Common use of Additional Closing Clause in Contracts

Additional Closing. Whether or not a Seller has then begun to, or ever begins to cure one or more Asserted Defects (and whether or not a Seller has elected to proceed under Section 7.5 or Section 7.6 below with respect to all Properties, or one or more Asserted Defects) any Seller may postpone the Closing, with respect to any of the Properties in which such Seller owns an interest as to which Buyer has raised an Asserted Defect, by designating an additional Closing Date or Closing Dates, which shall not be later than six (6) months after the initial Closing Date designated in Section 9.1, for the Closing as to such Properties, provided, however, if such Seller is seeking to cure the Asserted Defect through any legal action against the party claiming or clouding the title to any interest, the period for such Seller to cure said interest and the resulting additional Closing Date shall be extended for no more than 36 months so long as such Seller actively pursues any legal action. The additional Closing Date for a Property that was the subject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into such Seller, other documentation acceptable to Buyer which vests title into such Seller, or any final non-appealable decision or settlement which vests title into such Seller. If such Seller elects to postpone the Closing with respect to such Properties, then the Purchase Price paid at the initial Closing for the remainder of the Properties shall be reduced by the Allocated Amount allocated to said Property and the amount of such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Notwithstanding any such election to postpone Closing with respect to the affected Properties, Sellers shall still have no obligation to commence to cure or cure any Asserted Defects.

Additional Closing. Whether or not a Seller has then begun to(a) At any time from the Closing Date until the one-year anniversary of the Closing Date, or ever begins the Purchaser shall have (in addition to cure the rights set forth in Section 4.14) the option, in its sole and absolute discretion, to purchase at up to (but no more than) three Additional Closings, Additional Debentures with an aggregate face value of $1,125,000. The amount the Purchaser shall pay for each Additional Debenture shall be equal to 88.889% of the face value of the Additional Debenture (the “Additional Subscription Amount”) and the Purchaser may purchase at each Additional Closing Additional Debentures with any face value that it shall determine (up to an aggregate face value of $1,125,000) that is in excess of $200,000. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR OF ANY OTHER TRANSACTION DOCUMENT, THE PURCHASER SHALL HAVE NO OBLIGATION TO PURCHASE ANY ADDITIONAL DEBENTURE, WHICH PURCHASE SHALL BE MADE IN THE SOLE AND ABSOLUTE DISCRETION OF THE PURCHASER. (b) The Purchaser shall exercise its option to purchase one or more Asserted Defects Additional Debentures by delivering a notice thereof (an “Additional Closing Notice”) to the Company not more than 15 Trading Days and whether not less than five Trading Days prior to the Additional Closing Date for such purchase. Each Additional Closing Notice shall specify (i) the Additional Closing Date and (ii) the face value and Additional Subscription Amount of the Additional Debenture to be purchased at such Additional Closing. (c) On each Additional Closing Date specified in an Additional Closing Notice, upon the terms and subject to the conditions set forth herein, the Company shall sell, and the Purchaser shall purchase, the Additional Debenture in the amount specified in such Additional Closing Notice and an Additional Warrant exercisable for the Additional Warrant Share Amount. The Purchaser shall deliver to the Company via wire transfer or not a Seller has elected certified check in immediately available funds equal to proceed under the Additional Subscription Amount for the Additional Debentures to be purchased at such Additional Closing Date and the Company shall deliver to the Purchaser such Additional Debenture and Additional Warrant and the other items set forth in Section 7.5 or Section 7.6 below with respect to all Properties4.15(d). Upon satisfaction of the conditions set forth in Sections 4.15(f) and 4.15(g), the Additional Closing shall occur at the offices of FW, or one such other location as the parties shall mutually agree. (d) On each Additional Closing Date, the Company shall deliver or more Asserted Defectscause to be delivered to the Purchaser (or as otherwise specified) any Seller may postpone the following: (i) a legal opinion of Company Counsel, in the form of Exhibit F attached hereto; (ii) the Additional Debenture to be purchased at such Additional Closing, with respect to any duly executed by the Company (in the event the Additional Debenture purchased at an Additional Closing has a face value of less than $1,125,000, the repayment terms of the Properties form of Additional Debenture attached hereto as Exhibit A shall be adjusted in which the Additional Debenture executed and delivered by the Company at such Seller owns Additional Closing to correspond to that portion of such maximum face value represented by the face value of such Additional Debenture); (iii) the Additional Warrant to be purchased at such Additional Closing registered in the name of the Purchaser to purchase up to the Additional Warrant Share Amount of such Additional Warrant; (iv) resolutions duly adopted by the respective Boards of Directors of the Company and the Subsidiaries authorizing the execution, delivery and performance of the documents delivered at such Additional Closing; (v) by wire transfer to the account as specified in writing by the Purchaser, an interest as amount equal to which Buyer has raised an Asserted Defect2.00% of the Additional Subscription Amount paid at such Additional Closing, representing payment of a collateral management fee; (vi) a certificate of the chief executive officer of the Company confirming the compliance by the Company with the conditions set forth in Section 4.15(g); (vii) payment of the fees and expenses of the Purchaser’s counsel in connection with