law;
(tm) Agree merge or consolidate it or any of its Subsidiaries with any other Person, except for any such transactions among its wholly owned Subsidiaries that are not obligors or guarantors of third party indebtedness;
(n) acquire assets or spend or commit to take, make any commitment to take, or adopt any resolutions spend amounts on capital expenditures in exceess of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any amounts set forth in Section 4.2(n) of the actions prohibited by this Section 6.2.Disclosure Letter;
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by earlier termination of this Agreement, as Previously Disclosed or except as set forth in Section 6.2 of the GBDC 3 Umpqua Disclosure Schedule or Section 6.2 of the GBDC Columbia Disclosure Schedule, as applicableexpressly contemplated or permitted by this Agreement or as required by law, neither GBDC 3 or GBDC Umpqua nor Columbia shall, and neither Umpqua nor Columbia shall permit any of its Consolidated their respective Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable the other party to this Agreement (and the such consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not to be unreasonably delayedwithheld, conditioned or withheld:delayed):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) any shares federal funds borrowings and Federal Home Loan Bank borrowings, in each case with a maturity not in excess of its capital stocksix (6) months, (ii) any GBDC 3 Voting Debt or GBDC Voting Debtdeposits, as applicable, or other voting securities or (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) entry into repurchase agreements, in each case in the ordinary course of business, incur any securities convertible into indebtedness for borrowed money (other than indebtedness of Umpqua or exercisable any of its wholly-owned Subsidiaries to Umpqua or exchangeable forany of its wholly-owned Subsidiaries, on the one hand, or of Columbia or any of its wholly-owned Subsidiaries to Columbia or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other Rights to acquireindividual, any such shares corporation or other securities.entity;
(b) (i) Makeadjust, authorizesplit, combine or reclassify any capital stock;
(ii) make, declare, pay or set aside a record date for any dividend in respect ofdividend, or declare or make any other distribution on, any shares of its capital stockor directly or indirectly redeem, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or (iii) purchase, redeem purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exercisable for any shares of its capital stock or other equity or voting securities, except, in each case, (A) regular quarterly cash dividends by Umpqua at a rate not in excess of $0.21 per share of Umpqua Common Stock, (B) regular quarterly cash dividends by Columbia at a rate not in excess of $0.30 per share of Columbia Common Stock, (C) dividends paid by any of the Subsidiaries of each of Umpqua and Columbia to Umpqua or Columbia or any of their wholly-owned Subsidiaries, respectively, (D) regular distributions on outstanding trust preferred securities in accordance with their terms or (E) the exercise of stock options or the vesting or settlement of equity compensation awards, in each case, in accordance with past practice and the terms of the applicable award agreements;
(iii) grant any stock options, stock appreciation rights, warrants performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or options other equity-based awards or interests, or grant any person any right to acquireacquire any shares of capital stock or other equity or voting securities of Umpqua or Columbia or any of their respective Subsidiaries, other than in the case of Columbia, grants of rights to purchase shares of Columbia Common Stock under the Columbia ESPP in accordance with the terms of thereof; or
(iv) issue, sell, transfer, encumber or otherwise permit to become outstanding any shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, such or exercisable for, any shares of its capital stock.stock or other equity or voting securities, including any securities of Umpqua or Columbia or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of Umpqua or Columbia or their respective Subsidiaries, except pursuant to the exercise of stock options or the vesting or settlement of equity compensation awards in accordance with their terms;
(c) Sellsell, transfer, lease, mortgage, encumber or otherwise dispose of any of its material properties or assets or propertiesto any individual, except for (i) sales, transfers, leases, mortgages, encumbrances corporation or other dispositions entity other than a wholly-owned Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedbusiness, or (ii) encumbrances required pursuant to secure Permitted Indebtedness contracts or agreements in force at the date of such party or any of its Consolidated Subsidiaries.this Agreement;
(d) Acquire except for foreclosure or agree to acquire all or any portion acquisitions of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except control in a transaction conducted fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith in the ordinary course of business consistent with such party’s business, make any material investment objectives and policies in or acquisition of (whether by purchase of stock or securities, contributions to capital, property transfers, merger or consolidation, or formation of a joint venture or otherwise) any other person or the property or assets of any other person, in each case, other than a wholly-owned Subsidiary of Umpqua or Columbia, as publicly disclosed.applicable;
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in each case except for transactions in the case ordinary course of GBDC 3) business, terminate, materially amend, or the GBDC Charter waive any material provision of, any Umpqua Contract or the GBDC Bylaws (in Columbia Contract, as the case of GBDC) may be, or make any other change in any instrument or agreement governing documents or similar governing documents the terms of any of such party’s Consolidated Subsidiaries.its securities, other than normal renewals of contracts without material adverse changes of terms with respect to Umpqua or Columbia, or enter into any contract that would constitute an Umpqua Contract or Columbia Contract, if it were in effect on the date of this Agreement;
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than except as required by under applicable Law, GAAP, law or the SEC terms of any Umpqua Benefit Plan or applicable regulatory requirements.
