Common use of Second Closing Conditions Clause in Contracts

Second Closing Conditions. (a) The obligations of the Company hereunder in connection with the Closing are subject to the following conditions being met: (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Second Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); (ii) all obligations, covenants and agreements of each Purchaser required to be performed at or prior to the Second Closing Date shall have been performed; and (iii) the delivery by each Purchaser of the items set forth in Section 2.4(b) of this Agreement. (b) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met: (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Second Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date) except as disclosed in Disclosure Schedule as updated by the Company to reflect changes since the Closing Date through the Second Closing Date; (ii) the Company shall have obtained audits of the Company’s financial statements for the years ending December 31, 2019 and 2020 by a PCAOB-audited firm, and the Company, and, if there is a counterparty necessary to the Going Public Transaction, such counterparty, shall each have delivered an officer’s certificate to the Purchasers attesting to such party’s readiness to close the Going Public Transaction; (iii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed; and (iv) the delivery by the Company of the items set forth in Section 2.4(a) of this Agreement.

Second Closing Conditions. (a) The obligations of the Company hereunder to effect the amendments set forth in connection with Sections 1, 2 and 3 of this Amendment and to consummate the Second Closing pursuant to Section 5 of this Amendment are subject to each of the following conditions being met: (i) The Second Closing Purchaser’s shall have delivered their respective Second Closing Subscription Amount as to the Second Closing by wire transfer; (ii) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Second such Closing Date of the representations and warranties of the Purchasers contained herein (unless as of a specific date therein in which case they shall be accurate as of such date); (iiiii) The Second Closing Purchasers shall have performed and complied with all obligationscovenants, covenants agreements, obligations and agreements of each Purchaser conditions contained in this Amendment that are required to be performed at or prior to complied with by them on or before the Second Closing Date shall have been performed; and (iii) the delivery by each Purchaser of the items set forth in Section 2.4(b) of this AgreementClosing. (b) The respective obligations of the Second Closing Purchasers hereunder in connection with the Second Closing are subject to each of the following conditions being met: (i) the delivery by the Company of the Additional Debentures and Additional Warrants; (ii) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Second such Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date) except as disclosed in Disclosure Schedule as updated by the Company to reflect changes since the Closing Date through the Second Closing Date; (ii) the Company shall have obtained audits of the Company’s financial statements for the years ending December 31, 2019 and 2020 by a PCAOB-audited firm, and the Company, and, if there is a counterparty necessary to the Going Public Transaction, such counterparty, shall each have delivered an officer’s certificate to the Purchasers attesting to such party’s readiness to close the Going Public Transactiontherein); (iii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Second Closing Date shall have been performed; (iv) there shall have been no Material Adverse Effect with respect to the Company since the date hereof; and (ivv) from the delivery date hereof to the Second Closing Date, trading in the Common Stock shall not have been suspended by the Company Commission or the Company’s principal Trading Market and, at any time prior to such Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the items set forth in Section 2.4(a) reasonable judgment of this Agreementsuch Purchaser, makes it impracticable or inadvisable to purchase the Securities at the Second Closing Date.

