Conditions Precedent to Closing The Local Church and Annual Conference acknowledge and agree that the obligations of the parties to effectuate the Closing on or about the Disaffiliation Date are expressly contingent and conditional on the following:
Conditions Precedent to Closing Date The occurrence of the Closing Date and the obligation of each Lender to make any Advance hereunder on the Closing Date shall be subject to the conditions precedent that the Administrative Agent shall have received on or before the Closing Date the following, each in form and substance reasonably satisfactory to the Administrative Agent, or, as applicable, the events set forth below shall have occurred (or such applicable conditions precedent have been waived by the Administrative Agent):
(a) each of the Facility Documents (other than the Collateral Administration and Agency Fee Letter) duly executed and delivered by the parties thereto, which shall each be in full force and effect;
(b) true and complete copies certified by a Responsible Officer of the Borrower of all Governmental Authorizations, Private Authorizations and Governmental Filings, if any, required in connection with the transactions contemplated by this Agreement and the other Facility Documents;
(c) each of the representations and warranties of the Borrower, the Collateral Manager and the Equityholder contained in the Facility Documents shall be true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date);
(d) one or more certificates of a Responsible Officer of each of the Borrower, the Equityholder and the Collateral Manager certifying (i) as to its Constituent Documents, (ii) as to its resolutions or other action of its general partner, board of directors or board of managers or members approving this Agreement and the other Facility Documents to which it is a party and the transactions contemplated hereby and thereby, (iii) that each of such Person’s representations and warranties made by such Person in the Facility Documents to which it is a party are true and correct as of the Closing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), (iv) that no Default or Event of Default has occurred and is continuing, and (v) as to the incumbency and specimen signature of each of its Responsible Officers authorized to execute the Facility Documents to which it is a party;
(e) proper financing statements, in acceptable form for filing on the Closing Date, under the UCC with the Secretary of State of the State of Delaware and any other applicable filing office in any applicable jurisdiction that the Administrative Agent deems reasonably necessary or desirable in order to perfect the interests in the Collateral contemplated by this Agreement and such further instruments and such further actions that the Administrative Agent deems reasonably necessary or desirable in order to perfect the Collateral Agent’s first-priority security interest in the Collateral;
(f) legal opinions (addressed to each of the Secured Parties) of (i) counsel to the Borrower, the Collateral Manager and the Equityholder, covering customary corporate matters (including opinions regarding no conflict with covered Laws and non-contravention with organizational documents and the status of the Borrower under the Investment Company Act), substantive non-consolidation of the Borrower with the Equityholder, the true sale nature of any transfers to the Borrower of Collateral Assets from the Equityholder, perfection of the Collateral Agent’s security interest in the Collateral and such other matters as the Administrative Agent and its counsel shall reasonably request and (ii) counsel to the Collateral Administrator, the Collateral Agent and the Custodian, covering corporate and enforceability matters, and such other matters as the Administrative Agent and its counsel shall reasonably request;
(g) reserved;
(h) all of the Covered Accounts shall have been established and shall be subject to the Account Control Agreement;
(i) evidence reasonably satisfactory to it that (i) all fees and expenses due and owing to the Administrative Agent on or prior to the Closing Date have been received or will be received contemporaneously with the Closing Date; and (ii) the reasonable and documented fees and expenses of counsel to the Administrative Agent and the Lenders, of counsel to the Custodian and of counsel to the Collateral Agent, the Securities Intermediary and the Collateral Administrator in connection with the transactions contemplated hereby, shall have been paid by the Borrower;
(j) evidence reasonably satisfactory to it that an amount equal to the Unfunded Reserve Required Amount with respect to the Collateral Assets to be acquired on the Closing Date shall have been deposited into the Unfunded Reserve Account;
(k) a solvency certificate reasonably satisfactory to it from an authorized signatory of the Borrower and the Equityholder;
(l) with respect to any Advance to be made on the Closing Date, the Lenders and the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance demonstrating that immediately after the making of such initial Advance, the Borrowing Base Test shall be satisfied;
(m) the Borrower shall have instructed all Obligors or, if applicable, the administrative agents, on the Collateral Assets (or, in the case of Participation Interests, the related seller of such Participation Interest) that all payments shall be made directly to the Collection Account and all Collections received by the Borrower or its Affiliates with respect to the Collateral shall be held in trust for the benefit of the Collateral Agent on behalf of the Secured Parties; and
(n) sufficiently in advance of the Closing Date, (x) all documentation and other information required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (y) if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in relation to the Borrower.
Closing Closing Deliveries (a) The closing of the Transaction (the “Closing”) shall take place at the offices of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, P.C., 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, at 10:00 a.m. local time on the date hereof, or at such other place, date and time as Sellers and Purchaser may agree. All deliveries to be made or other actions to be taken at the Closing shall be deemed to occur simultaneously, and no such delivery or action shall be deemed complete until all such deliveries and actions have been completed. The date and time at which the Closing actually occurs is referred to herein as the “Closing Date”.