such Additional Closing; and (viii) evidence that the Subsidiaries’ gaming licenses are in good standing with the Board. (e) On each Additional Closing Date, the Purchaser shall deliver or cause to be delivered to the Company, the Additional Subscription Amount of the Additional Debenture to be purchased at such Additional Closing, by designating an additional wire transfer to the account as specified in writing by the Company. (f) The obligations of the Company hereunder in connection with each Additional Closing are subject to the following conditions being met: (i) the accuracy in all material respects when made and on such Additional Closing Date of the representations and warranties of the Purchaser contained herein; (ii) all obligations, covenants and agreements of the Purchaser required to be performed at or Closing Dates, which shall not be later than six (6) months after the initial Closing Date designated in Section 9.1, for the Closing as prior to such Properties, provided, however, if such Seller is seeking to cure the Asserted Defect through any legal action against the party claiming or clouding the title to any interest, the period for such Seller to cure said interest and the resulting additional Additional Closing Date shall be extended for no more than 36 months so long as have been performed; and (iii) the delivery by the Purchaser of the item set forth in Section 4.15(e) of this Agreement. (g) The obligations of the Purchaser hereunder in connection with each Additional Closing are subject to the following conditions being met: (i) the accuracy in all material respects on such Seller actively pursues any legal action. The additional Additional Closing Date for a Property that was the subject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into representations and warranties of the Company contained herein; (ii) all obligations, covenants and agreements of the Company required to be performed at or prior to such SellerAdditional Closing Date shall have been performed; (iii) the delivery by the Company of the items set forth in Section 4.15(d) of this Agreement; (iv) there shall have been no Material Adverse Effect since the date hereof; and (v) if the Common Stock is traded on a Trading Market at the date hereof, from the date hereof to such Additional Closing Date, trading in the Common Stock shall not have been suspended, and, at any time prior to such Additional 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 documentation acceptable to Buyer which vests title into national or international calamity of such Sellermagnitude in its effect on, or any final non-appealable decision or settlement which vests title into such Seller. If such Seller elects to postpone material adverse change in, any financial market which, in the Closing with respect to such Propertiescase, then in the Purchase Price paid at the initial Closing for the remainder reasonable judgment of the Properties shall be reduced by Purchaser, makes it impracticable or inadvisable to purchase the Allocated Amount allocated to said Property Additional Debenture and the amount of Additional Warrant to be purchased at such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Notwithstanding any such election to postpone Closing with respect to the affected Properties, Sellers shall still have no obligation to commence to cure or cure any Asserted DefectsAdditional Closing.

Additional Closing. Whether The obligation of each Buyer hereunder to purchase its Preferred Shares at each Additional Closing is subject to the satisfaction, at or before each Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer’s sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof; and provided further that, in the event any such conditions are not met in respect of any Additional Closing and any Buyer other than Yorkville does not agree to waive such conditions in respect of such Additional Closing, Yorkville may elect in its sole discretion to purchase such Buyer’s pro rata share of the Preferred Shares to be issued and sold at such Additional Closing: (i) The Company shall have delivered to each a Seller has Buyer a written notice indicating the aggregate number of Additional Preferred Shares to be issued and sold by the Company at the applicable Additional Closing (the “Additional Closing Tranche”) at least five (5), but no more than seven (7) Trading Days, prior to the desired Additional Closing Date, provided that the Additional Closing Tranche at such Additional Closing shall be no more than 35,000 Additional Preferred Shares. (ii) The Additional Closing Date may be no less than 60 calendar days after the immediately preceding Closing Date; provided that (A) if the number of Preferred Shares issued and sold at the immediately preceding Closing was greater than 25,000 Preferred Shares, then begun tothe succeeding Additional Closing Date may be no less than the earlier of (x) 90 calendar days after the immediately preceding Closing Date, or ever begins to cure one or more Asserted Defects and (y) such date after the immediately preceding Closing Date, and whether or not a Seller has elected to proceed under Section 7.5 or Section 7.6 below less than 60 calendar days thereafter, as of which the Buyers no longer hold any Preferred Shares issued in the immediately preceding Closing Date and (B) with respect to all Properties, or one or more Asserted Defects) any Seller may postpone the first Additional Closing Date following the First Closing, with respect to if any Preferred Shares are outstanding as of the Properties in which Stockholder Approval Date, such Seller owns an interest as to which Buyer has raised an Asserted Defect, by designating an additional first Additional Closing Date or Closing Dates, which shall not may be later no less than six the earlier of (6x) months 45 days after the initial Stockholder Approval Date and (y) such date after the Stockholder Approval Date as of which the Buyers no longer hold any Preferred Shares issued in the First Closing. (iii) The average daily dollar trading volume (as reported on Bloomberg) of the Common Stock on the Principal Market during the ten (10) consecutive Trading Day period ending on the Trading