Forbearances. Except as set forth in this Section 5.2 or ------------ in Section 5.2 of the HFP Schedule, or as otherwise expressly contemplated or permitted by this Agreement or the Option Agreement, during the period from the date of this Agreement to the Effective Time, HFP shall not and shall not permit any of its Subsidiaries to, without the prior written consent of ▇▇▇▇▇▇ (which consent shall not be unreasonably withheld): (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly-owned Subsidiary of HFP to HFP or another wholly-owned Subsidiary of HFP); (b) enter into or amend any collective bargaining agreement or employment, severance or similar agreement or arrangement with any director or officer or employee or modify any of the HFP Benefit Plans or institute any new HFP Benefit Plans or grant any salary or wage increase or increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation or bonuses to employees consistent with past practice and timing or (ii) as required by law or contract; (c) authorize, recommend, propose, or announce an intention to authorize, recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a business that would be material to HFP or a material amount of assets, including loan servicing rights, loans or securities as well as any release or relinquishment of any material contract rights provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries; (d) other than for transactions in the ordinary course of business consistent with past practice, enter into any material contract or agreement, or modify any Contract or Financing Document in a manner adverse to HFP or any its Subsidiaries; (e) sell, transfer, convey, assign, mortgage or pledge any of its properties or assets involving amounts in excess of $100,000, except in the ordinary course of business consistent with past practice; (f) settle any material claim, action or proceeding against HFP or any of its Subsidiaries involving money damages in excess of $100,000, except in the ordinary course of business consistent with past practice; (g) initiate any litigation or arbitration proceeding, except in the ordinary course of business; (h) propose or adopt any amendments to the HFP Charter or HFP Bylaws, or the charter or bylaws of any Subsidiary; (i) issue, sell, grant, confer or award any of its capital securities or any debt securities having the right to vote on matters on which stockholders may vote, or rights to acquire such securities, or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its capital securities, whether pursuant to the terms of such capital securities or otherwise (except for (i) shares of HFP Common Stock issued upon exercise of options outstanding on the date of this Agreement or issued in accordance with this paragraph (i), (ii) pursuant to the Option Agreement, (iii) any transactions between HFP and a Subsidiary, (iv) in accordance with the HFP Stock Plans consistent with past practice, or (v) as grants of options to purchase HFP Common Stock to new employees, consistent with past hiring practices, provided that the number of shares subject to such options shall not exceed 20,000 for any individual or 100,000 in the aggregate) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it exists on the date of this Agreement; (j) other than for transactions in the ordinary course of business and transactions with HFP REIT on arms-length terms, pay, loan or advance (other than the payment of compensation) any amount to, or sell or transfer any properties or assets to, or enter into any agreement or arrangement with any officer, director or any affiliate or any employee or consultant; (k) except as permitted by Section 6.13 hereof, directly or indirectly initiate, solicit, encourage or otherwise facilitate (including by way of furnishing non-public information) any inquiries or the making of any proposal or offer with respect to a tender offer, merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of a significant portion of the assets or voting securities of, HFP and its Subsidiaries; (l) take any action that would (i) adversely affect, impede or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Option Agreement or the ability of ▇▇▇▇▇▇ or HFP to obtain any approval of any Federal, state, municipal, local or foreign government, securities, banking, savings and loan, insurance and other governmental or regulatory authority (each a "Regulatory Authority" and collectively, "Regulatory Authorities") required for the transactions contemplated by this Agreement and the Option Agreement or to perform its covenants and agreements under this Agreement and the Option Agreement, or (ii) prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code; (m) other than indebtedness of up to $1,000,000 and use of credit available under existing lines of credit (as set forth in Section 3.14 of the HFP Schedule), incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of HFP or any of its wholly-owned Subsidiaries to HFP or any of its wholly-owned Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity; (n) except in the ordinary course of business through the exercise of remedies available under applicable Financing Documents and upon consultation with ▇▇▇▇▇▇, acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company or other business organization or division thereof or enter into or acquire any interest in any Joint Venture; (o) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; (p) other than in the ordinary course of business, consistent with past practice, modify its credit criteria and practices in any material respect; (q) fail to use commercially reasonable efforts to maintain any license required for the conduct of its business; (r) fail to use commercially reasonable efforts to continue to collect its accounts receivable and loan payments consistent with past practices; (s) make any commitments or agreements for capital expenditures or capital additions or betterments exceeding in the aggregate $250,000, except such as may be involved in ordinary repair, maintenance or replacement of its assets; (t) settle or compromise any material liability for Taxes, or file any material Tax Return; (u) take or omit to take any action that is reasonably likely to result in a breach of any contract, commitment or obligation if the result would, individually or in the aggregate, have a HFP Material Adverse Effect; (v) acquire, or agree to acquire, in a single transaction or in a series of related transactions, any business or assets (other than materials and supplies purchased in the ordinary course, consistent with past practice or in connection with a foreclosure); or (w) agree in writing or otherwise to take any of the foregoing actions.
