Conditions for Closing. 5.1. Conditions for the Company to Satisfy. The several obligations of each Purchaser to purchase its respective Note and Warrant as contemplated by this Agreement is subject to satisfaction of the following contingencies at or prior to Closing: (a) The Company shall have obtained all third party consents required in connection herewith, including consents to pledge the Collateral to the Purchasers as security for the Notes. (b) The Company shall have executed and delivered to the Purchasers at Closing the Transaction Documents. (c) The Company shall have satisfied all judgment liens against it filed of record with the U.S. Patent and Trademark Office or otherwise. (d) The Company shall have obtained the written consent of Fusion Capital Fund II, LLC, an Illinois limited liability company and prospective funding source for Millenium upon consummation of the Merger, to the transactions contemplated hereby in such form as the Purchasers shall require. (e) The Company shall have paid Whitebox Advisors a $180,000 cash origination fee related to the transactions contemplated hereby. (f) Sheppard, Mullin, Rxxxxxx & Hampton LLP, legal counsel to the Company (“SMRH”), shall have delivered an opinion to the Purchasers with respect to the following matters (which opinion may contain customary exclusions and limitations that are reasonably acceptable to counsel for the Purchasers): (i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all corporate power and authority necessary to own its properties and to conduct its business as, to SMRH’s knowledge, it is presently conducted. The Company is qualified to do business and is in good standing in each state where it owns or leases any material property or conducts any material business, except where a failure to so qualify would not have a material adverse effect on the Company. (ii) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents. (iii) The Transaction Documents have been duly authorized by all necessary corporate action on the part of the Company. (iv) The authorized capital stock of the Company consists of 10,000,000 shares of Common Stock, par value $0.00025 per share, 6,874,429 shares of which to SMRH’s knowledge are issued and outstanding prior to the Closing, and 5,000,000 shares of Preferred Stock, par value $0.00025 per share, 352,160 shares of which to SMRH’s knowledge are issued and outstanding prior to the Closing. To SMRH’s knowledge, except as described in the Purchase Agreement (including the schedules and exhibits thereto), there are no other presently outstanding preemptive rights to purchase from the Company any of the authorized but unissued stock of the Company. (v) Each of the Transaction Documents, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms. (vi) When issued in compliance with the provisions of the Notes and Warrants (and upon payment as provided by the Warrants), the Shares will be validly issued, fully paid and nonassessable. (vii) The execution and delivery of the Transaction Documents by the Company will not result in (i) a violation of the Company’s Certificate of Incorporation or Bylaws, as amended or (ii) a violation of any judgment or order specifically identified on the Schedules to the Purchase Agreement, if any. (g) The Company shall have procured, at its expense, UCC-type insurance in form and amount satisfactory to the Purchasers as to the perfection and priority of the Purchasers’ security interest in the Collateral.
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Conditions for Closing. 5.1. Conditions for the Company to Satisfy. The several obligations of each Purchaser to purchase its respective Note and Warrant as contemplated by this Agreement is subject to satisfaction of the following contingencies at or prior to Closing:
(a) The Company shall have obtained all third party consents required in connection herewith, including consents to pledge the Collateral to the Purchasers Purchaser as security for the NotesNote (excluding acknowledgements from Tribes as contemplated by Section 3.16 above in connection with future sales, leases, participation rights, revenue-sharing or other similar arrangements between the Company and such Tribes relating to Gaming Machines placed in service on Tribal property).
(b) The Company shall have executed and delivered to the Purchasers Purchaser at Closing the Transaction Documents.
(c) The Company shall have satisfied all judgment liens against it filed of record with the U.S. Patent and Trademark Office or otherwise.
(d) The Company shall have obtained the written consent of Fusion Capital Fund II, LLC, an Illinois limited liability company and prospective funding source for Millenium upon consummation of the Merger, to the transactions contemplated hereby in such form as the Purchasers shall require.
(e) The Company shall have paid Whitebox Advisors Advisors, LLC a $180,000 45,000 cash origination fee related to the transactions contemplated hereby.
(fd) SheppardMxxxxx Xxxxxxx Xxxxxx & Brand, Mullin, Rxxxxxx & Hampton LLP, legal counsel to the Company (“SMRH”)Company, shall have delivered an opinion to the Purchasers with respect to the following matters (which opinion may contain customary exclusions and limitations that are reasonably acceptable to counsel for the Purchasers):matters:
(i) The Company is a corporation duly incorporatedorganized, validly existing and in good standing under the laws of the State of DelawareMinnesota. The Company has all requisite corporate power and authority necessary to own and operate its properties and assets, to conduct execute and deliver the Transaction Documents, to pledge the Collateral as security for the Notes, to issue and sell the Shares, to carry out the provisions of the Transaction Documents and to carry on its business as, as presently conducted and as presently proposed to SMRH’s knowledge, it is presently be conducted. The Company has no subsidiaries. The Company is duly qualified and is authorized to do business and is in good standing in each state where it owns or leases any material property or conducts any material businessjurisdiction in which the nature of its activities and of its properties (both owned and leased) makes such qualification necessary, except where a for those jurisdictions in which failure to be so qualify qualified would not have a material materially adverse effect on the CompanyCompany or its business, taken as a whole.
