Common use of Additional Conditions Precedent to Closing Clause in Contracts

Additional Conditions Precedent to Closing. In addition to the conditions precedent to Section 3.1 above, the Closing is solely subject to satisfaction of the following conditions precedent on the Closing Date: (a) Note Documents (other than this Agreement), each duly executed by Issuer and each Guarantor, as applicable; (b) a completed Perfection Certificate for Issuer and each Guarantor; (c) the Operating Documents and good standing certificates of Issuer and each Guarantor certified by the Secretary of State (or equivalent agency) of Issuer’s and such Guarantor’s jurisdiction of organization or formation and each jurisdiction in which Issuer and each Guarantor is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Closing Date; (d) a certificate of Issuer executed by the Secretary of Issuer and each Guarantor executed by a director of the relevant Guarantor with appropriate insertions and attachments, including with respect to (i) the Operating Documents of Issuer or such Guarantor (which Certificate of Incorporation of Issuer shall be certified by the Secretary of State of the State of Delaware); (ii) the resolutions adopted by the Board of Directors or the board of directors (or the functional equivalent thereof) of such Guarantor for the purpose of approving the transactions contemplated by the Note Documents; (iii) (in the case of each Guarantor) the up-to-date share register of such Guarantor; and (iv) (in the case of each Guarantor) the identification by name and title, and the specimen signatures of, the officers of such Guarantor authorized to sign the Note Documents to which such Guarantor is party; (e) Issuer shall have provided the applicable listing of additional shares notification to The NASDAQ Global Select Market and The NASDAQ Global Select Market shall not have made any objection (not subsequently withdrawn) that the consummation of the transactions contemplated by this Agreement would violate NASDAQ listing rules applicable to the Issuer and that if not withdrawn would result in the delisting of the Common Stock; (f) a duly executed legal opinion of counsel to Issuer dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (g) a duly executed legal opinion of Australian counsel to Issuer and Guarantors dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (h) the representations and warranties in Section 5 hereof shall be true, accurate and complete in all material respects on the Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the purchase of Notes; (i) no Event of Default or an event that with the passage of time could result in an Event of Default, shall exist; (j) to the extent requested by Collateral Agent, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from each Purchaser and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (k) payment of the fees, Purchasers’ Expenses, Collateral Agent Expenses and Collateral Agent Fees then due as specified in Section 2.4 hereof (and Collateral Agent shall have received a fully executed copy of the Fee Letter); and (l) cause the Purchasers and Collateral Agent to receive (i) evidence that all financing statements in the jurisdiction of organization of each of Issuer and each Guarantor that the Purchasers or Collateral Agent may deem reasonably necessary (including, without limitation, registration of the Australian Security Documents on the “Personal Property Securities Register” established in connection with the PPSA) and (ii) each other document required by any Note Document or under any applicable Requirement of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Note Document, in proper form for filing, registration or recordation.

Additional Conditions Precedent to Closing. In addition to the conditions precedent to Section 3.1 above, the Closing is solely also subject to satisfaction of the following conditions precedent on the Closing Date: (a) original Note Documents (other than this Agreement, the Registration Rights Agreement and the Shares), each duly executed by Issuer and each Guarantor, as applicable; (b) a completed Perfection Certificate for Issuer and each Guarantor; (c) the Operating Documents and good standing certificates of Issuer and each Guarantor certified by the Secretary of State (or equivalent agency) of Issuer’s and such Guarantor’s jurisdiction of organization or formation and each jurisdiction in which Issuer and each Guarantor is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Closing Effective Date; (d) a certificate of Issuer executed by the Secretary of Issuer and each Guarantor executed by a director of the relevant Guarantor with appropriate insertions and attachments, including with respect to (i) the Operating Documents of Issuer or such Guarantor (which Certificate of Incorporation of Issuer shall be certified by