Appears in 2 contracts
Sources: Merger Agreement (Healthcare Financial Partners Inc), Merger Agreement (Heller Financial Inc)
Forbearances. Except as set forth in this Section 5.2 or ------------ in Section 5.2 of the HFP Schedule, on Schedule 4.02 or as otherwise expressly contemplated or permitted by this Agreement or the Option Agreement, during the period from the date of this Agreement to the Effective Time, HFP Seller shall not and shall not permit any of its Subsidiaries to, without the prior written consent of ▇▇▇▇▇▇ (which consent shall not be unreasonably withheld):Buyer:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly-owned Subsidiary of HFP Seller to HFP Seller or another wholly-owned Subsidiary of HFPSeller);, except that Seller may (i) declare and pay cash dividends on the Seller Common Stock of not more than $.17 per share per quarterly period and (ii) declare and pay cash dividends on Seller Preferred Stock of not more than $.8125 per share per quarterly period; provided, that the parties agree to consult with respect to the last quarterly dividend of Seller payable prior to the Effective Time with the object of assuring that the shareholders of Seller do not receive a shortfall or a premium based on the record and payment dates of their last dividend prior to the Merger and the record and payment dates of the first dividend of Buyer following the Merger; or
(b) enter into or amend any collective bargaining agreement or employment, severance or similar agreement or arrangement with any director or officer of- ficer or employee employee, or materially modify any of the HFP Benefit Plans or institute any new HFP Benefit Seller Employee Plans or grant any salary or wage increase or ma- terially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation or bonuses to employees consistent with past practice and timing practice, or (ii) as required by law or contract;; or
(c) authorize, recommendrecommend (subject to the fiduciary duties of Seller's Board of Directors, proposebased upon written advice of counsel to Seller, which counsel is reasonably acceptable to Buyer), propose or announce an intention to authorize, so recommend or propose, or enter into an agreement agree- ment in principle with respect to, any merger, consolidation consolida- tion or business combinationcombination (other than the Merger), any acquisition or disposition of a business that would be material to HFP or a material amount of assetsassets or securities, including loan servicing rights, loans any disposition of a material amount of assets or securities as well as securi- ties or any release or relinquishment of any material contract rights provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries;con- tract rights; or
(d) other than for transactions in the ordinary course of business consistent with past practice, enter into any material contract or agreement, or modify any Contract or Financing Document in a manner adverse to HFP or any its Subsidiaries;
(e) sell, transfer, convey, assign, mortgage or pledge any of its properties or assets involving amounts in excess of $100,000, except in the ordinary course of business consistent with past practice;
(f) settle any material claim, action or proceeding against HFP or any of its Subsidiaries involving money damages in excess of $100,000, except in the ordinary course of business consistent with past practice;
(g) initiate any litigation or arbitration proceeding, except in the ordinary course of business;
(h) propose or adopt any amendments to the HFP Charter its articles of incorporation, association or HFP Bylaws, other charter document or the charter or bylaws of any Subsidiary;bylaws; or
(ie) issue, sell, grant, confer or award any of its capital securities or any debt securities having the right to vote on matters on which stockholders may vote, or rights to acquire such securities, or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its capital securities, whether pursuant to the terms of such capital securities or otherwise Equity Securities (except for that Seller may (i) issue shares of HFP Seller Common Stock issued upon exercise of options Seller Stock Op- tions outstanding on the date of this Agreement or issued in accordance with this paragraph (i)Agreement, (ii) pursuant to issue shares of Seller Common Stock upon the Option Agreementconversion of Seller Preferred Stock, (iii) any transactions between HFP and a Subsidiaryissue shares of Seller Common Stock as contemplated by the Seller's Supplemental Pension Plan, or (iv) in accordance with the HFP Stock Plans consistent with past practice, or (v) as grants issue shares of options to purchase HFP Seller Common Stock pursuant to new employees, consistent with past hiring practices, provided that the number of shares subject to such options shall not exceed 20,000 for any individual or 100,000 in the aggregateSeller's dividend reinvestment plan) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it exists existed on the date of this Agree- ment; or
(f) purchase, redeem, retire, repurchase, or ex- change, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise; pro- vided, however, that Seller shall be permitted to purchase up to 6,973,380 shares of Seller Common Stock (as contem- plated by Section 5.17) at a purchase price per share not to exceed $22.00 per share; or
(i) without first consulting with Buyer, enter into, renew or increase any loan or credit commitment (in- cluding stand-by letters of credit) to, or invest or agree to invest in any person or entity or modify any of the ma- terial provisions or renew or otherwise extend the maturity date of any existing loan or credit commitment (col- lectively, "Lend to") in an amount in excess of (A) $500,000 in respect of commercial transactions, including commercial real estate transactions ("Commercial Transac- tions") and (B) $1,000,000 in respect of residential real estate transactions, or in an amount which, or when ag- gregated with any and all loans or credit commitments to such person or entity, would be in excess of (A) $500,000 in respect of commercial transactions, including Commercial Transactions and (B) $1,000,000 in respect of residential real estate transactions; (ii) without first obtaining the written consent of Buyer, lend to any person or entity in an amount in excess of $750,000 in respect of Commercial Transactions or in an amount which, when aggregated with any and all loans or credit commitments to such person or entity, would be in excess of $750,000 in respect of Com- mercial Transactions; (iii) Lend to any person other than in accordance with lending policies as in effect on the date hereof; provided that in the case of clauses (ii) and (iii) Seller or any Seller Subsidiary may make any such loan in the event (A) Seller or any Seller Subsidiary has delivered to Buyer or its designated representative a no- ▇▇▇▇ of its intention to make such loan and such informa- tion as Buyer or its designated representative may reason- ably require in respect thereof and (B) Buyer or its desig- nated representative shall not have reasonably objected to such loan by giving written or facsimile notice of such objection within two business days following the delivery to Buyer of the notice of intention and information as aforesaid; or (iv) Lend to any person or entity any of the loans or other extensions of credit to which or investments in which are on a "watch list" or similar internal report of Seller or any Seller Subsidiary (except those denoted "pass" thereon), in an amount in excess of $250,000; pro- vided, however, that nothing in this paragraph shall pro- hibit Seller or any Seller Subsidiary from honoring any contractual obligation in existence on the date of this Agreement. Notwithstanding the provisions of clauses (i) and (ii) of this Section 4.02(g), Seller shall be autho- rized without first consulting with Buyer or obtaining Buyer's prior written consent, to increase the aggregate amount of any credit facilities theretofore established in favor of any person or entity (each a "Pre-Existing Facil- ity"), provided that the aggregate amount of any and all such increases with respect to any Pre-Existing Facility shall not without Buyer's prior written consent, which con- sent shall not be unreasonably withheld or delayed, be in excess of the lesser of five percent (5%) of such Pre- Existing Facility or $25,000; or;