(ii) The Company has the requisite corporate power and authority is authorized to executeissue 100,000,000 shares of capital stock, deliver and perform its obligations under the Transaction Documents.
(iii) The Transaction Documents of which 233,333 shares have been duly authorized by all necessary corporate action on the part designated as Series A Convertible Preferred Stock, par value $0.01 per share, and of the Company.
(iv) The authorized capital stock of the Company consists of 10,000,000 which 206,667 shares are issued and outstanding, and 11,006,784 shares of Common Stock, par value $0.00025 0.01 per share, 6,874,429 shares of which to SMRHthe firm’s knowledge knowledge, are issued and outstanding. To the firm’s knowledge, the Company has no outstanding prior Convertible Securities or any agreement or commitment to the Closing, and 5,000,000 sell or issue any shares of Preferred Stock, par value $0.00025 per share, 352,160 shares of which to SMRH’s knowledge are issued and outstanding prior to the Closing. To SMRH’s knowledgecapital stock or Convertible Securities, except as described in herein. All issued and outstanding shares of the Purchase Agreement Company’s capital stock (including a) have been duly authorized and validly issued, (b) are fully paid and nonassessable, (c) are free from any preemptive and cumulative voting rights and (d) were issued pursuant to an effective registration statement filed with the schedules Commission and exhibits thereto)applicable state securities authorities or pursuant to valid exemptions under federal and state securities laws. To the firm’s knowledge, there are no other presently outstanding preemptive rights of first refusal or proxy or shareholder agreements of any kind relating to purchase from the Company any of the authorized but unissued stock of the Company.
(v) Each of the Transaction Documents, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against ’s securities to which the Company in accordance with their terms.
(vi) or any of its executive officers and directors is a party. When issued in compliance with the provisions of the Notes and Warrants (and upon payment as provided by the Warrants), the Shares will be validly issued, fully paid and nonassessable, and will be free of any liens or encumbrances; provided, however, that the Shares may be subject to restrictions on transfer under state and/or federal securities laws as set forth herein or as otherwise required by such laws at the time a transfer is proposed.
(viiiii) All corporate action on the part of the Company, its officers, directors and shareholders necessary for the authorization of the Transaction Documents, the performance of all obligations of the Company under the Transaction Documents at the Closing, including the pledge of the Collateral as security for the Notes, and the authorization, sale, issuance and delivery of the Shares upon exercise of the Warrants has been taken. The Transaction Documents, when executed and delivered, will be valid and binding obligations of the Company enforceable in accordance with their terms, except (a) as limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws of general application affecting enforcement of creditors’ rights, (b) according to general principles of equity that restrict the availability of equitable remedies; and (c) to the extent that the enforceability of the indemnification provisions of the Registration Rights Agreement may be limited by applicable laws. The sale of the Shares upon exercise of the Warrants is not and will not be subject to any preemptive rights or rights of first refusal.
(iv) The execution and delivery to the Purchasers of the Transaction Documents by does not violate or constitute a default under the Company will not result in (i) a violation of the Company’s Certificate Articles of Incorporation or Bylaws, as amended amended, of the Company, or (ii) under any agreement known to such firm to which the Company or the Subsidiaries is a violation party or by which any of any judgment their respective properties or order specifically identified on the Schedules to the Purchase Agreement, if anyassets are bound.
(gv) The To such firm’s knowledge, except as disclosed in the SEC Reports, there is no action, suit, proceeding or investigation pending or currently threatened against the Company, including any that questions the validity of the Agreement or the other agreements contemplated thereby or the right of the Company shall have procuredto enter into any of such agreements, at its expenseor to consummate the transactions contemplated thereby. To such firm’s knowledge, UCC-type insurance and except as disclosed in form and amount satisfactory the SEC Reports, the Company is not a party or subject to the provisions of any order, writ, injunction, judgment or decree of any court or government agency or instrumentality.
(vi) Upon tender of the funds by the Purchasers as to the perfection Company as contemplated by the Agreement and priority filing of a UCC Financing Statement covering the Purchasers’ Collateral, a security interest in the CollateralCollateral will attach in favor of the Purchasers.