the Secretary of State of the State of Delaware); ) and (ii) the resolutions adopted by the Board of Directors or the board of directors (or the functional equivalent thereof) of such Guarantor for the purpose of approving the transactions contemplated by the Note Documents; (iii) (in the case of each Guarantor) the up-to-date share register of such Guarantor; and (iv) (in the case of each Guarantor) the identification by name and title, and the specimen signatures of, the officers of such Guarantor authorized to sign the Note Documents to which such Guarantor is party; (e) Issuer certified copies, dated as of a date no earlier than the later of (x) thirty (30) days prior to the Effective Date and (y) the day after the filing of termination statements evidencing the repayment in full and release of liens with respect to Issuer’s existing Indebtedness described under Section 3.1(j) below, of financing statement searches, as the Purchasers shall have provided the applicable listing of additional shares notification to The NASDAQ Global Select Market and The NASDAQ Global Select Market shall not have made request, accompanied by written evidence (including any objection (not subsequently withdrawnUCC termination statements) that the consummation of Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the transactions contemplated by this Agreement would violate NASDAQ listing rules applicable to the Issuer and that if not withdrawn would result in the delisting of the Common StockNote Documents, will be terminated or released; (f) Issuer’s transfer agent shall have credited the Shares to the Purchasers’ or their respective designees’ balance accounts with the DTC through its Deposit/Withdrawal at Custodian system; (g) a duly executed legal opinion of counsel to Issuer dated as of the Closing Date; (h) an Approved Budget; (i) a duly executed cross receipt signed by the Issuer and the Purchasers, acknowledging that it has received the cash and/or securities it is to receive on the Closing Date pursuant to Section 2.2; (j) a payoff letter in form and substance satisfactory to the PurchasersPurchasers evidencing the repayment in full and release of liens with respect to Issuer’s existing secured Indebtedness (other than Permitted Debt); (g) a duly executed legal opinion of Australian counsel to Issuer and Guarantors dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (hk) the representations and warranties in Section 5 hereof shall be true, accurate and complete in all material respects on the Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the purchase of Notes; (il) no Event of Default or an event that with the passage of time could result in an Event of Default, shall exist; (j) to the extent requested by Collateral Agent, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from each Purchaser and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (km) payment of the fees, Purchasers’ Expenses, Collateral Agent Expenses and Collateral Agent Fees then due as specified in Section 2.4 hereof (and Collateral Agent shall have received a fully executed copy of the Fee Letter); and; (ln) cause the Purchasers and Collateral Agent to receive (i) evidence that all financing statements in the jurisdiction of organization of each of Issuer and each Guarantor that the Purchasers or Collateral Agent may deem reasonably necessary (including, without limitation, registration of the Australian Security Documents on the “Personal Property Securities Register” established in connection with the PPSA) and (ii) each other document required by any Note Document or under any applicable Requirement of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Note Document, in proper form for filing, registration or recordation; and (o) Substantially simultaneously with the effectiveness of this Agreement, the Issuer shall have executed an amendment to the Second Lien Note Purchase and Exchange Agreement to (i) provide that no mandatory prepayment with respect to the Second Lien Notes shall be required until all mandatory prepayment obligations with respect to the First Lien Notes (and any refinancing thereof) have been satisfied or waived and the First Lien Notes have been redeemed in full or otherwise terminated, (ii) extend the Maturity Date (as defined in the Second Lien Note Purchase and Exchange Agreement) under the Second Lien Notes to the date that is 36 months after the Closing Date, and (iii) modify clause (1) in the Permitted Debt definition in the Second Lien Note Purchase and Exchange Agreement to increase the permitted amount Indebtedness that may be incurred under the Second Lien Facilities (as defined in the Second Lien Note Purchase and Exchange Agreement) basket to $65 million, shall have become effective and shall be in full force and effect and shall be in form and substance reasonably satisfactory to the Purchasers.