(jh) other than for transactions in the ordinary course of business and transactions with HFP REIT on arms-length terms, pay, loan or advance (other than the payment of compensation) any amount to, or sell or transfer any properties or assets to, or enter into any agreement or arrangement with any officer, director or any affiliate or any employee or consultant;
(k) except as permitted by Section 6.13 hereof, directly or indirectly (including through its officers, directors, employees or other representatives) initiate, solicitsolicit or encourage any discussions, encourage or otherwise facilitate (including by way of furnishing non-public information) any inquiries or proposals with any third party relating to the making disposi- tion of any proposal or offer with respect to a tender offer, merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of a significant portion of the assets or voting securities of, HFP and its Subsidiaries;
(l) take any action that would (i) adversely affect, impede or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Option Agreement or the ability of ▇▇▇▇▇▇ or HFP to obtain any approval of any Federal, state, municipal, local or foreign government, securities, banking, savings and loan, insurance and other governmental or regulatory authority (each a "Regulatory Authority" and collectively, "Regulatory Authorities") required for the transactions contemplated by this Agreement and the Option Agreement or to perform its covenants and agreements under this Agreement and the Option Agreement, or (ii) prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(m) other than indebtedness of up to $1,000,000 and use of credit available under existing lines of credit (as set forth in Section 3.14 of the HFP Schedule), incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of HFP or any of its wholly-owned Subsidiaries to HFP or any of its wholly-owned Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(n) except in the ordinary course of business through the exercise of remedies available under applicable Financing Documents and upon consultation with ▇▇▇▇▇▇, acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company or other business organization or division thereof or enter into or acquire any interest in any Joint Venture;
(o) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines;
(p) other than in the ordinary course of business, consistent with past practice, modify its credit criteria and practices in any material respect;
(q) fail to use commercially reasonable efforts to maintain any license required for the conduct of its business;
(r) fail to use commercially reasonable efforts to continue to collect its accounts receivable and loan payments consistent with past practices;
(s) make any commitments or agreements for capital expenditures or capital additions or betterments exceeding in the aggregate $250,000, except such as may be involved in ordinary repair, maintenance or replacement of its assets;
(t) settle or compromise any material liability for Taxes, or file any material Tax Return;
(u) take or omit to take any action that is reasonably likely to result in a breach of any contract, commitment or obligation if the result would, individually or in the aggregate, have a HFP Material Adverse Effect;
(v) acquire, or agree to acquire, in a single transaction or in a series of related transactions, any business or assets (other than materials and supplies purchased in of Seller or any Seller Subsidiary or the ordinary course, consistent with past practice acquisition of Equity Securities of Seller or in connection with a foreclosure); or
(w) agree in writing any Seller Subsidiary or otherwise to take any of the foregoing actions.the
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Mercantile Bancorporation Inc), Agreement and Plan of Reorganization (Roosevelt Financial Group Inc)
Forbearances. Except as set forth in this Section 5.2 or ------------ in Section 5.2 of Schedule 5.2, the HFP ScheduleShareholders shall cause the Companies, or as otherwise expressly contemplated or permitted by this Agreement or the Option Agreement, during the period from the date hereof until the earlier of this Agreement to (i) the Effective Time, HFP shall not and shall not permit any of its Subsidiaries toClosing or (ii) termination under Article IX, without the prior written consent of Buyer, not to:
(i) sell, assign, lease or transfer any of the Assets that exceed $10,000 individually or $25,000 in the aggregate in book value or fair market value, other than inventory sold or disposed of in the ordinary course of business, consistent with past practice, to Buyer or persons who are not Affiliates (other than the ▇▇▇▇▇▇▇'▇ (which consent shall not be unreasonably withheld):
(aCompanies and their Subsidiaries) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly-owned Subsidiary of HFP to HFP or another wholly-owned Subsidiary of HFP)the ▇▇▇▇▇▇▇'▇ Companies for fair consideration;
(bii) cancel or terminate, or amend, modify or waive any material term of, any material contract;
(iii) (A) increase the compensation payable or to become payable to any of its directors or officers, (B) increase the base compensation payable or to become payable to any of its Personnel who are not directors or officers, except for normal periodic increases in such base compensation (not exceeding, in each case, 5%) in the ordinary course of business, consistent with past practice, (C) increase the sales commission rate payable or to become payable to any of its Personnel who are not directors or officers, (D) grant, make or accrue any loan, bonus, severance, termination or continuation fee, incentive compensation (excluding sales commissions), service award or other like benefit, contingently or otherwise, to or for the benefit of any of its Personnel, except pursuant to the employee plans in effect as of the date hereof, (E) adopt, amend or cause any addition to or modification of any employee plan, other than (1) contributions made in the ordinary course of business, consistent with past practice or (2) the extension of coverage to any of its Personnel who became eligible after the date of this Agreement, (F) grant any additional stock options or performance unit grants or other interest under any employee plan, (G) enter into any new employment or amend consulting agreement or cause any written or oral termination, cancellation or amendment of any such employment or consulting agreement to which it is a party (except with respect to any employee at will without a written agreement), (H) enter into any collective bargaining agreement or employment, severance cause any termination or similar amendment of any collective bargaining agreement or arrangement with any director or officer or employee or modify any of the HFP Benefit Plans or institute any new HFP Benefit Plans or grant any salary or wage increase or increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation or bonuses to employees consistent with past practice and timing which it is a party or (iiI) as required by law or contract;