Second Closing Conditions. (ai) The respective obligations of the Investor and the Company to consummate the Second Closing are each subject to the satisfaction or written waiver by the Company and the Investor of the following conditions prior to the Second Closing: (A) The First Closing shall have been consummated in accordance with the terms of this Agreement; (B) The Rights Offering shall have been consummated in accordance with the terms of this Agreement; (C) The Company shall have received (or shall receive concurrently with the Second Closing) proceeds from the sale of the Common Shares pursuant to the Investment and the Rights Offering, in each case at the purchase prices set forth herein and at a price per share of $3.00, in an aggregate amount of not less than $55,000,000; provided that, notwithstanding anything in this Agreement to the contrary, the Investor will not be required to purchase Common Shares in connection with its backstop commitment in the Rights Offering to the extent doing so would cause the Investor to own more than 94.9% of the Common Shares outstanding immediately after giving affect to the transactions contemplated by the Transaction Documents (including the acquisition of Common Shares by Legacy Shareholders in the Rights Offering); and (D) No provision of any Law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit the Second Closing or shall prohibit or restrict the Investor from owning or voting any Common Shares to be purchased pursuant to the Transaction Documents. (ii) The obligation of the Investor to purchase the Common Shares to be purchased by it at the Second Closing is also subject to the satisfaction or written waiver by the Investor of the following conditions prior to the Second Closing: (A) The representations and warranties of the Company and the Bank set forth in this Agreement shall be true and correct in all respects on and as of the date of this Agreement and on and as of the Second Closing Date as though made on and as of the Second Closing Date, except where the failure to be true and correct (without regard to any materiality or Material Adverse Effect qualifications contained therein), individually or in the aggregate, would not be reasonably likely to have a Material Adverse Effect with respect to the Company (and except that (1) representations and warranties made as of a specified date shall be true and correct as of such date and (2) the Company Specified Representations shall be true and correct in all respects); (B) The Company and the Bank shall have performed and complied with in all material respects all agreements, covenants and conditions required by the Transaction Documents to be performed by such party on or prior to the Second Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Company and the Bank shall have performed and complied with such agreements, covenants and conditions, as so qualified, in all respects); (C) The Investor shall have received from the Company a certificate evidencing the incorporation and good standing of the Company and each of the Company Subsidiaries as of a date within ten (10) Business Days before the Second Closing Date; (D) The Investor shall have received a certificate, dated as of the Second Closing Date, signed on behalf of the Company and the Bank by a senior executive officer certifying to the effect that the conditions set forth in Section 1.2(f)(ii)(A) and Section 1.2(f)(ii)(B) have been satisfied on and as of the Second Closing Date; (E) As measured as of the last day of the month immediately preceding the Second Closing Date, the Bank shall have at least $490,000,000 in Core Deposits; (F) As measured as of the last day of the month immediately preceding the Second Closing Date, the Bank’s general valuation allowance shall be at least $23,000,000; (G) As measured as of the last day of the month immediately preceding the Second Closing Date, Nonperforming Assets of the Bank shall not exceed $104,000,000; (H) As independently valued in a manner consistent with the Company’s past practices as of the last day of the month immediately preceding the Second Closing Date, the unrealized loss (net of unrealized gain) in the Company’s investment portfolio shall not exceed $3,000,000; (I) As measured as of the last day of the month immediately preceding the Second Closing Date, the Bank’s assets classified by the Company, any Company Subsidiary or any Governmental Entity as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans” or words of similar import, shall not exceed $203,000,000 in an aggregate amount; (J) As measured as of the last day of the month immediately preceding the Second Closing Date, Tangible Capital of the Bank shall not be less than $36,000,000; (K) As measured on a date that is within fourteen (14) days of the Second Closing Date, the funding shortfall in the Bank’s Pentegra Defined Benefit Plan for Financial Institutions shall not exceed $3,200,000, as determined by Pentegra based on the valuation methodology utilized in Pentegra’s July 1, 2010 Actuarial Valuation and Report; (L) Since the date of this Agreement, a Material Adverse Effect shall not have occurred and no change or other event shall have occurred that, either individually or in the aggregate, would reasonably be likely to have a Material Adverse Effect; and (M) The Investor shall have received a certificate signed on behalf of the Company by its chief executive officer, chief operating officer and chief financial officer, dated as of the Second Closing Date, certifying that the conditions set forth in Sections 1.2(f)(ii)(F), (G), (H), (I), (J), (K), and (L) have been satisfied. (iii) The obligations of the Company hereunder in connection with to issue and sell the Common Shares to the Investor at the Second Closing are is subject to the satisfaction or written waiver by the Company of the following conditions being metprior to the Second Closing: (iA) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) on the Second Closing Date of the The representations and warranties of the Purchasers contained herein (unless Investor set forth in this Agreement shall be true and correct in all respects on and as of a specific the date therein in which case they shall be accurate of this Agreement and on and as of such datethe Second Closing Date as though made on and as of the Second Closing Date except where the failure to be true and correct (without regard to any materiality qualifications contained therein), individually or in the aggregate, would not materially adversely affect the ability of the Investor to perform its obligations hereunder; (iiB) The Investor shall have performed and complied with in all obligationsmaterial respects all agreements, covenants and agreements of each Purchaser conditions required by the Transaction Documents to be performed at by it on or prior to the Second Closing Date (except that with respect to agreements, covenants and conditions that are qualified by materiality, the Investor shall have been performed; andperformed and complied with such agreements, covenants and conditions, as so qualified, in all respects). (iiiC) the delivery by each Purchaser The Company shall have received a certificate, dated as of the items Second Closing Date, from the Investor signed on behalf of the Investor by an authorized agent of the Investor certifying to the effect that the conditions set forth in Section 2.4(b1.2(f)(iii)(A) of this Agreement. (band Section 1.2(f)(iii)(B) The respective obligations of the Purchasers hereunder in connection with the Closing are subject to the following conditions being met: (i) the accuracy in all material respects (or, to the extent representations or warranties are qualified by materiality or Material Adverse Effect, in all respects) when made and on the Second Closing Date of the representations and warranties of the Company contained herein (unless as of a specific date therein in which case they shall be accurate as of such date) except as disclosed in Disclosure Schedule as updated by the Company to reflect changes since the Closing Date through the Second Closing Date; (ii) the Company shall have obtained audits of the Company’s financial statements for the years ending December 31, 2019 and 2020 by a PCAOB-audited firm, and the Company, and, if there is a counterparty necessary to the Going Public Transaction, such counterparty, shall each have delivered an officer’s certificate to the Purchasers attesting to such party’s readiness to close the Going Public Transaction; (iii) all obligations, covenants and agreements of the Company required to be performed at or prior to the Closing Date shall have been performed; and (iv) the delivery by the Company of the items set forth in Section 2.4(a) of this Agreementsatisfied.