Additional Conditions Precedent to Closing. In addition to the conditions precedent to Section 3.1 above, the Closing is solely subject to satisfaction of the The following conditions precedent on the Closing Dateshall have been satisfied: (ai) Note Documents (other than this Agreement)Borrower shall have established the Lockbox Account and the Cash Collateral Account and its primary disbursement and operating account(s) with Collection Bank, each duly and Borrower shall have delivered a Blocked Account Agreement executed by Issuer Borrower and the respective third-party financial institution with respect to each Guarantor, as applicableBlocked Account; (bii) a completed Perfection Certificate for Issuer and each Guarantor; (c) the Operating Documents and good standing certificates of Issuer and each Guarantor certified by the Secretary of State (or equivalent agency) of Issuer’s and such Guarantor’s jurisdiction of organization or formation and each jurisdiction in which Issuer and each Guarantor is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Closing Date; (d) a certificate of Issuer executed by the Secretary of Issuer and each Guarantor executed by a director Each of the relevant Guarantor with appropriate insertions warranties and attachments, including with respect to (i) the Operating Documents of Issuer or such Guarantor (which Certificate of Incorporation of Issuer shall be certified by the Secretary of State of the State of Delaware); (ii) the resolutions adopted by the Board of Directors or the board of directors (or the functional equivalent thereof) of such Guarantor for the purpose of approving the transactions contemplated by the Note Documents; (iii) (in the case of each Guarantor) the up-to-date share register of such Guarantor; and (iv) (in the case of each Guarantor) the identification by name and title, and the specimen signatures of, the officers of such Guarantor authorized to sign the Note Documents to which such Guarantor is party; (e) Issuer shall have provided the applicable listing of additional shares notification to The NASDAQ Global Select Market and The NASDAQ Global Select Market shall not have made any objection (not subsequently withdrawn) that the consummation of the transactions contemplated by this Agreement would violate NASDAQ listing rules applicable to the Issuer and that if not withdrawn would result in the delisting of the Common Stock; (f) a duly executed legal opinion of counsel to Issuer dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (g) a duly executed legal opinion of Australian counsel to Issuer and Guarantors dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (h) the representations and warranties contained in Section 5 hereof as well as any other section of this Agreement shall be true, accurate true and complete correct in all material respects on the Closing Date; provided; (iii) Neither Borrower nor Quality King or any of its Affiliates (including Pro's Choice) is in violation of, howeveror has received written notice that it is in violation of, that such materiality qualifier or has knowingly caused any Person to violate, any applicable statute, regulation or ordinance of the United States of America, or any state, city, town, municipality, county or of any other jurisdiction, or of any agency or department thereof (including without limitation, 35 41 environmental laws and regulations), which has caused or is reasonably likely to have a Material Adverse Effect; (iv) Closing shall not be applicable to any representations have been consummated under a certain Loan and warranties that already are qualified or modified by materiality in Security Agreement among Pro's Choice, Mellon Bank, N.A., as administrative agent, Fleet Capital Corporation, as syndication agent and the text thereof; lending institutions named as lenders therein ("Pro's Choice Loan Agreement") and provideda certain Amended and Restated Loan and Security Agreement among Quality King, further that those representations certain of its subsidiaries as borrowers, certain of its Affiliates and warranties expressly referring to a specific date shall be truesubsidiaries as affiliate guarantors, accurate Mellon Bank, N.A., as administrative agent, Fleet Capital Corporation, as syndication agent and complete in all material respects the lending institutions named as of such datelenders therein ("Amended and Restated Quality King Loan Agreement"), and no the Pro's Choice Loan Agreement and the Amended and Restated Quality King Loan Agreement shall each have become effective and binding on the parties; (v) Administrative Agent shall have approved the terms and conditions of the QKH Reorganization Documents, the Pro's Choice Reorganization Documents and the asset transfers as part of the QKH Reorganization and the Pro's Choice Reorganization shall each have been consummated; (vi) Lenders with the aggregate Pro Rata Shares equal to the Maximum Revolving Credit Limit have executed this Agreement; (vii) No event has occurred or condition exists which would constitute an Event of Default and Borrower shall not have occurred and be continuing taken any action or result from the purchase of Notespermitted any condition to exist which is or would have been prohibited by any section hereof; (iviii) no Event Administrative Agent shall have completed an inspection and audit of Default or an event that the books and records and Property of Borrower, with the passage of time could result results thereof being satisfactory in an Event of Default, shall existall respects to Administrative Agent in its sole discretion; (jix) Borrower shall have delivered an initial pro forma Borrowing Base Certificate dated as of the Closing Date, which shall be prepared assuming that all the conditions to the extent requested by Collateral Agent, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from each Purchaser effectiveness listed in this section 4.1 and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (k) payment of the fees, Purchasers’ Expenses, Collateral Agent Expenses and Collateral Agent Fees then due as specified conditions to Funding listed in Section 2.4 4.2 hereof have occurred, including the closing and consummation of a Qualified IPO with Net Proceeds of $125,000,000 (prior to any distributions to shareholders), evidencing that after consideration (without deferral) of and Collateral Agent shall have received a fully executed copy of the Fee Letter); and (l) cause the Purchasers giving effect to all closing disbursements, costs and Collateral Agent to receive (i) evidence that all financing statements in the jurisdiction of organization of each of Issuer and each Guarantor that the Purchasers or Collateral Agent may deem reasonably necessary fees (including, without limitation, registration of the Australian Security Documents on the “Personal Property Securities Register” established in connection limitation those associated with the PPSA) Qualified IPO, regardless of whether completed, billed, due or paid), Expenses and (ii) each all other document required by any Note Document or then current obligations and taxes and all planned initial Advances under any applicable Requirement the Revolving Credit, Borrower has a Borrowing Availability of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Note Document, in proper form for filing, registration or recordationat least $60,000,000.