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Conditions for Closing. 5.1. Conditions for the Company to SatisfySatisfy for the First Closing. The several obligations of each Purchaser to purchase its respective Note and Warrant pursuant to the First Closing as contemplated by this Agreement is subject to satisfaction of the following contingencies at or prior to the First Closing:
(a) The Company shall have obtained all third party consents required in connection herewith, including consents from the Original Secured Parties to pledge the Collateral to pari passu with the Purchasers as security for the Notes.
(b) The Company shall have executed and delivered to the Purchasers at Closing the Transaction Documents.
(c) The Company shall have satisfied all judgment liens liens, if any, against it filed of record with the U.S. Patent and Trademark Office or otherwise.
(d) The Company shall have obtained the written consent of Fusion Capital Fund II, LLC, an Illinois limited liability company and prospective current funding source for Millenium upon consummation of the MergerTVG, to the transactions contemplated hereby in such form as the Purchasers shall require.
(e) The Company shall have paid Whitebox Advisors a $180,000 25,000 cash origination fee related to the transactions contemplated hereby.
(f) Sheppard, Mullin, Rxxxxxx Bxxxxxx & Hampton LLPAssociates, legal counsel to the Company (“SMRH”)Company, shall have delivered an opinion to the Purchasers with respect to the following matters (which opinion may contain customary exclusions and limitations that are reasonably acceptable to counsel for the Purchasers):
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all corporate power and authority necessary to own its properties and to conduct its business as, to SMRH’s our knowledge, it is presently conducted. The Company is qualified to do business and is in good standing in each state where it owns or leases any material property or conducts any material business, except where a failure to so qualify would not have a material adverse effect on the CompanyState of California.
(ii) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents.
(iii) The Transaction Documents have been duly authorized by all necessary corporate action on the part of the Company.
(iv) The authorized capital stock of the Company consists of 10,000,000 shares of Common Stock, par value $0.00025 per share, 6,874,429 shares of which to SMRH’s knowledge are issued and outstanding prior to the Closing, and 5,000,000 shares of Preferred Stock, par value $0.00025 per share, 352,160 shares of which to SMRH’s knowledge are issued and outstanding prior to the Closing. To SMRH’s our knowledge, except as described above or in the Purchase Agreement (including the schedules and exhibits thereto), there are no other presently outstanding preemptive rights to purchase from the Company any of the authorized but unissued stock of the Company.
(v) Each of the Transaction Documents, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
(vi) When issued in compliance with the provisions of the Notes and Warrants (and upon payment as provided by the Warrants), the Shares will be validly issued, fully paid and nonassessable.
(vii) The execution and delivery of the Transaction Documents by the Company will not result in (i) a violation of the Company’s Amended and Restated Certificate of Incorporation or Bylaws, as amended or (ii) a violation of any judgment or order specifically identified on the Schedules to the Purchase Agreement, if any.
(g) The Company shall have procured, at its expense, UCC-type insurance in form and amount satisfactory to the Purchasers as to the perfection and priority of the Purchasers’ security interest in the Collateral.
Appears in 1 contract
Conditions for Closing. 5.1. Conditions for the Company to Satisfy. The several obligations of each Purchaser to purchase its respective Note and Warrant as contemplated by this Agreement is subject to satisfaction of the following contingencies at or prior to the Closing:
(a) The Company shall have obtained all third party consents required in connection herewith, including consents from the Original Secured Parties to pledge the Collateral to pari passu with the Purchasers as security for the Notes.
(b) The Company shall have executed and delivered to the Purchasers at Closing the Transaction Documents.
(c) The Company shall have satisfied all judgment liens liens, if any, against it filed of record with the U.S. Patent and Trademark Office or otherwise.
(d) The Company shall have obtained the written consent of Fusion Capital Fund II, LLC, an Illinois limited liability company and prospective funding source for Millenium upon consummation of the Merger, to the transactions contemplated hereby in such form as the Purchasers shall require.
(e) The Company shall have paid Whitebox Advisors a $180,000 140,000 cash origination fee related to the transactions contemplated hereby.
(fe) Sheppard, Mullin, Rxxxxxx Bxxxxxx & Hampton LLPAssociates, legal counsel to the Company (“SMRH”)Company, shall have delivered an opinion to the Purchasers with respect to the following matters (which opinion may contain customary exclusions and limitations that are reasonably acceptable to counsel for the Purchasers):
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. The Company has all corporate power and authority necessary to own its properties and to conduct its business as, to SMRH’s our knowledge, it is presently conducted. The Company is qualified to do business and is in good standing in each state where it owns or leases any material property or conducts any material business, except where a failure to so qualify would not have a material adverse effect on the CompanyState of California.
(ii) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents.
(iii) The Transaction Documents have been duly authorized by all necessary corporate action on the part of the Company.