(b) At the Closing, each Seller will deliver, or cause to be delivered, to Purchaser the following:
(i) the aggregate number of Shares owned by such Seller on the Closing Date and set forth opposite such Seller’s name on Schedule A, evidenced by a stock certificate or stock certificates, duly endorsed for transfer by delivery or accompanied by stock powers duly executed in blank (in each case, if requested by Purchaser, with signatures thereon duly guaranteed or notarized) and any other documents that are necessary to transfer to Purchaser good and marketable title to all such Shares free and clear of all Liens; and
(ii) all other instruments, agreements, certificates and documents required to be delivered by such Seller at or prior to the Closing Date pursuant to this Agreement.
(c) At the Closing, Purchaser will deliver, or cause to be delivered, the following to each Seller:
(i) the amount set forth opposite each Seller’s name on Schedule A by wire transfer of immediately available funds to an account designated in writing by each such Seller; and
(ii) all other instruments, agreements, certificates and documents required to be delivered by Purchaser at or prior to the Closing Date pursuant to this Agreement.
Conditions Precedent to the Closing The obligations of each Noteholder to consummate the transactions contemplated by the Transaction Documents are subject to the satisfaction or waiver by the Required Noteholders on the Closing Date of each of the following conditions precedent:
(a) The Noteholders or their counsel shall have received a notice of closing (the “Notice of Closing”) in the form of Schedule 7.2(a) at least five Business Days prior to the Closing, or such shorter period as the Company and the Required Noteholders shall agree.
(b) The Company shall have duly issued and delivered to such Noteholder or their counsel, in accordance with ARTICLE II, the Amended Notes and New Warrants to be delivered to such Noteholder at the Closing.
(c) Each of the Transaction Documents shall be in full force and effect and no term or condition thereof shall have been amended, waived or otherwise modified without the prior written consent of the Required Noteholders.
(d) The representations and warranties of the Company set forth in ARTICLE V shall be true and correct as of the Closing with the same effect as though such representations and warranties had been made on and as of the Closing (except where any such representation and warranty speaks by its terms as of a different date, in which case it shall be true and correct as of such date), and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(e) The Company shall have performed all obligations required to be performed by it at or prior to the Closing under the Transaction Documents to which it is a party, and such Noteholder shall have received a certificate signed on behalf of the Company by an officer of the Company to such effect.
(f) No Default or Event of Default shall have occurred and be continuing.
(g) There is not any litigation or proceeding pending or threatened which seeks to restrain or invalidate the transactions contemplated by this Agreement.
(h) The Company shall have delivered, or caused to be delivered, to the Noteholders or their counsel, all such other documents and agreements reasonably requested by the Noteholders in connection with the consummation of the transactions contemplated by this Agreement.
Conditions Precedent to the Closing Date The obligations of each L/C Issuer and each Lender to make the initial Credit Extensions on the Closing Date (if any) shall, in each case, be subject to the following conditions:
(a) The Administrative Agent’s receipt of the following, each of which shall be originals, facsimiles or “pdf” or similar electronic format (followed promptly by originals) unless otherwise specified, each properly executed by an Officer of the signing Loan Party each in form and substance reasonably satisfactory to the Administrative Agent:
(i) a Note executed by the Borrower in favor of each Lender that has requested a Note at least two Business Days prior to the Closing Date;
(ii) executed copies of (x) this Agreement, and (y) each Security Document set forth on Schedule 4.01(a)(ii), executed by each Loan Party thereto, together with:
(A) evidence that all filings under the UCC shall have been taken, completed or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent; and
(B) any other documents and instruments as may be necessary or advisable in the reasonable opinion of the Administrative Agent to vest in the Administrative Agent valid and subsisting first priority perfected Liens on the properties purported to be subject to the Security Documents set forth on Schedule 4.01(a)(ii), enforceable against all third parties in accordance with their terms;
(iii) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Officers of each Loan Party as the Administrative Agent may reasonably require evidencing the identity, authority and capacity of each Officer thereof authorized to act as an Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party;
(iv) an opinion from (A) Milbank LLP, counsel to the Loan Parties, and (B) local or other counsel in each of the jurisdictions listed on Schedule 4.01(a)(iv), in each case as reasonably requested by the Administrative Agent, in the case of each of clauses (A) and (B), in form and substance reasonably satisfactory to the Administrative Agent;
(v) a certificate attesting to the Solvency of the Borrower and its Subsidiaries (taken as a whole) on the Closing Date after giving effect to the Transactions, from the Chief Financial Officer of the Borrower, substantially in the form attached hereto as Exhibit J;
(vi) a certificate attesting to the compliance with clauses (d), (e), (f) and (h) of this Section 4.01 on the Closing Date from an Officer of the Borrower; and
(vii) if any Loans are to be made on the Closing Date, a Committed Loan Notice pursuant to Section 2.02.