Day immediately preceding the Additional Closing Date designated in Section 9.1Date, for the Closing as to such Properties, provided, howeveris no less than: (A) $5,000,000 per Trading Day, if such Seller the applicable Additional Closing Tranche is seeking greater than 22,500 Additional Preferred Shares; (B) $4,500,000 per Trading Day, if the applicable Additional Closing Tranche is greater than 20,000 Additional Preferred Shares and less than or equal to cure 22,500 Additional Preferred Shares; (C) $4,000,000 per Trading Day, if the Asserted Defect through any legal action against applicable Additional Closing Tranche is greater than 17,500 Additional Preferred Shares and less than or equal to 20,000 Additional Preferred Shares; (D) $3,500,000 per Trading Day, if the party claiming applicable Additional Closing Tranche is greater than 15,000 Additional Preferred Shares and less than or clouding equal to 17,500 Additional Preferred Shares; (E) $3,000,000 per Trading Day, if the title applicable Additional Closing Tranche is greater than 12,500 Additional Preferred Shares and less than or equal to any interest15,000 Additional Preferred Shares; (F) $2,500,000 per Trading Day, if the period for such Seller applicable Additional Closing Tranche is greater than 10,000 Additional Preferred Shares and less than or equal to cure said interest and 12,500 Additional Preferred Shares; or (G) $2,000,000 per Trading Day, if the resulting additional applicable Additional Closing Tranche is less than or equal to 10,000 Additional Preferred Shares. (iv) The Closing Sale Price (as defined in the Certificate of Designations) of the Common Stock on each of the ten (10) consecutive Trading Days immediately preceding the Additional Closing Date shall be extended no less than the greater of (i) $1.00 per share of Common Stock and (ii) 150% of the Floor Price (as defined in the Certificate of Designations). (v) (A) No Triggering Event as defined in Sections (i), (vii), (viii), (ix) or (x) of the Certificate of Designations has occurred since the date of the immediately preceding Closing Date or is continuing and (B) no other Triggering Event as defined in the Certificate of Designations has occurred and is continuing or that, in respect of any Triggering Event, with notice, the passage of time or both, would occur, including, but not limited to, under Section 5(a)(vii) of the Certificate of Designations. (vi) Such Buyer shall have received the opinion of Orrick, Herrington & Sutcliffe LLP, the Company’s counsel, dated as of the Additional Closing Date, addressed to each Buyer, in form and substance reasonably acceptable to such Buyer. (vii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Transfer Agent. (viii) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company in its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Additional Closing Date. (ix) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or material adverse effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date), and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, duly executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Closing Date, to the foregoing effect. (x) The Company shall have delivered to such Buyer a letter from the Transfer Agent certifying the number of shares of Common Stock outstanding on the Trading Day immediately prior to the Closing Date. (xi) The Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and (B) shall not have been suspended, as of the Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling below the minimum maintenance requirements of the Principal Market. (xii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market, if any. (xiii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents. (xiv) Since the date of the immediately preceding Closing Date, no more condition, event or series of events shall exist or have occurred that has had or would reasonably be expected to have or result in a Material Adverse Effect. (xv) The Company has duly and timely delivered all Conversion Shares required to be delivered upon the conversion of any of the outstanding Preferred Shares in accordance with the terms of the Certificate of Designation. (xvi) The Company has an unrestricted cash and cash equivalents balance, inclusive of any unused commitments then available to be drawn under a Permitted ABL Facility, of at least $31,500,000 as of the Additional Closing Date. (xvii) A Registration Statement shall be effective and available for the issuance and sale of (x) the Additional Preferred Shares to be issued in the Additional Closing, (y) Preferred Shares in an amount equal to not less than 36 twelve (12) months so long of Dividends on such Additional Preferred Shares and (z) the Conversion Shares issuable upon conversion thereof, and the Company shall have delivered (or made publicly available through EDGAR) to each Buyer the Prospectus and the Prospectus Supplement with respect thereto. (xviii) The Company shall have obtained the Stockholder Approval prior to the Additional Closing Date. (xix) No default or event of default shall have occurred and be continuing under the First Lien Notes or the Second Lien Notes since the date of the immediately preceding Closing Date. (xx) The Company shall have delivered to such Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement as such Seller actively pursues any legal action. The additional Closing Date for a Property that was the subject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into such Seller, other documentation acceptable to Buyer which vests title into such Seller, or any final non-appealable decision or settlement which vests title into such Seller. If such Seller elects to postpone the Closing with respect to such Properties, then the Purchase Price paid at the initial Closing for the remainder of the Properties shall be reduced by the Allocated Amount allocated to said Property and the amount of such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Notwithstanding any such election to postpone Closing with respect to the affected Properties, Sellers shall still have no obligation to commence to cure or cure any Asserted Defectsits counsel may reasonably request.