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Columbia Benefit Plan.
(h) Take any action or knowingly fail to take any action that would, or would reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.
(i) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements Plan existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into hereof, as applicable, (i) enter into, establish, adopt, materially amend or terminate any Umpqua Benefit Plan or Columbia Benefit Plan, or any arrangement that would be an Umpqua Benefit Plan or a Columbia Benefit Plan if in effect on the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure date hereof, other than obligations with respect to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
broad-based welfare benefit plans (k) File or amend any material Tax Return other than severance) in the ordinary course of business consistent with past practice and as would not reasonably be expected to materially increase the cost of benefits under any such party’s investment objectives and policies Umpqua Benefit Plan or Columbia Benefit Plan, as publicly disclosed; makethe case may be, change (ii) increase the compensation or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply benefits payable to any new current or existing portfolio companies former employee, director or individual consultant, other than (x) in which such party connection with a promotion (permitted hereunder) or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contractresponsibilities, as applicable.
(p) Settle any Proceeding against itin each case, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess to a level consistent with similarly situated peer employees or (y) the payment of $250,000 in incentive compensation for completed performance periods based upon the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on actual level of achievement of the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than applicable performance goals in the ordinary course of business consistent with past practice, (iii) accelerate or take any action to accelerate the vesting of any equity-based awards or other compensation or benefits, (iv) enter into any new, or amend any existing, employment, severance, change in control, retention or similar agreement or arrangement; provided, however, that the parties may enter into offer letters with new hires in the ordinary course of business consistent with past practice that do not provide for enhanced or change in control severance, (v) fund any rabbi trust or similar arrangement, or in any other way secure the payment of compensation or benefits under any Umpqua Benefit Plan or Columbia Benefit Plan, as the case may be, (vi) terminate the employment or services of an employee as set forth on Section 5.2(f) in the Umpqua Disclosure Schedule or the Columbia Disclosure Schedule, respectively, other than for cause, or (vii) hire or promote any employee as set forth on Section 5.2(f) in the Umpqua Disclosure Schedule or the Columbia Disclosure Schedule, respectively (other than as a replacement hire or promotion on substantially similar terms of employment as the departed employee);
(g) settle any material claim, suit, action or proceeding, except involving solely monetary remedies in an amount and for consideration not in excess of $250,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on, or create any adverse precedent that would be material to, the business of it or its Subsidiaries or the Surviving Corporation;
(h) take any action or knowingly fail to take any action where such party’s investment objectives and policies action or failure to act could reasonably be expected to prevent the Mergers from qualifying as publicly disclosed, a “reorganization” within the meaning of Section 368(a) of the Code;
(i) payamend its articles of incorporation, discharge its bylaws or satisfy comparable governing documents of its Significant Subsidiaries;
(j) other than in prior consultation with the other party to this Agreement, materially restructure or materially change its investment securities or derivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(k) implement or adopt any Indebtedness for borrowed moneychange in its accounting principles, practices or methods, other than as may be required by GAAP;
(l) enter into any new line of business or, other than in the paymentordinary course of business (which may include partnering with third parties in origination, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as flow, servicing and other capacities) consistent with past practice, change in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, securitization and servicing policies (including any change in the maximum ratio or similar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by applicable law, regulation or policies imposed by any Governmental Entity;
(rm) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party itself or any of its Consolidated Significant Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personperson, or adoptrestructure, recommend, propose reorganize or announce an intention to adopt a plan of complete completely or partial liquidation, dissolution, restructuring, recapitalization partially liquidate or other reorganization of such party dissolve it or any of its Consolidated Significant Subsidiaries.;
(sn) With respect to GBDC 3make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any new GBDC 3 Subscription Agreements.closing agreement with respect to a material amount of Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any material right to claim a refund of Taxes; or
(to) Agree agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board its board of directors or the GBDC Board, as applicable, authorizingsimilar governing body in support of, any of the actions prohibited by this Section 6.25.2.