(b) All reasonable fees and out-of-pocket expenses due and payable to the Lenders, the Arrangers and the Administrative Agent and required to be paid on or prior to the Closing Date pursuant to Agency Fee Letter shall have been paid or shall have been authorized to be deducted from the proceeds of the initial funding under the Facilities, so long as any such fees or expenses not expressly set forth in the Agency Fee Letter have been have been invoiced not less than three business days prior to the Closing Date.
(c) The Administrative Agent and the Lenders shall have received at least three Business Days prior to the Closing Date, to the extent requested in writing at least seven Business Days prior to the Closing Date, all documentation and other information that the Administrative Agent and the Lenders reasonably determine is necessary in order to allow the Administrative Agent and the Lenders to comply with applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation.
(d) The representations and warranties of the Borrower and each other Loan Party contained in Article 5 hereof shall be true and correct in all material respects; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects.
(e) There has been no change, occurrence or development since September 30, 2020 that could reasonably be expected to have a Material Adverse Effect.
(f) At the time of and immediately after giving effect to the Transactions, no Default shall have occurred and be continuing.
(g) [Reserved].
(h) Prior to or substantially concurrently with the Closing Date, (i) the 2026 Senior Secured Notes shall have been issued and (ii) the Existing Credit Agreement shall have been paid off in full and terminated and all liens thereunder shall have been released pursuant to a customary payoff letter reasonably satisfactory to the Administrative Agent.
CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE Buyer's obligation to purchase the Shares and to take the other actions required to be taken by Buyer at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Buyer, in whole or in part):
CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE Purchaser's obligation to purchase the Shares and to take the other actions required to be taken by Purchaser at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Purchaser, in whole or in part):
CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE Sellers' obligation to sell the Shares and to take the other actions required to be taken by Sellers at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived by Sellers, in whole or in part):
Buyer’s Closing Deliveries At the Closing, Buyer shall deliver or cause to be delivered the following:
Closing Deliverables (a) At the Closing, the Company will deliver or cause to be delivered to OmniLit:
(i) a certificate signed by an officer of the Company, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.2(a) and Section 9.2(b) have been fulfilled (the “Company Closing Certificate”);
(ii) evidence reasonably satisfactory to the OmniLit that the requirements set forth in Section 3.4 have been fulfilled;
(iii) the written resignations of all of the directors of the Company (other than any such Persons identified as initial directors of the Surviving Corporation, in accordance with Section 2.6), effective as of the Effective Time;
(iv) a certificate of the secretary of the Company certifying the resolutions of the board of directors of the Company approving and authorizing the execution, delivery and performance of this Agreement and its Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby (together with an incumbency and signature certificate regarding the officer(s) signing on behalf of the Company);
(v) the Registration Rights Agreement, duly executed by the Major Company Stockholders who have elected to execute the Registration Rights Agreement;
(vi) the Sponsor Support Agreement, duly executed by an officer of the Company; and
(vii) a Certificate of Good Standing for the Company from the Secretary of State of the State of Delaware;
(viii) a certificate on behalf of the Company, prepared in a manner consistent and in accordance with the requirements of Treasury Regulations Sections 1.897-2(g), (h) and 1.1445-2(c)(3), certifying that no interest in the Company is, or has been during the relevant period specified in Section 897(c)(1)(A)(ii) of the Code, a “United States real property interest” within the meaning of Section 897(c) of the Code, and a form of notice to the IRS prepared in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).
(b) At the Closing, OmniLit will deliver or cause to be delivered:
(i) to the Exchange Agent, the number of shares of OmniLit Post-Merger Class A Common Stock equal to the portion of the Aggregate Merger Consideration to be paid to holders of Company Common Stock for further distribution to the Company’s stockholders pursuant to Section 3.2, provided, that, for the avoidance of doubt, such shares shall be delivered immediately following the effectiveness of the OmniLit Post-Merger Charter;
(ii) to the Company, a certificate signed by an officer of OmniLit, dated the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section 9.3(a) and Section 9.3(b) have been fulfilled (the “OmniLit Closing Certificate”);
(iii) to the Company, the Registration Rights Agreement, duly executed by duly authorized representatives of OmniLit and the Sponsor;
(iv) the Sponsor Support Agreement, duly executed by the Sponsors (as defined therein) and an officer of OmniLit; and
(v) to the Company, the written resignations of all of the directors and officers of OxxxXxx and Mxxxxx Sub (other than those Persons identified as the initial directors and officers, respectively, of OmniLit after the Effective Time, in accordance with the provisions of Section 2.6 and Section 7.6), effective as of the Effective Time.
(c) On the Closing Date, concurrently with the Effective Time, OmniLit shall pay or cause to be paid by wire transfer of immediately available funds, without duplication, (i) (A) the OmniLit Transaction Expenses as set forth on OmniLit Transaction Expenses Certificate, and (B) any amounts outstanding under any Working Capital Loans, and (ii) the Company Transaction Expenses as set forth on Company Transaction Expenses Certificate; provided, that any Company Transaction Expenses due to current or former employees, independent contractors, officers, or directors of the Company or any of its Subsidiaries shall be paid to the Company for further payment to such employee, independent contractor, officer or director through the Company’s payroll.