(c) authorize, recommend, proposewith respect to any Shareholder, or announce an intention to authorizeany Affiliate of any Shareholder, recommend grant, make or proposeaccrue any payment or distribution or other like benefit, contingently or otherwise, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a business that would be material to HFP or a material amount of assetsotherwise transfer Assets, including loan servicing rightsany payment of principal of or interest on any debt owed to any such Shareholder or Affiliate, loans or securities as well as any release or relinquishment of any material contract rights provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries;
(d) other than for transactions (1) any payments to such person in the ordinary course of business consistent with past practicein his capacity as an employee of the ▇▇▇▇▇▇▇'▇ Companies and (2) any transactions between the ▇▇▇▇▇▇▇'▇ Companies, enter into any material contract or agreement, or modify any Contract or Financing Document in a manner adverse to HFP or any its Subsidiariesthe ordinary course of business and on an arms' length basis;
(eiv) sell, transfer, convey, assign, mortgage make any capital expenditure or pledge commitment to make any of its properties or assets involving amounts capital expenditure in excess of $100,00050,000;
(v) execute (A) any lease for real property or (B) any lease for personal property involving annual payments in excess of $50,000;
(vi) make any payments or given any other consideration to customers or suppliers, except other than payments under, and in accordance with the terms of, contracts in effect at the time of such payment;
(vii) change its accounting methods, principles or practices, including any change in the application or interpretation of GAAP;
(A) issue or sell, or enter into any agreement obligating it to issue or sell (B) directly or indirectly redeem, purchase or otherwise acquire, or split, combine, reclassify or otherwise adjust, any class or series of capital stock, or any securities convertible into or exchangeable for capital stock or (C) declare or pay any dividend or other distribution in respect of any class or series of capital stock;
(A) incur any indebtedness for borrowed money or enter into any commitment to borrow money other than borrowings in the ordinary course of business under the Companies' working capital lines or (B) incur any obligations for any performance bonds, payment bonds, bid bonds, surety bonds, letters of credit, guarantees or similar instruments;
(x) take any action in anticipation of the execution of this Agreement or for any other reason to delay or defer expenses (including delay or postponement of capital expenditures or the payment of accounts payable), liabilities or obligations of any kind whatsoever or to accelerate any income, revenue, payment or similar item, other than in the ordinary course of business consistent with past practice;
(fxi) settle pay, discharge or satisfy any material claimliability, action other than any such payment, discharge or proceeding against HFP or any of its Subsidiaries involving money damages in excess of $100,000, except in the ordinary course of business consistent with past practice;
(g) initiate any litigation or arbitration proceeding, except satisfaction in the ordinary course of business;
(h) propose or adopt any amendments to the HFP Charter or HFP Bylaws, or the charter or bylaws of any Subsidiary;
(i) issue, sell, grant, confer or award any of its capital securities or any debt securities having the right to vote on matters on which stockholders may vote, or rights to acquire such securities, or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its capital securities, whether pursuant to the terms of such capital securities or otherwise (except for (i) shares of HFP Common Stock issued upon exercise of options outstanding on the date of this Agreement or issued in accordance with this paragraph (i), (ii) pursuant to the Option Agreement, (iii) any transactions between HFP and a Subsidiary, (iv) in accordance with the HFP Stock Plans consistent with past practice, or (v) as grants of options to purchase HFP Common Stock to new employees, consistent with past hiring practices, provided that practice of (A) liabilities reflected or reserved against on the number of shares subject to such options shall not exceed 20,000 for any individual or 100,000 balance sheets in the aggregate) Financial Statements or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it exists on the date of this Agreement;
(j) other than for transactions in the ordinary course of business and transactions with HFP REIT on arms-length terms, pay, loan or advance (other than the payment of compensation) any amount to, or sell or transfer any properties or assets to, or enter into any agreement or arrangement with any officer, director or any affiliate or any employee or consultant;
(k) except as permitted by Section 6.13 hereof, directly or indirectly initiate, solicit, encourage or otherwise facilitate (including by way of furnishing non-public information) any inquiries or the making of any proposal or offer with respect to a tender offer, merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of a significant portion of the assets or voting securities of, HFP and its Subsidiaries;
(l) take any action that would (i) adversely affect, impede or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Option Agreement or the ability of ▇▇▇▇▇▇ or HFP to obtain any approval of any Federal, state, municipal, local or foreign government, securities, banking, savings and loan, insurance and other governmental or regulatory authority (each a "Regulatory Authority" and collectively, "Regulatory Authorities") required for the transactions contemplated by this Agreement and the Option Agreement or to perform its covenants and agreements under this Agreement and the Option Agreement, or (ii) prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(m) other than indebtedness of up to $1,000,000 and use of credit available under existing lines of credit (as set forth in Section 3.14 of the HFP Schedule), incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of HFP or any of its wholly-owned Subsidiaries to HFP or any of its wholly-owned Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(n) except in the ordinary course of business through the exercise of remedies available under applicable Financing Documents and upon consultation with ▇▇▇▇▇▇, acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company or other business organization or division thereof or enter into or acquire any interest in any Joint Venture;