Additional Conditions Precedent to Closing. In addition to the conditions precedent to Section 3.1 above, the Closing is solely subject to satisfaction of the following conditions precedent on the Closing Date: (a) Note Documents (other than this Agreement), each duly executed by Issuer and each Guarantor, as applicable; (b) a completed Perfection Certificate for Issuer and each Guarantor; (c) the Operating Documents and good standing certificates of Issuer and each Guarantor certified by the Secretary of State (or equivalent agency) of Issuer’s and such Guarantor’s jurisdiction of organization or formation and each jurisdiction in which Issuer and each Guarantor is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Closing Date; (d) a certificate of Issuer executed by the Secretary of Issuer and each Guarantor executed by a director of the relevant Guarantor with appropriate insertions and attachments, including with respect to (i) the Operating Documents of Issuer or such Guarantor (which Certificate of Incorporation of Issuer shall be certified by the Secretary of State of the State of Delaware); (ii) the resolutions adopted by the Board of Directors or the board of directors (or the functional equivalent thereof) of such Guarantor for the purpose of approving the transactions contemplated by the Note Documents; (iii) (in the case of each Guarantor) the up-to-date share register of such Guarantor; and (iv) (in the case of each Guarantor) the identification by name and title, and the specimen signatures of, the officers of such Guarantor authorized to sign the Note Documents to which such Guarantor is party; (e) Issuer shall have provided the applicable listing of additional shares notification to The NASDAQ Global Select Market, and received notification from The NASDAQ Global Select Market that the listing of additional shares review process has been completed, and The NASDAQ Global Select Market shall not have made any objection (not subsequently withdrawn) that the consummation of the transactions contemplated by this Agreement would violate NASDAQ listing rules applicable to the Issuer and that if not withdrawn would result in the delisting of the Common Stock; (f) a duly executed legal opinion of counsel to Issuer dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (g) a duly executed legal opinion of Australian counsel to Issuer and Guarantors dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (h) the representations and warranties in Section 5 hereof shall be true, accurate and complete in all material respects on the Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the purchase of Notes; (i) no Event of Default or an event that with the passage of time could result in an Event of Default, shall exist; (j) to the extent requested by Collateral Agent, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from each Purchaser and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (k) payment of the fees, Purchasers’ Expenses, Collateral Agent Expenses and Collateral Agent Fees then due as specified in Section 2.4 hereof (and Collateral Agent shall have received a fully executed copy of the Fee Letter); and (l) cause the Purchasers and Collateral Agent to receive (i) evidence that all financing statements in the jurisdiction of organization of each of Issuer and each Guarantor that the Purchasers or Collateral Agent may deem reasonably necessary (including, without limitation, registration of the Australian Security Documents on the “Personal Property Securities Register” established in connection with the PPSA) and (ii) each other document required by any Note Document or under any applicable Requirement of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Note Document, in proper form for filing, registration or recordation.