Appears in 1 contract
Forbearances. During Without limiting the generality of Section 5.1 above, during the period from the date of this Agreement until to the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.1Closing Date, except as may be required by Law, set forth in Schedule 5.2 of the Company Disclosure Schedule or as required or expressly otherwise permitted by this Agreement, as Previously Disclosed the Company shall not and the Seller shall not permit the Company or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC)Buyer, which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:
(a) Other incur any indebtedness for borrowed money (other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) short-term borrowings in the case of GBDC 3, pursuant to capital calls with respect to Ordinary Course under the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell or grantCompany’s existing revolving credit facility), or encumber assume, guarantee, endorse or pledgeotherwise as an accommodation become responsible for the obligations of any other individual, or authorize the creation of (i) any shares of its capital stock, (ii) any GBDC 3 Voting Debt or GBDC Voting Debt, as applicable, corporation or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.entity;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combinesubdivide, combine or reclassify or take similar action with respect to any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock; (ii) make, declare or pay any dividend (whether in cash, stock or (iii) purchaseother securities or property), redeem or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, directly or indirectly any shares of its capital stock or of any of its Subsidiaries or of Seller or any of its Affiliates or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its or their capital stock (except dividends paid by any of the Subsidiaries of such Company to such Company or to any of its wholly-owned Subsidiaries); (iii) grant any stock options, stock appreciation rights, warrants restricted shares, restricted stock units, deferred equity units, awards based on the value of such Company's or options Subsidiary's capital stock or other equity-based award with respect to acquireshares of such Company's or Subsidiary's capital stock, or securities convertible intogrant any individual, such corporation or other entity any right to acquire any shares of its capital stock.; or (iv) issue any additional shares of capital stock or other securities;
(c) Sell(i) increase in any manner the compensation or benefits including severance benefits of any of the current or former directors, officers or employees of a Company or its Subsidiaries (collectively, "Employees"), (ii) pay any pension, severance or retirement benefits to Employees, (iii) become a party to, establish, amend, commence, participate in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation (including any employee co-investment fund), severance, pension, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Employee (or newly hired employees), (iv) accelerate the vesting of any long-term incentive compensation under any Company Benefit Plans, or (v) agree, amend or enter into any collective bargaining agreement with any labor organization, union or association;
(d) sell, transfer, pledge, lease, grant, license, mortgage, encumber or otherwise dispose of any of its properties or assets to any Person other than a Subsidiary, or propertiescreate any Lien of any kind with respect to any such property or asset other than a Permitted Lien, except for (i) salesor cancel, transfersrelease or assign any indebtedness to any such Person or any claims held by any such Person, leases, mortgages, encumbrances or in each case other dispositions than in the ordinary course Ordinary Course or pursuant to contracts in force at the date of business consistent with such party’s investment objectives and policies as publicly disclosed, or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.this Agreement;
(e) Amend the GBDC 3 Charter enter into any new line of business or the GBDC 3 Bylaws (change in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in respect its Tax or financial accounting principlesoperating policies, practices or methods, other than except as required by applicable Law;
(f) transfer ownership, GAAPor grant any license or other rights, the SEC to any person or applicable regulatory requirements.entity of or in respect of any Company Intellectual Property Rights;
(g) Hire acquire (whether by merger, consolidation or acquisition of stock or assets or otherwise) any employees corporation, partnership or establishother business organization or division thereof or make any material investment either by purchase of stock or securities, become a party contributions to capital, property transfers, or commit to adopt purchase of any Employee Benefit Plan.property or assets of any other Person;
(h) Take amend the Company Charter or Company Bylaws (or comparable organizational documents), or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties;
(i) (i) amend or otherwise modify, or violate the terms of, or terminate, any Company Contract, (ii) create, renew or amend any agreement or contract or, except as may be required by applicable Law, other binding obligation of the Company or its Subsidiaries containing (A) any material restriction on the ability of it or its Subsidiaries to conduct its business as it is presently being conducted or (B) any material restriction on the ability of the Company or their Affiliates to engage in any type of activity or business or (iii) enter into any new, or amend any existing, contract, agreement or arrangement with any Affiliate;
(j) commence or settle any claim, action or proceeding, except for settling any claim, action or proceeding in excess of $50,000 individually or $100,000 in the aggregate;
(k) take any action or knowingly willfully fail to take any action that wouldis intended, or would may reasonably be expected expected, to (i) materially delay or materially impede the ability result in any of the parties conditions to consummate the Transactions or (ii) prevent the Mergers from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall this Agreement set forth in Article VI not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.being satisfied;
(il) Incur any Indebtedness for borrowed money or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or election related to Taxes (unless required by applicable Law), settle or compromise any material Tax liability or refund.