(iv) The authorized capital stock of the Company consists of 10,000,000 500,000,000 shares of Common Stock, par value $0.00025 0.001 per share, 6,874,429 shares of which to SMRH’s knowledge are issued and outstanding prior to the Closing, and 5,000,000 2,000,000 shares of Preferred Stock, par value $0.00025 0.001 per share, 352,160 shares of which to SMRH’s knowledge are issued and outstanding prior to the Closing. To SMRH’s our knowledge, except as described above or in the Purchase Agreement (including the schedules and exhibits thereto), there are no other presently outstanding preemptive rights to purchase from the Company any of the authorized but unissued stock of the Company.
(v) Each of the Transaction Documents, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
(vi) When issued in compliance with the provisions of the Notes and Warrants (and upon payment as provided by the Warrants), the Shares will be validly issued, fully paid and nonassessable.
(vii) The execution and delivery of the Transaction Documents by the Company will not result in (i) a violation of the Company’s Amended and Restated Certificate of Incorporation or Bylaws, as amended or (ii) a violation of any judgment or order specifically identified on the Schedules to the Purchase Agreement, if any.
(gf) The Company shall have procured, at its expense, UCC-type insurance in form and amount satisfactory to the Purchasers as to the perfection and priority of the Purchasers’ security interest in the Collateral.
Appears in 1 contract
Conditions for Closing. 5.1. Conditions for the Company to SatisfySatisfy for the Closing. The several obligations obligation of each Purchaser WSL to purchase its respective the Convertible Promissory Note and Warrant as contemplated by this Agreement is subject to satisfaction of the following contingencies at or prior to the Closing:
(a) The Company shall have obtained all third party consents required in connection herewith, including consents to pledge the Collateral to the Purchasers as security for the Noteswith this Agreement.
(b) The Company shall have executed delivered the agreements, documents and delivered to instruments and paid the Purchasers at Closing the Transaction Documentsfees described in Section 2.1(a) of this Agreement.
(c) The Company shall have satisfied performed and complied with all judgment liens against agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by it filed of record with on or before the U.S. Patent and Trademark Office or otherwiseClosing.
(d) The Company shall have obtained the written consent of Fusion Capital Fund IISpectrum Law Group, LLC, an Illinois limited liability company and prospective funding source for Millenium upon consummation of the Merger, to the transactions contemplated hereby in such form as the Purchasers shall require.
(e) The Company shall have paid Whitebox Advisors a $180,000 cash origination fee related to the transactions contemplated hereby.
(f) Sheppard, Mullin, Rxxxxxx & Hampton LLP, legal counsel to the Company (“SMRH”)Company, shall have delivered an opinion to the Purchasers WSL with respect to the following matters (which opinion may contain customary exclusions and limitations that are reasonably acceptable to counsel for the PurchasersWSL):
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Each Subsidiary is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Texas. The Company and each Subsidiary has all corporate power and authority necessary to own its properties and to conduct its business as, to SMRHsuch counsel’s knowledge, it is presently conducted. The Company is qualified to do business and is in good standing in each state where it owns or leases any material property or conducts any material business, except where a failure to so qualify would not have a material adverse effect on the Company.
(ii) The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under the Transaction Documents.
(iii) The Transaction Documents have been duly authorized by all necessary corporate action on the part of the Company.
(iv) The authorized capital stock of the Company consists of 10,000,000 50,000,000 shares of Common Stock, par value $0.00025 0.001 per share, 6,874,429 shares of which to SMRH’s knowledge 20,283,045 shares are issued and outstanding prior to the Closingoutstanding, and 5,000,000 10,000,000 shares of Preferred Stock, par value $0.00025 per share0.001, 352,160 shares of which to SMRH’s knowledge no shares are issued and outstanding prior to the Closing. To SMRH’s knowledge, except as described in the Purchase Agreement (including the schedules and exhibits thereto), there are no other presently outstanding preemptive rights to purchase from the Company any of the authorized but unissued stock of the Companyoutstanding.
(v) Each of the Transaction Documents, when executed and delivered by the Company, will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
(vi) When The Conversion Shares and the Warrant Shares have been duly authorized, and when issued in compliance accordance with the provisions terms of the Notes and Warrants (and upon payment Convertible Promissory Note or Warrant, as provided by the Warrants)applicable, the Shares will be validly issued, fully paid and nonassessable.
(vii) The execution and delivery of the Transaction Documents by the Company will not result in (i) a violation of the Company’s Certificate of Incorporation or Bylaws, as amended Bylaws or (ii) a violation of any judgment or order specifically identified on the Schedules known to the Purchase Agreement, if anysuch counsel.
(g) The Company shall have procured, at its expense, UCC-type insurance in form and amount satisfactory to the Purchasers as to the perfection and priority of the Purchasers’ security interest in the Collateral.
Appears in 1 contract