Additional Closing. Whether or not a Seller has then begun to, or ever begins to cure one or more Asserted Defects (and whether or not a Seller has elected to proceed under Section 7.5 or Section 7.6 below with respect to all Properties, or one or more Asserted Defects) any Seller may postpone the Closing, with respect to any of the Properties in which such Seller owns an interest as to which Buyer has raised an Asserted Defect, by designating an additional Closing Date or Closing Dates, which shall not be later than six (6) months after the initial Closing Date designated in Section 9.1, for the Closing as to such Properties, provided, however, if such Seller is seeking to cure the Asserted Defect through any legal action against the party claiming or clouding the title to any interest, the period for such Seller to cure said interest and the resulting additional Closing Date shall be extended for no more than 36 months so long as such Seller actively pursues any legal action, but not longer than nine (9) months after the Closing Date, unless ▇▇▇▇▇ agrees in writing to extend the deadline for any resulting additional Closing Date. The Subject to the foregoing sentence, the additional Closing Date for a Property that was the subject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into such Seller, other documentation reasonably acceptable to Buyer which vests title into such Seller, or any final non-appealable decision or settlement which vests title into such Seller. If such Seller elects to postpone the Closing with respect to such Properties, then the Purchase Price paid at the initial Closing for the remainder of the Properties shall be reduced by the Allocated Amount allocated to said Property and the amount of such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Only a portion of the Deposit shall be applied as provided in Section 9.3 to the portion of the Purchase Price paid at the initial Closing if it occurs, such portion being the percentage equal to the unadjusted Purchase Price paid at the initial Closing divided by the unadjusted Purchase Price set forth in Section 3.1. Notwithstanding any such election to postpone Closing with respect to the affected Properties, Sellers Seller shall still have no obligation to commence to cure or cure any Asserted Defects.

Additional Closing. Whether or not a Seller has then begun to, or ever begins to cure one or more Asserted Defects (and whether or not a Seller has elected to proceed under Section 7.5 or Section 7.6 below with respect to all Properties, or one or more Asserted Defects) any Seller may postpone the Closing, with respect to any of the Properties in which such Seller owns an interest as to which Buyer has raised an Asserted Defect, by designating an additional Closing Date or Closing Dates, which shall not be later than six (6) months after the initial Closing Date designated in Section 9.1, for the Closing as to such Properties, provided, however, if such Seller is seeking to cure the Asserted Defect through any legal action against the party claiming or clouding the title to any interest, the period for such Seller to cure said interest and the resulting additional Closing Date shall be extended for no more than 36 months so long as such Seller actively pursues any legal action, but not longer than nine (9) months after the Closing Date, unless Buyer agrees in writing to extend the deadline for any resulting additional Closing Date. The Subject to the foregoing sentence, the additional Closing Date for a Property that was the subject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into such Seller, other documentation reasonably acceptable to Buyer which vests title into such Seller, or any final non-appealable decision or settlement which vests title into such Seller. If such Seller elects to postpone the Closing with respect to such Properties, then the Purchase Price paid at the initial Closing for the remainder of the Properties shall be reduced by the Allocated Amount allocated to said Property and the amount of such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Only a portion of the Deposit shall be applied as provided in Section 9.3 to the portion of the Purchase Price paid at the initial Closing if it occurs, such portion being the percentage equal to the unadjusted Purchase Price paid at the initial Closing divided by the unadjusted Purchase Price set forth in Section 3.1. Notwithstanding any such election to postpone Closing with respect to the affected Properties, Sellers Seller shall still have no obligation to commence to cure or cure any Asserted Defects.