Operation of the Bank. Except with the prior written consent of Landmark, between the Agreement Date and the Closing, the Bank will, and Wellsville shall cause the Bank to: (a) conduct its business only in the Ordinary Course of Business; (b) use its Best Efforts to preserve intact the current business organization of the Bank, keep available the services of the current officers, employees and agents of the Bank, and maintain the goodwill of suppliers, customers, landlords, creditors, employees, agents and others who have business relationships with the Bank; (c) confer with Landmark concerning operational matters of a material nature; (d) enter into loan transactions only in accordance with sound credit practices and only on terms and conditions that are not materially more favorable than those available to the borrower from competitive sources in arm’s-length transactions, and in that connection, from the Agreement Date to the Closing, shall not: (i) enter into any new credit or new lending relationships in excess of $25,000 to any Person and such Person’s Borrowing Affiliate (as defined below); or (ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a ten percent (10%) or greater equity interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Bank which constitutes a nonperforming loan or against any part of such indebtedness the Bank has established loss reserves or any part of which has been charged-off by the Bank; provided, however, that the Bank shall be permitted to make any loan that is otherwise prohibited by this subsection with the prior written consent of Landmark, or if the Bank has made a written request for permission to make an otherwise prohibited loan and has provided Landmark with all information necessary for Landmark to make an informed decision with respect to such request, and Landmark has failed to respond to such request within five (5) Business Days after Landmark’s receipt of such request and all such information; (e) consistent with past practice, maintain an allowance for possible loan and lease losses which is adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to loans previously charged off, on loans outstanding (including accrued interest receivable), and charge-off any loans or leases that would be deemed uncollectible in accordance with GAAP or any Legal Requirements and place on nonaccrual any loans or leases that are past due greater than ninety (90) days; (f) maintain all of its assets necessary for the conduct of its business in good operating condition and repair, reasonable wear and tear and damage by fire or unavoidable casualty excepted, and maintain policies of insurance upon its assets and with respect to the conduct of its business in amounts and kinds comparable to that in effect on the Agreement Date and pay all premiums on such policies when due; (g) not buy or sell any security held, or intended to be held, for investment, but such restriction shall not affect the buying and selling by the Bank of Federal Funds or the reinvestment of dividends paid on any securities owned by the Bank as of the Agreement Date; (h) not declare or pay any dividends or make any other similar distributions of cash or property to Wellsville or any of the Bank’s directors, officers, or employees, other than regular salary or other earned compensation; provided, however, that Landmark shall not unreasonably refuse its consent to any proposed dividend or other similar distribution so long as following such dividend or distribution the Adjusted Stockholders’ Equity would remain greater than or equal to the Minimum Adjusted Stockholders’ Equity (as defined in Section 8.9(b) hereof); provided further that, the foregoing notwithstanding: (i) the Bank may distribute to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ the property set forth on Schedule 5.2; and (ii) the Bank shall transfer to Wellsville any life insurance policies related to the Salary Continuation Agreement between the Bank and ▇▇▇▇▇ ▇. ▇▇▇▇▇, dated January 1, 1987, and the Executive Salary Continuation Agreement between the Bank and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, dated January 1, 1997, as well as any life insurance policies owned by the Bank insuring the life of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇; (i) not incur any financial obligation to any financial advisor, valuation expert or similar consultant if the Bank will be liable for the fees payable to any such consultant, provided, however, that nothing contained in this Agreement shall prevent the retention by the Bank of any such consultant so long as any fees or expenses associated therewith are paid by Wellsville; (j) file in a timely manner all required filings with all Regulatory Authorities and cause such filings to be true and correct in all material respects; (k) maintain its books, accounts and records in the Ordinary Course of Business, on a basis consistent with prior years; (l) comply with all Legal Requirements and Contracts; and (m) report periodically to Landmark concerning the status of the business, operations and finances of the Bank.