(o) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines;
(p) other than subsequent thereto in the ordinary course of business, consistent with past practice, modify its credit criteria or (B) liabilities under, and practices in accordance with the terms of, any material respectcontracts, licenses and permits and other commitments set forth in the Schedules;
(qxii) fail to use commercially reasonable efforts to maintain change or amend any license required for the conduct of its businesstheir articles of incorporation or bylaws or similar organizational documents;
(rA) fail to use commercially reasonable efforts to continue to collect its acquire (by merger, consolidation, acquisition of stock, other securities or assets or otherwise), (B) make a capital investment (whether through the acquisition of an equity interest, the making of a loan or advance or otherwise) in or (C) guarantee indebtedness for borrowed money of, (1) any Person or (2) any portion of the assets of any Person that constitutes a division or operating unit of such Person;
(xiv) mortgage or pledge, or otherwise make or suffer any Encumbrance (other than any Permitted Encumbrance) on, any of their material Assets or group of their Assets that is material in the aggregate;
(xv) revalue any of their Assets, including any write-off of notes or accounts receivable and loan payments or any increase in any reserve (other than in the ordinary course of business consistent with past practicespractice), involving in excess of $10,000 individually or $50,000 in the aggregate (such amounts to be calculated without netting any decrease);
(sxvi) make amend, cancel or terminate any commitments license or agreements for capital expenditures or capital additions or betterments exceeding in permit that is material to any of the aggregate $250,000, except such as may be involved in ordinary repair, maintenance or replacement of its assetsCompanies;
(txvii) settle cancel, waive or compromise release any material liability for Taxes, right or file any material Tax Return;
claim (uor series of related rights or claims) take or omit to take any action that is reasonably likely to result involving in a breach excess of any contract, commitment or obligation if the result would, $10,000 individually or $50,000 in the aggregate, have a HFP Material Adverse Effect;
(v) acquire, or agree to acquire, in a single transaction or in a series of related transactions, any business or assets (other than materials and supplies purchased in the ordinary course, consistent with past practice or in connection with a foreclosure); or
(wxviii) agree make any material change in writing the policies or otherwise practices relating to take selling practices, returns, discounts or other terms of sale or accounting therefor or in policies of employment; or entered into any contract to do any of the foregoing actionsforegoing.
Appears in 1 contract
Forbearances. Except as set forth in this Section 5.2 or ------------ in Section 5.2 of the HFP Schedule, or as otherwise expressly contemplated or permitted by this Agreement or the Option Agreementprovided herein, during the period from the date of this Agreement to the Effective Time, HFP shall not and shall not permit any of its Subsidiaries to, without the prior written consent of ▇Washington, ▇▇▇▇▇ (which consent shall not be unreasonably withheld):not:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock stock, except for cash dividends consistent in amount and timing with past practices (other however, increases in dividends may not exceed the average dividend increase since January 1, 1994, and may not result in a dividend to net income ratio higher than dividends from a wholly-owned Subsidiary of HFP to HFP or another wholly-owned Subsidiary of HFP)that experienced for the twelve months ended December 31, 1996;
(b) enter into or amend any collective bargaining agreement or employment, severance or similar agreement or arrangement with any director or officer or employee employee, or modify any of the HFP Benefit ▇▇▇▇▇ Employee Plans or institute security acquisition loans relating thereto (or prepay in whole or in part any new HFP Benefit Plans such loans) or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual bonuses and increases in compensation or bonuses to employees employees, in each case and in the aggregate consistent with past practice and timing or (ii) as to the extent required by law or contractlaw;
(c) negotiate, authorize, recommend, propose, propose or announce an intention to authorize, so recommend or propose, or enter into any discussion or an agreement in principle with respect to, any merger, consolidation or business combinationcombination (other than the Merger), any acquisition or disposition of a business that would be material to HFP or a material amount of assetsassets or securities, including loan servicing rights, loans any disposition of a material amount of assets or securities as well as or any release or relinquishment of any material contract rights provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiariesrights;
(d) other than for except as may be required to facilitate the consummation of the transactions in the ordinary course of business consistent with past practicecontemplated herein, enter into any material contract or agreement, or modify any Contract or Financing Document in a manner adverse to HFP or any its Subsidiaries;
(e) sell, transfer, convey, assign, mortgage or pledge any of its properties or assets involving amounts in excess of $100,000, except in the ordinary course of business consistent with past practice;
(f) settle any material claim, action or proceeding against HFP or any of its Subsidiaries involving money damages in excess of $100,000, except in the ordinary course of business consistent with past practice;
(g) initiate any litigation or arbitration proceeding, except in the ordinary course of business;
(h) propose or adopt any amendments to the HFP Charter its articles of incorporation or HFP Bylaws, or the charter or bylaws of any Subsidiarybylaws;
(ie) issue, sell, grant, confer or award any of its capital securities Equity Securities or effect any debt securities having stock split or adjust, combine, reclassify or otherwise change its capitalization as it exists on the right to vote on matters on which stockholders may vote, or rights to acquire such securities, or date of this Agreement;
(f) purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its capital securitiesEquity Securities, whether pursuant to the terms of such capital securities Equity Securities or otherwise (except for otherwise;
(i) shares of HFP Common Stock issued upon exercise of options outstanding on the date of this Agreement or issued in accordance with this paragraph (i)change its underwriting policies relating to lending activities, (ii) pursuant to the Option Agreementchange its deposit-taking policies, (iii) create any transactions between HFP and a Subsidiarynew lending or deposit products, or (iv) engage in accordance with the HFP Stock Plans consistent with past practice, or (v) as grants a new line of options to purchase HFP Common Stock to new employees, consistent with past hiring practices, provided that the number of shares subject to such options shall not exceed 20,000 for any individual or 100,000 in the aggregate) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it exists on the date of this Agreementbusiness;