Additional Conditions Precedent to Closing. In addition to the conditions precedent to Section 3.1 above, the Closing is solely also subject to satisfaction of the following conditions precedent on the Closing Date: (a) original Note Documents (other than this Agreement, the Registration Rights Agreement and the Shares), each duly executed by Issuer and each Guarantor, as applicable; (b) a completed Perfection Certificate for Issuer and each Guarantor; (c) the Operating Documents and good standing certificates of Issuer and each Guarantor certified by the Secretary of State (or equivalent agency) of Issuer’s and such Guarantor’s jurisdiction of organization or formation and each jurisdiction in which Issuer and each Guarantor is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Closing Effective Date; (d) a certificate of Issuer executed by the Secretary of Issuer and each Guarantor executed by a director of the relevant Guarantor with appropriate insertions and attachments, including with respect to (i) the Operating Documents of Issuer or such Guarantor (which Certificate of Incorporation of Issuer shall be certified by the Secretary of State of the State of Delaware); ) and (ii) the resolutions adopted by the Board of Directors or the board of directors (or the functional equivalent thereof) of such Guarantor for the purpose of approving the transactions contemplated by the Note Documents; (iii) (in the case of each Guarantor) the up-to-date share register of such Guarantor; and (iv) (in the case of each Guarantor) the identification by name and title, and the specimen signatures of, the officers of such Guarantor authorized to sign the Note Documents to which such Guarantor is party; (e) Issuer certified copies, dated as of a date no earlier than the later of (x) thirty (30) days prior to the Effective Date and (y) the day after the filing of termination statements evidencing the repayment in full and release of liens with respect to Issuer’s existing Indebtedness described under Section 3.1(j) below, of financing statement searches, as the Purchasers shall have provided the applicable listing of additional shares notification to The NASDAQ Global Select Market and The NASDAQ Global Select Market shall not have made request, accompanied by written evidence (including any objection (not subsequently withdrawnUCC termination statements) that the consummation of Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the transactions contemplated by this Agreement would violate NASDAQ listing rules applicable to the Issuer and that if not withdrawn would result in the delisting of the Common StockNote Documents, will be terminated or released; (f) Issuer’s transfer agent shall have credited the Shares to the Purchasers’ or their respective designees’ balance accounts with the DTC through its Deposit/Withdrawal at Custodian system; (g) a duly executed legal opinion of counsel to Issuer dated as of the Closing Date; (h) [Reserved]; (i) a duly executed cross receipt signed by the Issuer and the Purchasers, acknowledging that it has received the cash and/or securities it is to receive on the Closing Date pursuant to Section 2.2; (j) a payoff letter in form and substance satisfactory to the PurchasersPurchasers evidencing the repayment in full and release of liens with respect to Issuer’s existing Indebtedness; (g) a duly executed legal opinion of Australian counsel to Issuer and Guarantors dated as of the Closing Date, in form and substance satisfactory to the Purchasers; (hk) the representations and warranties in Section 5 hereof shall be true, accurate and complete in all material respects on the Closing Date; provided, however, that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof; and provided, further that those representations and warranties expressly referring to a specific date shall be true, accurate and complete in all material respects as of such date, and no Event of Default shall have occurred and be continuing or result from the purchase of Notes; (il) no Event of Default or an event that with the passage of time could result in an Event of Default, shall exist; (j) to the extent requested by Collateral Agent, a properly completed and duly executed IRS Form W-9 (or other applicable tax form) from each Purchaser and all other documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (km) payment of the fees, Purchasers’ Expenses, Collateral Agent Expenses and Collateral Agent Fees then due as specified in Section 2.4 hereof (and Collateral Agent shall have received a fully executed copy of the Fee Letter); and; (ln) cause the Purchasers and Collateral Agent to receive (i) evidence that all financing statements in the jurisdiction of organization of each of Issuer and each Guarantor that the Purchasers or Collateral Agent may deem reasonably necessary (including, without limitation, registration of the Australian Security Documents on the “Personal Property Securities Register” established in connection with the PPSA) and (ii) each other document required by any Note Document or under any applicable Requirement of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Note Document, in proper form for filing, registration or recordation; and (o) duly executed Warrants with each Purchaser in accordance with Schedule 2.2.