OR TO GUARANTEE INDEBTEDNESS OF THE BORROWER OR ANY OTHER
SUBSIDIARY; PROVIDED THAT (A) THE FOREGOING SHALL NOT APPLY TO RESTRICTIONS AND
CONDITIONS IMPOSED BY LAW OR ANY AGREEMENT IMPOSED OR CONSTRUCTIVELY IMPOSED BY
A BANKING REGULATOR, (B) THE FOREGOING SHALL NOT APPLY TO CUSTOMARY RESTRICTIONS
AND CONDITIONS CONTAINED IN THE ISSUANCE OF ANY PREFERRED STOCK THAT IS
PERMITTED PURSUANT TO THIS AGREEMENT, AND (C) THE FOREGOING SHALL NOT APPLY TO
ANY SUCH RESTRICTIONS AGREED TO BEFORE THE EFFECTIVE DATE.
(J)
TRANSFERS.
THE BORROWER WILL NOT, NOR WILL THE BORROWER PERMIT
ANY SUBSIDIARY TO, DIRECTLY OR INDIRECTLY, TRANSFER ANY ASSETS, IF SUCH TRANSFER
WOULD MATERIALLY RESTRICT OR IMPOSE ANY CONDITION UPON THE ABILITY OF ANY
SUBSIDIARY TO PAY DIVIDENDS OR OTHER DISTRIBUTIONS WITH RESPECT TO ANY SHARES OF
ITS CAPITAL STOCK OR TO MAKE OR REPAY THE LOAN OR ANY OTHER LOANS OR ADVANCES TO
THE BORROWER OR ANY OTHER SUBSIDIARY OR TO GUARANTEE INDEBTEDNESS OF THE
BORROWER OR ANY OTHER SUBSIDIARY.
(k)
The Borrower shall not, and shall ensure that each other member of
the ERISA Group shall not:
(i) adopt any Pension Plan or agree to contribute to
a Multiemployer Plan without the consent of the Lender; (ii) terminate any
Pension Plan so as to incur any material liability to the PBGC; (iii) fail to
pay to any Pension Plan any contribution which it is obligated to pay under the
terms of such Pension Plan, if such failure would cause such plan to have any
material accumulated funding deficiency under Section 412 of the Code, whether
or not waived; or (iv) allow or suffer to exist any event or condition, which
presents a material risk of termination by the PBGC of any Pension Plan, to the
extent that the occurrence or nonoccurrence of such event or condition is within
the control of it or any other member of the ERISA Group.
38
SECTION 7.03
FINANCIAL COVENANTS.
UNTIL SATISFACTION IN FULL OF ALL
THE OBLIGATIONS OF THE BORROWER UNDER THE CREDIT DOCUMENTS AND TERMINATION OF
THE COMMITMENTS OF THE LENDER HEREUNDER, THE BORROWER WILL:
(A)
RETURN ON AVERAGE ASSETS.
NOT PERMIT THE RETURN ON AVERAGE ASSETS
RATIO OF THE BORROWER TO BE LESS THAN (I) 0.70% FOR THE FIRST TWO YEARS FROM THE
EFFECTIVE DATE AND (II) 0.75% THEREAFTER, AS MEASURED AS OF THE LAST DAY OF EACH
FISCAL YEAR.
(B)
NON PERFORMING ASSETS / TOTAL LOAN ASSETS + OREO.
WITH RESPECT TO
BANK SUBSIDIARY, NOT PERMIT THE RATIO OBTAINED BY DIVIDING THE VALUE OF (X) NON
PERFORMING LOANS BY (Y) THE SUM OF TOTAL LOAN ASSETS AND OREO TO BE GREATER THAN
1.50% AS OF THE LAST DAY OF EACH FISCAL QUARTER.
(C)
ALLL/NPL RATIO.
WITH RESPECT TO BANK SUBSIDIARY, NOT PERMIT THE
ALLL/NPL RATIO AS OF THE END OF ANY FISCAL YEAR TO BE LESS THAN 100%.
(D)
REGULATORY CAPITAL REQUIREMENTS.
MAINTAIN, AND CAUSE EACH
SUBSIDIARY THAT IS A BANKING BUSINESS SUBSIDIARY TO MAINTAIN, AT THE END OF EACH
FISCAL QUARTER, (I) SUCH AMOUNT OF REGULATORY