(j) other than for transactions in the ordinary course of business and transactions with HFP REIT on arms-length terms, pay, loan or advance (other than the payment of compensation) any amount to, or sell or transfer any properties or assets to, or enter into any agreement or arrangement with any officer, director or any affiliate or any employee or consultant;
(k) except as permitted by Section 6.13 hereof, directly or indirectly initiate, solicit, encourage or otherwise facilitate (including by way of furnishing non-public information) any inquiries or the making of any proposal or offer with respect to a tender offer, merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of a significant portion of the assets or voting securities of, HFP and its Subsidiaries;
(lh) take any action that would (iA) adversely affect, materially impede or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Option Agreement or the ability of ▇Washington or ▇▇▇▇▇ or HFP to obtain any approval of any Federal, state, municipal, local or foreign government, securities, banking, savings and loan, insurance and other governmental or regulatory authority (each a "Regulatory Authority" and collectively, "Regulatory Authorities") Authority required for the transactions contemplated by this Agreement and the Option Agreement or to perform its covenants and agreements under this Agreement and the Option Agreement, or (iiB) prevent the Merger from qualifying as a "reorganization" reorganization within the meaning of Section 368(a) of the Code;
(mi) other than indebtedness in the ordinary course of up to $1,000,000 and use of credit available under existing lines of credit (as set forth in Section 3.14 of the HFP Schedule)business consistent with past practice, incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of HFP or any of its wholly-owned Subsidiaries to HFP or any of its wholly-owned Subsidiaries)money, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(n) except in the ordinary course of business through the exercise of remedies available under applicable Financing Documents and upon consultation with ▇▇▇▇▇▇, acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company or other business organization or division thereof or enter into or acquire any interest in any Joint Venture;
(o) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines;
(p) other than in the ordinary course of business, consistent with past practice, modify its credit criteria and practices in any material respect;
(q) fail to use commercially reasonable efforts to maintain any license required for the conduct of its business;
(r) fail to use commercially reasonable efforts to continue to collect its accounts receivable and loan payments consistent with past practices;
(s) make any commitments or agreements for capital expenditures or capital additions or betterments exceeding in the aggregate $250,000, except such as may be involved in ordinary repair, maintenance or replacement of its assets;
(t) settle or compromise any material liability for Taxes, or file any material Tax Return;
(u) take or omit to take any action that is reasonably likely to result in a breach of any contract, commitment or obligation if the result would, individually or in the aggregate, have a HFP Material Adverse Effect;
(v) acquire, or agree to acquire, in a single transaction or in a series of related transactions, any business or assets (other than materials and supplies purchased in the ordinary course, consistent with past practice or in connection with a foreclosure); or
(wj) agree in writing or otherwise to take any of the foregoing actionsactions or engage in any activity, enter into any transaction or take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act.
(k) ▇▇▇▇▇ shall permit at least one representative of Washington to attend each meeting of the Board of Directors of ▇▇▇▇▇ and its executive committee.
(l) ▇▇▇▇▇ shall provide to Washington such reports on litigation involving ▇▇▇▇▇ as Washington shall reasonably request; provided that ▇▇▇▇▇ shall not be required to divulge information to the extent that, in the good faith opinion of its counsel, by doing so, it would risk waiver of the attorney-client privilege to its detriment.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Washington Bancorp)
Forbearances. Except as set forth in this Section 5.2 or ------------ in Section 5.2 of the HFP Schedule, on Schedule 4.2 or as otherwise expressly contemplated or permitted by this Agreement or the Option Agreement, during the period from the date of this Agreement to the Effective Time, HFP Seller shall not and shall not permit any of its Subsidiaries to, without the prior written consent of ▇▇▇▇▇▇ (which consent shall not be unreasonably withheld):
(a) Buyer: declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly-owned Subsidiary of HFP Seller to HFP Seller or another wholly-owned Subsidiary of HFPSeller);
(b) , except that Seller may declare and pay cash dividends on the Seller Common Stock of not more than $.18 per share per quarterly period; provided, that Seller shall not declare any dividends on Seller Common Stock or Seller Preferred Stock during any quarter in which its stockholders will be entitled to receive any regular quarterly dividend on the shares of Buyer Common Stock to be issued in the Merger; or enter into or amend any collective bargaining agreement or employment, severance or similar agreement or arrangement with any director or officer or employee employee, or materially modify any of the HFP Benefit Plans or institute any new HFP Benefit Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation or bonuses to employees consistent with past practice and timing practice, or (ii) as required by law or contract;
(c) ; or authorize, recommend, propose, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combinationcombination (other than the Transactions), any acquisition or disposition of a business that would be material to HFP or a material amount of assetsassets (except in the usual course of business consistent with past practices), including loan mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights provided, however, that the foregoing shall not prohibit internal reorganizations rights; or consolidations involving existing Subsidiaries;
(d) other than for transactions in the ordinary course of business consistent with past practice, enter into any material contract or agreement, or modify any Contract or Financing Document in a manner adverse to HFP or any its Subsidiaries;
(e) sell, transfer, convey, assign, mortgage or pledge any of its properties or assets involving amounts in excess of $100,000, except in the ordinary course of business consistent with past practice;
(f) settle any material claim, action or proceeding against HFP or any of its Subsidiaries involving money damages in excess of $100,000, except in the ordinary course of business consistent with past practice;
(g) initiate any litigation or arbitration proceeding, except in the ordinary course of business;