(l) Take agree to any actionadjustment of any material Tax attribute, enter into any closing agreement related to Tax, consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment, or knowingly change any taxable period or any Tax accounting method, fail to take file any action, which action Tax Return when due or failure to act is reasonably likely fail to cause such party Tax Returns when filed to fail to qualify or not be subject to taxation as a RIC.complete and accurate in all material respects;
(m) Enter make any capital expenditure in excess of $25,000 in the aggregate or enter into any new line contract or commitment therefor;
(n) enter into any contract for the purchase, sale or lease of business real property other than the sale of cemetery inventory in the Ordinary Course;
(it being understood that this prohibition does not apply o) fail to any new or existing portfolio companies keep in which such party force insurance policies providing insurance coverage with respect to the assets, operations and activities of the Company or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is as currently in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.effect;
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizingits board of directors in support of, any of the actions prohibited by by, or any material action in furtherance of any of the actions prohibited by, this Section 6.25.2; or
(q) change any investments in the Trust Funds.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of 4.2, the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shall, and neither Company shall permit any of its Consolidated Subsidiaries to, directly or indirectlynot, without the prior written consent of GBDC 3 the chief executive officer or GBDC, as applicable chief financial officer of SBC (and the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:):
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiespursuant to Contracts in force at the date hereof, except for or permitted by, this Agreement, make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount that exceeds 10% or $50,000, whichever is greater, less than its book value, except as provision shall not be applicable to secure Permitted Indebtedness resolving the taking of such party any real estate by any Governmental Authority by eminent domain proceedings or litigation;
(e) terminate or allow, after the use of reasonable best efforts, to be terminated any of the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except (x) in the ordinary course of business or (y) pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) other than in the case ordinary course of GBDC 3business, terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms;
(k) or Except as set forth in Section 4.2(k) of the GBDC Charter or the GBDC Bylaws (Company Disclosure Letter, other than in the case ordinary course of GBDCbusiness and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement, (i) increase in any manner the compensation or any other governing documents or similar governing documents fringe benefits of any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such party’s Consolidated Subsidiaries.officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement with or for the benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the lapsing of restrictions with respect to, Rights pursuant to any Holding Stock Plan or (v) make any changes to a Benefit Plan that are not required by Law;
(fl) Implement settle any Litigation, except in the ordinary course of business or adopt as described in Section 4.2(l) of the Company Disclosure Letter;
(m) revalue any material of its or its Subsidiaries’ assets or change in any method of accounting or accounting practice used by it or any of its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) file or amend any Tax Return except in the ordinary course of business; settle or compromise any Tax Liability; or make, change or revoke any Tax election or change any method of Tax accounting, except as required by applicable Law;
(o) knowingly take, GAAPor knowingly omit to take, any action that is reasonably likely to result in any of the SEC conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, that nothing in this Section 4.2(o) shall preclude Holding from exercising its rights under Sections 4.5 or 4.12;
(p) merge or consolidate it or any of its Subsidiaries with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) the Bank shall not make any changes in the mix, rates, terms or maturities of the Bank’s deposits or other Liabilities, except in a manner and pursuant to policies consistent with past practice and competitive factors in the market place; open any new branch or deposit taking facility; or close or relocate any existing branch or facility;
(t) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits; make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further that from the date hereof, any new individual loan or new extension of credit in excess of $500,000 and which is unsecured, or $1 million and which is secured, shall require the written approval of the chief executive officer or chief credit officer of SNB, which approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to such individual;
(gu) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that wouldat the time of taking such action is reasonably likely to prevent, or would reasonably be expected to materially interfere with, the consummation of the Merger;
(iv) materially delay knowingly take any action that would prevent or materially impede the ability of Merger and the parties to consummate the Transactions or (ii) prevent the Mergers Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iw) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which termination of this Agreement is terminated pursuant to Section 9.1Article 6 or the Effective Time, except as may be required by Law, as required expressly contemplated or expressly permitted by this Agreement, as Previously Disclosed Agreement or as set forth otherwise indicated in this Section 6.2 of the GBDC 3 Disclosure Schedule 4.2 or Section 6.2 of the GBDC Disclosure Schedule, as applicablerequired by law, neither GBDC 3 or GBDC Apollo nor the Bank shall, and neither shall permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 the chief executive officer or GBDCchief financial officer of SBCF (or, as applicable (and with respect to Section 4.2(u) or 4.2(w), the consent chief credit officer or chief lending officer of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDCSBC), which prior written consent shall not be unreasonably withheld or delayed, conditioned or withheld:
(a) Other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement amend its Organizational Documents or (x) in the case of GBDC 3, pursuant to capital calls with respect to the GBDC 3 Subscription Agreements and (y) in the case of GBDC, Permitted Issuances, issue, deliver, sell any resolution or grant, or encumber or pledge, or authorize the creation of (i) any shares agreement concerning indemnification of its capital stock, (ii) any GBDC 3 Voting Debt directors or GBDC Voting Debt, as applicable, or other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.officers;
(b) Except as set forth in Section 4.2(b) of the Company Disclosure Letter (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, subdivide or reclassify any capital stock, (ii) make, declare, set aside or take similar action with respect to pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquire, obligations convertible (whether currently convertible or securities convertible into, such only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock.
, (ciii) Sellgrant any Rights, (iv) issue, sell, pledge, dispose of, grant, transfer, lease, mortgagelicense, encumber guarantee, encumber, or otherwise dispose authorize the issuance, sale, pledge, disposition, grant, transfer, lease, license, guarantee or encumbrance of, any shares of its capital stock except pursuant to the exercise of Apollo Equity Awards outstanding as of the date of this Agreement, or (v) make any change in any instrument or Contract governing the terms of any of its assets securities;
(c) other than in the ordinary course of business or propertiesconsistent with past practice or permitted by this Agreement, except for make any investment (either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets) in any other Person;
(d) (i) sales, transfers, leases, mortgages, encumbrances charge off (except as may otherwise be required by law or other dispositions by regulatory authorities or by GAAP) or sell (except in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosedpast practices) any of its portfolio of loans, discounts or financing leases, or (ii) encumbrances required sell any asset held as other real estate or other foreclosed assets for an amount less than its book value;
(e) terminate or allow to secure Permitted Indebtedness be terminated any of such party the policies of insurance it maintains on its business or property, cancel any material indebtedness owing to it or any claims that it may have possessed, or waive any right of its Consolidated Subsidiaries.substantial value or discharge or satisfy any material noncurrent liability;
(df) Acquire enter into any new line of business, or agree to acquire all change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by applicable Laws or any portion of the assets, business or properties of policies imposed on it by any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, Governmental Authority;
(g) except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives past practices: (i) lend any money or pledge any of its credit in connection with any aspect of its business whether as a guarantor, surety, issuer of a letter of credit or otherwise, (ii) mortgage or otherwise subject to any Lien, encumbrance or other liability any of its assets, (iii) except for property held as other real estate owned, sell, assign or transfer any of its assets in excess of $50,000 in the aggregate or (iv) incur any material liability, commitment, indebtedness or obligation (of any kind whatsoever, whether absolute or contingent), or cancel, release or assign any indebtedness of any Person or any claims against any Person, except pursuant to Contracts in force as of the date of this Agreement and policies as publicly disclosed.disclosed in Section 4.2(g) of the Company Disclosure Letter or transfer, agree to transfer or grant, or agree to grant a license to, any of its material Intellectual Property;
(eh) Amend other than in the GBDC 3 Charter ordinary course of business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness (it being understood that for purposes of this Section 4.2(h), “short-term” shall mean maturities of six months or less)); assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any Person;
(i) other than purchases of investment securities in the ordinary course of business consistent with past practice or in consultation with SBC, restructure or change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the GBDC 3 Bylaws manner in which the portfolio is classified or reported;
(j) terminate or waive any material provision of any Contract other than normal renewals of Contracts without materially adverse changes of terms or otherwise amend or modify any material Contract;
(k) other than in the case ordinary course of GBDC 3business and consistent with past practice or as required by Benefit Plans and Contracts as in effect at the date of this Agreement or as set forth in Section 4.2(k) of the Company Disclosure Letter, (i) increase in any manner the compensation or fringe benefits of, or grant any bonuses to, any of its officers, employees or directors, whether under a Benefit Plan or otherwise, (ii) pay any pension or retirement allowance not required by any existing Benefit Plan or Contract to any such officers, employees or directors, (iii) become a party to, amend or commit itself to any Benefit Plan or Contract (or any individual Contracts evidencing grants or awards thereunder) or employment agreement, retention agreement or severance arrangement with or for the GBDC Charter benefit of any officer, employee or director, or (iv) accelerate the vesting of, or the GBDC Bylaws lapsing of restrictions with respect to, Rights pursuant to any Apollo Stock Plan, except pursuant to Section 1.7, (v) make any changes to a Benefit Plan that are not required by Law or (vi) hire or terminate the employment of a chief executive officer, president, chief financial officer, chief risk officer, chief credit officer, internal auditor, general counsel or other officer holding the position of senior vice president or above or any employee with annual base salary and annual incentive compensation that is reasonably anticipated to exceed $100,000;
(l) settle any Litigation, except in the case ordinary course of GBDCbusiness;
(m) or any other governing documents or similar governing documents of revalue any of such party’s Consolidated its or its Subsidiaries.
(f) Implement ’ assets or adopt change any material change in method of accounting or accounting practice used by it or its Tax or financial accounting principles, practices or methodsSubsidiaries, other than changes required by GAAP or the FDIC or any Regulatory Authority;
(n) make, change or revoke any tax election; adopt or change any tax accounting method; file any amended Tax Return; settle or compromise any Liability for Taxes; enter into any “closing agreement” as described in Section 7121 of the Code (or any similar provision of applicable Law); surrender any right to claim a refund of Taxes; or consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect of Taxes;
(o) knowingly take, or knowingly omit to take, any action that is reasonably likely to result in any of the conditions to the Merger set forth in Article 5 not being satisfied, except as may be required by applicable Law; provided, GAAPthat nothing in this Section 4.2(o) shall preclude Apollo from exercising its rights under Sections 4.5(a) or 4.12;
(p) merge or consolidate with any other Person;
(q) acquire assets outside of the ordinary course of business consistent with past practices from any other Person with a value or purchase price in the aggregate in excess of $50,000, other than purchase obligations pursuant to Contracts to the extent in effect immediately prior to the execution of this Agreement and described in Section 4.2(q) of the Company Disclosure Letter;
(r) enter into any Contract that is material and would have been material had it been entered into prior to the execution of this Agreement;
(s) other than in the ordinary course of business and consistent with past practices, the SEC Bank shall not make any adverse changes in the mix, rates, terms or maturities of its deposits or other Liabilities;
(t) close or relocate any existing branch or facility;
(u) make any extension of credit that, when added to all other extensions of credit to a borrower and its affiliates, would exceed its applicable regulatory requirements.lending limits;
(gv) Hire any employees or establishother than in the ordinary course of business and consistent with past practice, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take take any action or knowingly fail to take any action that wouldwill cause Apollo’s Consolidated Tangible Shareholders’ Equity at the Effective Time to be less than $84.6 million;
(w) make any loans, or enter into any commitments to make loans, which vary other than in immaterial respects from its written loan policies, a true and correct copy of such policies has been provided to Seacoast; provided, that this covenant shall not prohibit the Bank from extending or renewing credit or loans in the ordinary course of business consistent with past lending practices or in connection with the workout or renegotiation of loans currently in its loan portfolio; provided further, that from the date hereof, any new individual loan or new extension of credit in excess of $750,000 and which is unsecured, or $3.5 million and which is secured, shall require the written approval of the chief executive officer, chief lending officer or chief credit officer of SNB, which approval shall not be unreasonably withheld or delayed, and the approval or rejection shall be given in writing within two (2) Business Days after the loan package is delivered to SNB;
(x) take any action that at the time of taking such action is reasonably likely to prevent, or would materially interfere with, the consummation of the Merger;
(y) take any action, or refrain from taking any action, where such act or failure to act could reasonably be expected to (i) materially delay or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Merger and the Bank Merger from qualifying as a reorganization within the meaning of Section 368(a) of the Code; provided, however, that the foregoing shall not preclude GBDC 3 from declaring or paying any Tax Dividend on or before the Closing Date.or
(iz) Incur any Indebtedness for borrowed money agree or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.
(j) Make or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments in new portfolio companies, in each case, entered into in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(k) File or amend any material Tax Return other than in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.
(l) Take any action, or knowingly fail commit to take any action, which action or failure to act is reasonably likely to cause such party to fail to qualify or not be subject to taxation as a RIC.
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Person, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to take, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, any of the actions prohibited by this Section 6.24.2.
Appears in 1 contract
Sources: Merger Agreement (Seacoast Banking Corp of Florida)
Forbearances. During the period from the date of this Agreement until the earlier of to the Effective Time and the dateTime, if any, on which this Agreement is terminated pursuant to Section 9.1, except as may be required by Law, as required or expressly permitted by this Agreement, as Previously Disclosed or as set forth in Section 6.2 of the GBDC 3 Disclosure Schedule or Section 6.2 of the GBDC Disclosure Schedule, as applicable, neither GBDC 3 or GBDC shallUnion shall not, and neither shall not permit any of its Consolidated Subsidiaries to, directly or indirectly, without the prior written consent of GBDC 3 or GBDC, as applicable First Charter (and Union shall provide First Charter with prompt notice of any events referred to in this SECTION 7.02 occurring after the consent of a majority of the Independent Directors of GBDC 3, in the case of GBDC 3, and the consent of a majority of the Independent Directors of GBDC, in the case of GBDC), which prior written consent shall not be unreasonably delayed, conditioned or withheld:date hereof):
(a) Other other than pursuant to such party’s dividend reinvestment plan as in effect as of the date of this Agreement or (x) in the case ordinary course of GBDC 3business consistent with past practice, pursuant incur any indebtedness for borrowed money (other than short-term indebtedness incurred to capital calls with respect to the GBDC 3 Subscription Agreements refinance short-term indebtedness, it being understood and (y) agreed that incurrence of indebtedness in the case ordinary course of GBDCbusiness shall include, Permitted Issuanceswithout limitation, issue, deliver, sell or grant, or encumber or pledge, or authorize the creation of (i) deposit liabilities, purchases of federal funds, sales of certificates of deposit and entering into repurchase agreements), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any shares of its capital stockother individual, (ii) any GBDC 3 Voting Debt corporation or GBDC Voting Debt, as applicableother entity, or make any loan or advance other voting securities or (iii) any securities convertible into or exercisable or exchangeable for, or any other Rights to acquire, any such shares or other securities.than in the ordinary course of business consistent with past practice;
(b) (i) Make, authorize, declare, pay or set aside any dividend in respect of, or declare or make any distribution on, any shares of its capital stock, except for (A) the authorization, announcement and payment of regular quarterly and supplemental cash distributions consistent with past practices and such party’s investment objectives and policies as publicly disclosed, (B) the authorization and payment of any dividend or distribution necessary for such party to maintain its qualification as a RIC or to avoid the imposition of any income or excise tax, as reasonably determined by such party, (C) dividends payable by any direct or indirect wholly owned Consolidated Subsidiary of such party to such party or another direct or indirect wholly owned Consolidated Subsidiary of such party or (D) with respect to GBDC 3, a Tax Dividend; (ii) adjust, split, combine, combine or reclassify any capital stock or take similar action otherwise make any change with respect to its authorized capital stock; make, declare or pay any of its capital stock dividend or issue or authorize the issuance of make any other securities in respect ofdistribution on, in lieu of or in substitution for shares of its capital stock directly or (iii) purchaseindirectly redeem, redeem purchase or otherwise acquire, any shares of its capital stock or any rights, warrants securities or options to acquireobligations convertible into or exchangeable for any shares of its capital stock, or securities convertible intogrant any stock appreciation rights or grant any individual, such corporation or other entity any right to acquire any shares of its capital stock.; or issue any additional shares of capital stock, or any securities or obligations convertible into or exchangeable for any shares of its capital stock, except pursuant to the exercise of Union Options outstanding as of the date hereof and pursuant to the Stock Option Agreement;
(c) Sellsell, transfer, lease, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or propertiesother entity, except for or cancel, release or assign any indebtedness to any such person or any claims held by any such person;
(id) salesmake any material investment either by purchase of stock or securities, contributions to capital, property transfers, leasesor purchase of any property or assets of any other individual, mortgages, encumbrances corporation or other dispositions entity;
(e) enter into or terminate any contract or agreement involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days notice, or make any change in, or extension of, any of its leases or contracts involving annual payments in excess of $1,000 and which cannot be terminated without penalty upon 30 days notice;
(f) increase or modify in any manner the compensation or fringe benefits of any of its Employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any Employee or accelerate the vesting of any stock options or other stock-based compensation; provided the foregoing shall not prevent the continued accrual and payment in the ordinary course of business consistent benefits under the existing cash incentive bonus plan for key employees of Union in accordance with the terms of such party’s investment objectives plan; and policies as publicly disclosedprovided further, that Union may put in effect regularly scheduled salary increases which are either (i) approved in advance by First Charter or (ii) encumbrances required to secure Permitted Indebtedness of such party or any of its Consolidated Subsidiaries.
(d) Acquire or agree to acquire all or any portion of the assets, business or properties of any other Person, whether by merger, consolidation, purchase or otherwise or make any other investments, except in a transaction conducted in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed.
(e) Amend the GBDC 3 Charter or the GBDC 3 Bylaws (in the case of GBDC 3) or the GBDC Charter or the GBDC Bylaws (in the case of GBDC) or any other governing documents or similar governing documents of any of such party’s Consolidated Subsidiaries.
(f) Implement or adopt any material change in its Tax or financial accounting principles, practices or methods, other than as required budgets for Union which have been approved by applicable Law, GAAP, the SEC or applicable regulatory requirements.First Charter;
(g) Hire any employees or establish, become a party to or commit to adopt any Employee Benefit Plan.
(h) Take any action or knowingly fail to take any action that wouldaction, or refrain from taking any action, that would reasonably be expected to (i) materially delay prevent or materially impede the ability of the parties to consummate the Transactions or (ii) prevent the Mergers Merger from qualifying as a reorganization within the meaning of Section 368(a) 368 of the Code; providedCode or from qualifying for pooling-of-interests accounting treatment;
(h) settle any claim, howeveraction or proceeding involving the payment of money damages in excess of an amount which, that the foregoing shall not preclude GBDC 3 from declaring together with all other claims, actions or paying any Tax Dividend on or before the Closing Date.proceedings previously settled, exceeds $20,000;
(i) Incur any Indebtedness for borrowed money amend its Articles of Incorporation or guarantee any Indebtedness of another Person, except for (i) draw-downs with respect to any Previously Disclosed financing arrangements existing as of the date of this Agreement and obligations to fund commitments to portfolio companies entered into in the ordinary course of business and (ii) Permitted Indebtedness.its bylaws;
(j) Make fail to maintain its Regulatory Agreements, material licenses and permits or agree to make any new capital expenditure other than obligations to fund commitments to portfolio companies or investments file in new portfolio companiesa timely fashion all federal, in each casestate, entered into in the ordinary course of business consistent with such party’s investment objectives local and policies as publicly disclosed.foreign tax returns;
(k) File make any capital expenditures of more than $10,000 individually or amend any material Tax Return other than $25,000 in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed; make, change or revoke any material Tax election; or settle or compromise any material Tax liability or refund.aggregate;
(l) Take any action, or knowingly fail to take any action, which action maintain each Union Benefit Plan or failure to act is reasonably likely to cause such party to fail to qualify timely make all contributions or not be subject to taxation as accruals required thereunder in accordance with GAAP applied on a RIC.consistent basis; or
(m) Enter into any new line of business (it being understood that this prohibition does not apply to any new or existing portfolio companies in which such party or any of its Consolidated Subsidiaries has made or will make a debt or equity investment that is in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed and is, would or should be reflected in such party’s schedule of investments included in its quarterly or annual periodic reports that are filed with the SEC).
(n) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, enter into any Contract that would otherwise constitute a GBDC 3 Material Contract or GBDC Material Contract, as applicable, had it been entered into prior to the date of this Agreement.
(o) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, terminate, cancel, renew or agree to any material amendment of, change in or waiver under any GBDC 3 Material Contract or GBDC Material Contract, as applicable.
(p) Settle any Proceeding against it, except for Proceedings that (i) are settled in the ordinary course of business consistent with past practice and such party’s investment objectives and policies as publicly disclosed, in an amount not in excess of $250,000 in the aggregate (after reduction by any insurance proceeds actually received); (ii) would not impose any material restriction on the conduct of business of it or any of its Consolidated Subsidiaries or, after the Effective Time, GBDC, GBDC 3, the Surviving Company or any of their respective Consolidated Subsidiaries and (iii) would not admit liability, guilt or fault.
(q) Other than in the ordinary course of business consistent with such party’s investment objectives and policies as publicly disclosed, (i) pay, discharge or satisfy any Indebtedness for borrowed money, other than the payment, discharge or satisfaction required pursuant to the terms of outstanding debt of such party or its Consolidated Subsidiaries as in effect as of the date of this Agreement or other Permitted Indebtedness or (ii) cancel any material indebtedness.
(r) Except as otherwise expressly contemplated by this Agreement, merge or consolidate such party or any of its Consolidated Subsidiaries with any Person or enter into any other similar extraordinary corporate transaction with any Personto, or adopt, recommend, propose or announce an intention to adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of such party or any of its Consolidated Subsidiaries.
(s) With respect to GBDC 3, enter into any new GBDC 3 Subscription Agreements.
(t) Agree to take, make any commitment to taketo, or adopt any resolutions of the GBDC 3 Board or the GBDC Board, as applicable, authorizing, take any of the actions prohibited by this Section 6.2SECTION 7.02.
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