Appears in 1 contract
Operation of the Bank. Except as contemplated by or permitted by this Agreement, as required by applicable Legal Requirement, or with the prior written consent of LandmarkAcquiror, between which shall not be unreasonably withheld, conditioned or delayed, during the period from the date of this Agreement to the earlier of the Closing Date and or the Closingtermination of this Agreement pursuant to its terms, the Bank willCompany shall, and Wellsville shall cause the Bank each of its Subsidiaries to:
(a) conduct its business only in the Ordinary Course of BusinessBusiness and in compliance with all Legal Requirements, and continue to make all normal expenditures and incur all regular expenses necessary to continue the Bank’s business, consistent with past practice;
(b) use its Best Efforts to preserve intact the its current business organization of the Bankorganization, keep available the services of the its current officers, employees and agents of the Bankagents, and maintain the goodwill of its suppliers, customers, landlords, creditors, employees, agents and others who have business relationships with it, and, in connection therewith and permit Representatives of Acquiror Bank to hold meetings or discussions with officers and employees of the BankBank as provided in Section 8.3;
(c) confer with Landmark Acquiror concerning operational matters of a material nature;
(d) enter into loan transactions only in accordance with sound credit practices and only on terms and conditions that are not materially more favorable than those available to the borrower from competitive sources in arm’s-length transactions, and in that connection, from the Agreement Date to the Closing, shall not:
(i) enter into any new credit or new lending relationships in excess of $25,000 to any Person and such Person’s Borrowing Affiliate (as defined below); or
(ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a ten percent (10%) or greater equity interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Bank which constitutes a nonperforming loan or against any part of such indebtedness the Bank has established loss reserves or any part of which has been charged-off by the Bank; provided, however, that ’s currently existing loan policy (which may be modified in the Bank shall be permitted to make any loan that is otherwise prohibited by this subsection with the prior written consent Ordinary Course of Landmark, or if the Bank has made a written request for permission to make an otherwise prohibited loan and has provided Landmark with all information necessary for Landmark to make an informed decision with respect to such request, and Landmark has failed to respond to such request within five (5) Business Days after Landmark’s receipt of such request and all such informationBusiness);
(e) consistent with past practice, maintain an allowance for possible loan and lease losses which is adequate ALLL in accordance in all material respects under with the requirements of GAAP to provide for possible losses, net of recoveries relating to loans previously charged off, and applicable Legal Requirements on loans outstanding (including accrued interest receivable), and charge-off any loans or leases that would be deemed uncollectible in accordance with GAAP or any and applicable Legal Requirements and place on nonaccrual non-accrual any loans or leases that are past due greater than ninety (90) days, unless the obligations are both well-secured and in the process of collection;
(f) maintain all of its assets necessary for the conduct of its business in good operating condition and repair, reasonable wear and tear and damage by fire or unavoidable casualty excepted, and maintain policies of insurance upon its assets and with respect to the conduct of its business in amounts and kinds comparable to that in effect on the Agreement Date and pay all premiums on such policies when due;
(g) not buy or sell any security held, or intended to be held, for investment, but such restriction shall not affect only in accordance with the buying Bank’s investment policy and selling by reasonable banking standards and in the Bank Ordinary Course of Federal Funds or the reinvestment of dividends paid on any securities owned by the Bank as of the Agreement DateBusiness;
(h) not declare or pay any dividends or make any other similar distributions of cash or property to Wellsville or any of the Bank’s directors, officers, or employees, other than regular salary or other earned compensation; provided, however, that Landmark shall not unreasonably refuse its consent to any proposed dividend or other similar distribution so long as following such dividend or distribution the Adjusted Stockholders’ Equity would remain greater than or equal to the Minimum Adjusted Stockholders’ Equity (as defined in Section 8.9(b) hereof); provided further that, the foregoing notwithstanding: (i) the Bank may distribute to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ the property set forth on Schedule 5.2; and (ii) the Bank shall transfer to Wellsville any life insurance policies related to the Salary Continuation Agreement between the Bank and ▇▇▇▇▇ ▇. ▇▇▇▇▇, dated January 1, 1987, and the Executive Salary Continuation Agreement between the Bank and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, dated January 1, 1997, as well as any life insurance policies owned by the Bank insuring the life of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇;
(i) not incur any financial obligation to any financial advisor, valuation expert or similar consultant if the Bank will be liable for the fees payable to any such consultant, provided, however, that nothing contained in this Agreement shall prevent the retention by the Bank of any such consultant so long as any fees or expenses associated therewith are paid by Wellsville;
(j) file in a timely manner all required filings with all Regulatory Authorities and cause such filings to be true and correct in all material respects;
(i) record and carry on its books and records the net realizable value of OREO, with such value to be supported by reasonable documentation;
(j) except for (A) regular salary or other earned compensation, fees, commissions, bonuses or (B) the cash dividends and distributions payable to the Company’s shareholders and which are reflected in the Calculation (the “Company Dividend Payments”), not declare or pay any dividends or make any other similar distributions of cash or property to any of the Bank’s directors, officers, employees or the Shareholders;
(k) maintain its books, accounts and records in the Ordinary Course of Business, on a basis consistent with prior years;
(l) materially comply with all Legal Requirements and Contracts;
(m) take no action that is intended to or would reasonably be expected to adversely affect or materially delay the ability of the Company or Acquiror to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Contemplated Transactions;
(n) provide notice to Acquiror of any material change to the Bank’s loan policy within one (1) Business Day after such change becomes effective;
(o) use its Best Efforts to obtain the cash necessary to fulfill the Company’s obligations under Section 2.9(a) in a tax advantageous manner; and
(mp) report periodically to Landmark Acquiror and Acquiror Bank concerning the status of the its business, operations and finances of the Bankfinances.
Appears in 1 contract
Operation of the Bank. Except with the prior written consent of LandmarkAcquiror, between the Agreement Date and the Closing, the Bank will, and Wellsville shall cause the Bank to:
(a) conduct its business only in the Ordinary Course of Business;
(b) use its Best Efforts to preserve intact the current business organization of the Bank, keep available the services of the current officers, employees and agents of the Bank, and maintain the goodwill of suppliers, customers, landlords, creditors, employees, agents and others who have business relationships with the Bank;
(c) confer with Landmark Acquiror and AB&T concerning operational matters of a material nature;
(d) enter into loan transactions only in accordance with sound credit practices and the Bank’s current loan policy, and only on terms and conditions that are not materially more favorable than those available to the borrower from competitive sources in arm’s-length transactions, and in that connection, from the Agreement Date date hereof to the Closing, shall not:
(i) enter into any new unsecured credit or new lending relationships in excess of $25,000 to with any Person and such Person’s Borrowing Affiliate (as defined below)) in a principal amount of $75,000 or more, or any new secured credit or lending relationships with any Person and such Person’s Borrowing Affiliate in a principal amount of $500,000 or more, unless the Bank has delivered to AB&T as soon as reasonably possible after the making of such loan the Bank’s internal written memorandum describing the loan and the Bank’s internal spreadsheets analyzing the financial background and circumstances of such loan; or
(ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a ten percent (10%) or greater equity interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Bank which constitutes a nonperforming non-performing loan or against any part of such indebtedness the Bank has established loss reserves or any part of which has been charged-off by the Bank; provided, however, that the Bank shall be permitted to make any loan that is otherwise prohibited by this subsection with the prior written consent of Landmark, or if the Bank has made a written request for permission to make an otherwise prohibited loan and has provided Landmark with all information necessary for Landmark to make an informed decision with respect to such request, and Landmark has failed to respond to such request within five (5) Business Days after Landmark’s receipt of such request and all such information;
(e) consistent with past practice, maintain an allowance for possible loan and lease losses which is adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to loans previously charged off, on loans outstanding (including accrued interest receivable), and charge-off any loans or leases that would be deemed uncollectible in accordance with GAAP or any Legal Requirements and place on nonaccrual non-accrual any loans or leases that are past due greater than ninety (90) days;
(f) maintain all of its assets necessary for the conduct of its business in good operating condition and repair, reasonable wear and tear and damage by fire or unavoidable casualty excepted, and maintain policies of insurance upon its assets and with respect to the conduct of its business in amounts and kinds comparable to that in effect on the Agreement Date date hereof and pay all premiums on such policies when due;
(g) not buy or sell any security held, or intended to be held, for investment, but such restriction shall not affect the buying and selling by any the Bank of Federal Funds or the reinvestment of interest and dividends paid on any securities owned by the Bank as of the Agreement Datedate of this Agreement;
(h) not declare or pay any dividends or make any other similar distributions of cash or property to Wellsville or any of the Bank’s directors, officers, employees or employeesshareholders, other than regular salary or other earned compensation; provided, however, that Landmark shall not unreasonably refuse its consent to any proposed dividend or other similar distribution so long as following such dividend or distribution the Adjusted Stockholders’ Equity would remain greater than or equal to the Minimum Adjusted Stockholders’ Equity (as defined in Section 8.9(b) hereof); provided further that, the foregoing notwithstanding: (i) the Bank may distribute to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ the property set forth on Schedule 5.2; and (ii) the Bank shall transfer to Wellsville any life insurance policies related to the Salary Continuation Agreement between the Bank and ▇▇▇▇▇ ▇. ▇▇▇▇▇, dated January 1, 1987, and the Executive Salary Continuation Agreement between the Bank and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, dated January 1, 1997, as well as any life insurance policies owned by the Bank insuring the life of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇;
(i) not incur any financial obligation to any financial advisor, valuation expert or similar consultant if the Bank will be liable except for the fees payable to any such consultant, provided, however, that nothing contained in this Agreement shall prevent T▇▇ ▇▇▇ & Associates on the retention by the Bank of any such consultant so long as any fees or expenses associated therewith are paid by Wellsvilleterms and conditions described on Schedule 4.16;
(j) file in a timely manner all required filings with all Regulatory Authorities and cause such filings to be true and correct in all material respects;
(k) maintain its books, accounts and records in the Ordinary Course of Business, on a basis consistent with prior years;
(l) comply with all Legal Requirements and Contracts; and
(m) report periodically to Landmark Acquiror concerning the status of the business, operations and finances of the Bank.
Appears in 1 contract
Operation of the Bank. Except with the prior written consent of Landmark, between the Agreement Date and the Closing, the Bank will, and Wellsville shall cause the Bank to:
(a) conduct its business only in the Ordinary Course of Business;
(b) . Between the date hereof and the time of Closing, the business of the Company and the Bank shall be operated and conducted only in the ordinary course, including but not limited to compliance with the Bank's internal lending policy and procedures, including standards of credit worthiness, security requirements and lending limits; the Bank shall continue to accrue interest on loans and charge off loans in accordance with its past practice and in accordance with GAAP and regulatory requirements; the Bank shall continue to operate and price deposit offerings in a reasonable manner as it has done over time in the ordinary course of business; and the Company shall use its Best Efforts best efforts to operate and preserve intact the current business business, assets, liabilities and organization of the Bank, keep available . Without limiting the services generality of the current officersforegoing, employees except as specifically authorized or required in this Agreement, the Company and agents the Bank shall not request or accept any change in capital stock or structure and shall not, without the written consent of Buyer (which consent shall not be unreasonably withheld or delayed): incur additional borrowings from the Federal Home Loan Bank other than short term borrowings with a term not to exceed one year; hire additional personnel; acquire or dispose of material assets other than in the ordinary course of business; extend or renew loans or advance additional sums to a borrower whose loans, in whole or in part, have been classified or listed as special mention by any regulatory authority or are on the Bank, and maintain the goodwill of suppliers, customers, landlords, creditors, employees, agents and others who have business relationships 's watch list; make loans other than in accordance with the Bank;
(c) confer with Landmark concerning operational matters of a material nature;
(d) enter into 's current loan transactions only in accordance with sound credit practices and only on terms and conditions that are not materially more favorable than those available to the borrower from competitive sources in arm’s-length transactions, and in that connection, from the Agreement Date to the Closing, shall not:
(i) enter into any new credit policies; make or new lending relationships in excess of $25,000 to any Person and such Person’s Borrowing Affiliate (as defined below); or
(ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a ten percent (10%) or greater equity interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Bank which constitutes a nonperforming loan or against any part of such indebtedness the Bank has established loss reserves or any part of which has been charged-off by the Bank; provided, however, that the Bank shall be permitted commit to make any new loan that or new letter of credit or any new or additional advance under any existing line of credit (other than any advance which it is otherwise prohibited by this subsection with the prior written consent of Landmark, or if the Bank has made a written request for permission obligated to make an otherwise prohibited loan and has provided Landmark with all information necessary for Landmark pursuant to make an informed decision with respect contracts to such request, and Landmark has failed to respond to such request within five (5) Business Days after Landmark’s receipt of such request and all such information;
(e) consistent with past practice, maintain an allowance for possible loan and lease losses which is adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to loans previously charged off, on loans outstanding (including accrued interest receivable), and charge-off any loans or leases that would be deemed uncollectible in accordance with GAAP or any Legal Requirements and place on nonaccrual any loans or leases that are past due greater than ninety (90) days;
(f) maintain all of its assets necessary for the conduct of its business in good operating condition and repair, reasonable wear and tear and damage by fire or unavoidable casualty excepted, and maintain policies of insurance upon its assets and with respect to the conduct of its business in amounts and kinds comparable to that lend money in effect on the Agreement Date and pay all premiums on such policies when due;
(g) not buy or sell any security helddate of this Agreement), or intended to be held, for investment, but such restriction shall not affect the buying and selling by the Bank of Federal Funds or the reinvestment of dividends paid on any securities owned by the Bank as of the Agreement Date;
(h) not declare or pay any dividends or make any other similar distributions of cash or property to Wellsville or any of the Bank’s directors, officers, or employees, other than regular salary or other earned compensation; provided, however, that Landmark shall not unreasonably refuse its consent to any proposed dividend or other similar distribution so long as following such dividend or distribution the Adjusted Stockholders’ Equity would remain greater than or equal to the Minimum Adjusted Stockholders’ Equity (as defined in Section 8.9(b) hereof); provided further that, the foregoing notwithstanding: (i) the Bank may distribute to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ the property set forth on Schedule 5.2; in principal amounts in excess of Ten Thousand Dollars ($10,000) for an unsecured loan, Fifty Thousand Dollars ($50,000) for a secured commercial loan and Two Hundred Thousand Dollars ($200,000) for a first-mortgage, secondary market qualified loan secured by owner-occupied residential real estate or (ii) with respect to any residential mortgage loan which does not meet the Bank qualifications for resale on the secondary market; sell investment securities prior to maturity; or purchase investment securities, except that Buyer's consent shall transfer to Wellsville any life insurance policies related not be required for the purchase of U.S. Government or U.S. Agency securities having a maturity at the time of purchase of one year or less. The Company's requests for Buyer's consent pursuant to the Salary Continuation Agreement between the Bank and preceding sentence shall be made in writing or via facsimile to ▇▇▇▇▇ ▇. ▇▇▇▇▇, dated January 1, 1987, and the Executive Salary Continuation Agreement between the Bank and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇, dated January 1, 1997, as well as any life insurance policies owned by the Bank insuring the life of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇;
▇ as Buyer's authorized representatives (i) not incur any financial obligation or to any financial advisor, valuation expert or similar consultant if such other authorized representatives as Buyer may designate in writing to the Bank will be liable for the fees payable from time to time). If Buyer's authorized representatives shall fail to respond to any such consultantrequest by the end of the third business day following receipt thereof, provided, however, that nothing contained in such request shall be deemed approved by Buyer. From and after the date of this Agreement to the date of Closing or termination of this Agreement, the Company shall prevent the retention by cause the Bank to allow representatives of any such consultant so long as any fees or expenses associated therewith are paid by Wellsville;
(j) file in a timely manner Buyer to attend all required filings with board meetings and all Regulatory Authorities and cause such filings to be true and correct in all material respects;
(k) maintain its books, accounts and records in the Ordinary Course of Business, on a basis consistent with prior years;
(l) comply with all Legal Requirements and Contracts; and
(m) report periodically to Landmark concerning the status of the business, operations and finances loan committee meetings of the Bank, but without voting rights and as observers only, and provide the Buyer reasonable prior notice thereof; provided 34 Next Page such representatives shall be excluded from portions of any meeting which discuss the transactions contemplated by this Agreement, a Competing Proposal or Superior Proposal, or regulatory issues, or if, in the reasonable opinion of counsel to the Company, attendance at such portion of the meeting would adversely affect the attorney-client privilege between the Company and its counsel.
Appears in 1 contract