(h) propose or adopt any amendments to the HFP Charter its articles of incorporation, association or HFP Bylaws, other charter document or the charter bylaws; or bylaws of any Subsidiary;
(i) issue, sell, grant, confer or award any of its capital securities Equity Securities (except shares of Seller Common Stock issued upon exercise of Seller Stock Options outstanding on the date of this Agreement (Seller agreeing to promptly notify Buyer of any such issuance of treasury or previously unissued shares)) or effect any debt securities having stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the right to vote on matters on which stockholders may vote, or rights to acquire such securities, date of this Agreement; or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its capital securitiesEquity Securities, whether pursuant to the terms of such capital securities Equity Securities or otherwise (except for (i) shares of HFP Common Stock issued upon exercise of options outstanding on the date of this Agreement otherwise; or issued in accordance with this paragraph (i), (ii) pursuant to the Option Agreement, (iii) any transactions between HFP and a Subsidiary, (iv) in accordance with the HFP Stock Plans consistent with past practice, or (v) as grants of options to purchase HFP Common Stock to new employees, consistent with past hiring practices, provided that the number of shares subject to such options shall not exceed 20,000 for any individual or 100,000 in the aggregate) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it exists on the date of this Agreement;
(j) other than for transactions in the ordinary course of business and transactions with HFP REIT on arms-length terms, pay, loan or advance (other than the payment of compensation) any amount to, or sell or transfer any properties or assets to, or enter into any agreement or arrangement with any officer, director or any affiliate or any employee or consultant;
(k) except as permitted by Section 6.13 hereof, directly or indirectly (including through its officers, directors, employees or other representatives) initiate, solicit, engage in or encourage or otherwise facilitate (including by way of furnishing non-public information) any discussions, inquiries or proposals with any third party relating to the making disposition of any proposal or offer with respect to a tender offer, merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of a significant portion of the business or assets of Seller or voting securities ofany Seller Subsidiary or the acquisition of Equity Securities of Seller or any Seller Subsidiary or the merger of Seller or any Seller Subsidiary with any person (other than Buyer) or any similar transaction (each such transaction being referred to herein as an "Acquisition Transaction"), HFP or provide any such person with information or assistance or negotiate with any such person with respect to an Acquisition Transaction, and its Subsidiaries;
(l) Seller shall notify Buyer orally of all the relevant details relating to all inquiries, indications of interest and proposals which it may receive with respect to any Acquisition Transaction within 24 hours of the receipt of any such inquiry, indication, or proposal; or take any action that would (iA) adversely affect, materially impede or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Option Agreement or the ability of ▇▇▇▇▇▇ Buyer or HFP Seller to obtain any approval of any Federal, state, municipal, local or foreign government, securities, banking, savings and loan, insurance and other governmental or regulatory authority (each a "Regulatory Authority" and collectively, "Regulatory Authorities") Authority required for the transactions contemplated by this Agreement and the Option Agreement or to perform its covenants and agreements under this Agreement and the Option Agreement, or (iiB) prevent the Merger transactions contemplated hereby from qualifying as a "reorganization" reorganization within the meaning of Section 368(a) of the Code;
(m) Internal Revenue Code or as a pooling of interests for accounting and financial reporting purposes; or other than indebtedness in the ordinary course of up business consistent with past practice (but not pursuant to $1,000,000 and use any outstanding letters of credit available under existing lines of credit (as set forth in Section 3.14 of the HFP Schedulecredit), incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of HFP or any of its wholly-owned Subsidiaries to HFP or any of its wholly-owned Subsidiaries)money, assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(n) except in the ordinary course of business ; or materially restructure or materially change its investment securities portfolio, through the exercise of remedies available under applicable Financing Documents and upon consultation with ▇▇▇▇▇▇purchases, acquire (by merger, consolidation sales or acquisition of stock or assets) any corporation, partnership, limited liability company or other business organization or division thereof or enter into or acquire any interest in any Joint Venture;
(o) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines;
(p) other than in the ordinary course of business, consistent with past practice, modify its credit criteria and practices in any material respect;
(q) fail to use commercially reasonable efforts to maintain any license required for the conduct of its business;
(r) fail to use commercially reasonable efforts to continue to collect its accounts receivable and loan payments consistent with past practices;
(s) make any commitments or agreements for capital expenditures or capital additions or betterments exceeding in the aggregate $250,000, except such as may be involved in ordinary repair, maintenance or replacement of its assets;
(t) settle or compromise any material liability for Taxesotherwise, or file any material Tax Return;
(u) take the manner in which the portfolio is classified or omit to take any action that is reasonably likely to result in a breach reported as of any contract, commitment the date of the Agreement; or obligation if the result would, individually or in the aggregate, have a HFP Material Adverse Effect;
(v) acquire, or agree to acquire, in a single transaction or in a series of related transactions, any business or assets (other than materials and supplies purchased in the ordinary course, consistent with past practice or in connection with a foreclosure); or
(w) agree in writing or otherwise to take any of the foregoing actions.actions or engage in any activity, enter into any transaction or take or omit to take any other act which would make any of the representations and warranties in Article II of this Agreement untrue or incorrect in any material respect if made anew after engaging in such activity, entering into such transaction, or taking or omitting such other act. ARTICLE V
Appears in 1 contract
Forbearances. Except as set forth in this Section 5.2 or ------------ in Section 5.2 of the HFP Schedule, on Schedule 4.02 or as otherwise expressly contemplated or permitted by this Agreement or the Option Agreement, during the period from the date of this Agreement to the Effective Time, HFP Seller shall not and shall not permit any of its Subsidiaries to, without the prior written consent of ▇▇▇▇▇▇ (which consent shall not be unreasonably withheld):Buyer:
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly-owned Subsidiary of HFP Seller to HFP Seller or another wholly-owned Subsidiary of HFPSeller);, except that Seller may declare and pay cash dividends on the Seller Common Stock of not more than $.15 per share per quarterly period; provided, that Seller shall not declare any dividends on Seller Common Stock or Seller Preferred Stock during any quarter in which its stockholders will be entitled to receive any regular quarterly dividend on the shares of Buyer Common Stock to be issued in the Merger; or
(b) enter into or amend any collective bargaining agreement or employment, severance or similar agreement or arrangement with any director or officer or employee employee, or materially modify any of the HFP Benefit Plans or institute any new HFP Benefit Seller Employee Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except (i) normal individual increases in compensation or bonuses to employees consistent with past practice and timing practice, or (ii) as required by law or contract;; or
(c) authorize, recommend, propose, propose or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combinationcombination (other than the Merger), any acquisition or disposition of a business that would be material to HFP or a material amount of assets, assets (except in the usual course of business consistent with past practices) including loan mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries;rights; or
(d) other than for transactions in the ordinary course of business consistent with past practice, enter into any material contract or agreement, or modify any Contract or Financing Document in a manner adverse to HFP or any its Subsidiaries;
(e) sell, transfer, convey, assign, mortgage or pledge any of its properties or assets involving amounts in excess of $100,000, except in the ordinary course of business consistent with past practice;
(f) settle any material claim, action or proceeding against HFP or any of its Subsidiaries involving money damages in excess of $100,000, except in the ordinary course of business consistent with past practice;
(g) initiate any litigation or arbitration proceeding, except in the ordinary course of business;
(h) propose or adopt any amendments to the HFP Charter its articles of incorporation, association or HFP Bylaws, other charter document or the charter or bylaws of any Subsidiary;bylaws; or
(ie) issue, sell, grant, confer or award any of its capital securities Equity Securities (except shares of Seller Common Stock issued upon exercise of Seller Stock Options outstanding on the date of this Agreement) or effect any debt securities having stock split or adjust, combine, reclassify or otherwise change its capitalization as it existed on the right to vote on matters on which stockholders may vote, date of this Agreement; or rights to acquire such securities, or (f) purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its capital securitiesEquity Securities, whether pursuant to the terms of such capital securities Equity Securities or otherwise (except for (i) shares of HFP Common Stock issued upon exercise of options outstanding on the date of this Agreement or issued in accordance with this paragraph (i), (ii) pursuant to the Option Agreement, (iii) any transactions between HFP and a Subsidiary, (iv) in accordance with the HFP Stock Plans consistent with past practice, or (v) as grants of options to purchase HFP Common Stock to new employees, consistent with past hiring practices, provided that the number of shares subject to such options shall not exceed 20,000 for any individual or 100,000 in the aggregate) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it exists on the date of this Agreement;
(j) other than for transactions in the ordinary course of business and transactions with HFP REIT on arms-length terms, pay, loan or advance (other than the payment of compensation) any amount to, or sell or transfer any properties or assets to, or enter into any agreement or arrangement with any officer, director or any affiliate or any employee or consultant;
(k) except as permitted by Section 6.13 hereof, directly or indirectly initiate, solicit, encourage or otherwise facilitate (including by way of furnishing non-public information) any inquiries or the making of any proposal or offer with respect to a tender offer, merger, reorganization, share exchange, consolidation or similar transaction involving, or any purchase of a significant portion of the assets or voting securities of, HFP and its Subsidiaries;
(l) take any action that would (i) adversely affect, impede or delay in any material respect the consummation of the transactions contemplated by this Agreement and the Option Agreement or the ability of ▇▇▇▇▇▇ or HFP to obtain any approval of any Federal, state, municipal, local or foreign government, securities, banking, savings and loan, insurance and other governmental or regulatory authority (each a "Regulatory Authority" and collectively, "Regulatory Authorities") required for the transactions contemplated by this Agreement and the Option Agreement or to perform its covenants and agreements under this Agreement and the Option Agreement, or (ii) prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code;
(m) other than indebtedness of up to $1,000,000 and use of credit available under existing lines of credit (as set forth in Section 3.14 of the HFP Schedule), incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of HFP or any of its wholly-owned Subsidiaries to HFP or any of its wholly-owned Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity;
(n) except in the ordinary course of business through the exercise of remedies available under applicable Financing Documents and upon consultation with ▇▇▇▇▇▇, acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company or other business organization or division thereof or enter into or acquire any interest in any Joint Venture;
(o) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines;
(p) other than in the ordinary course of business, consistent with past practice, modify its credit criteria and practices in any material respect;
(q) fail to use commercially reasonable efforts to maintain any license required for the conduct of its business;
(r) fail to use commercially reasonable efforts to continue to collect its accounts receivable and loan payments consistent with past practices;
(s) make any commitments or agreements for capital expenditures or capital additions or betterments exceeding in the aggregate $250,000, except such as may be involved in ordinary repair, maintenance or replacement of its assets;
(t) settle or compromise any material liability for Taxes, or file any material Tax Return;
(u) take or omit to take any action that is reasonably likely to result in a breach of any contract, commitment or obligation if the result would, individually or in the aggregate, have a HFP Material Adverse Effect;
(v) acquire, or agree to acquire, in a single transaction or in a series of related transactions, any business or assets (other than materials and supplies purchased in the ordinary course, consistent with past practice or in connection with a foreclosure)otherwise; or
(w) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract