have been satisfied
or waived (other than conditions to be satisfied at the Closing itself) , or
such other time and place as the parties may mutually agree (the date on which
the Closing takes place is referred to herein as the "Closing Date"), but in no
event more than five (5) days after the Execution Date.
Notwithstanding the
actual Closing Date, the parties agree that the Effective Date of Closing for
tax and accounting purposes shall be October 1, 2007).
(b)
Payment and Deliveries.
Subject to the conditions set forth in
this Agreement, at the Closing:
(I)
BUYER SHALL PAY, AT THE CLOSING DATE, THE CASH PURCHASE PRICE BY
WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT WHICH HAS BEEN
DESIGNATED IN WRITING BY SELLER TO BUYER;
(II)
SELLER SHALL CONVEY, FREE AND CLEAR OF ANY LIENS, ALL OF THE
PURCHASED ASSETS TO BUYER AND SHALL DELIVER TO BUYER SUCH APPROPRIATELY EXECUTED
INSTRUMENTS OF SALE, TRANSFER, ASSIGNMENT, CONVEYANCE AND DELIVERY, BILLS OF
SALE, ASSIGNMENTS AND ASSUMPTIONS, INTELLECTUAL PROPERTY ASSIGNMENTS OR OTHER
INTELLECTUAL PROPERTY CONVEYANCE DOCUMENTS, CERTIFICATES OF TITLE, AND ALL OTHER
INSTRUMENTS OF CONVEYANCE, INCLUDING THOSE WHICH ARE REASONABLY REQUESTED TO
EFFECT TRANSFER TO BUYER OF GOOD AND MARKETABLE TITLE, FREE AND CLEAR OF ANY
LIENS, TO EACH OF THE PURCHASED ASSETS, AND A VALID AND MARKETABLE LICENSE TO
THE LICENSED PATENTS, ALONG WITH A NON-DISTURBANCE AGREEMENT FROM ABLECO FINANCE
LLC ("ABLECO"), INCLUDING DOCUMENTS ACCEPTABLE FOR RECORDATION IN THE UNITED
STATES PATENT AND TRADEMARK OFFICE, THE UNITED STATES COPYRIGHT OFFICE AND ANY
OTHER SIMILAR DOMESTIC OR FOREIGN
14
OFFICE, DEPARTMENT OR AGENCY, IT BEING UNDERSTOOD THAT ALL OF THE FOREGOING
SHALL BE SATISFACTORY IN FORM AND SUBSTANCE TO BUYER AND ITS COUNSEL; (HOWEVER,
WITH RESPECT TO ANY FOREIGN OFFICES, DEPARTMENTS OR AGENCIES, SUCH DELIVERIES,
SUBJECT TO SECTION 7.5, MAY OCCUR POST-CLOSING.
(III)
SELLER SHALL DELIVER TO BUYER (A) A CERTIFICATE SIGNED BY THE CHIEF
EXECUTIVE OFFICER OF SELLER, DATED THE DATE OF THE CLOSING, STATING THAT EACH OF
THE CONDITIONS SPECIFIED IN SECTION 3.1 BELOW HAVE BEEN SATISFIED AS OF THE
CLOSING; (B) COPIES OF ALL THIRD-PARTY APPROVALS AND GOVERNMENTAL APPROVALS; (C)
TABLE GAMES BOOKS AND RECORDS; (D) CERTIFIED COPIES OF RESOLUTIONS OF SELLER'S
BOARD OF DIRECTORS AND STOCKHOLDERS AUTHORIZING AND APPROVING THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY; AND (E) SUCH OTHER DOCUMENTS OR INSTRUMENTS AS
ARE REQUIRED TO BE DELIVERED AT THE CLOSING PURSUANT TO THE TERMS HEREOF OR THAT
BUYER REASONABLY REQUESTS PRIOR TO THE CLOSING DATE TO EFFECT THE TRANSACTIONS
CONTEMPLATED HEREBY;
(IV)
SELLER SHALL DELIVER TO BUYER AN AFFIDAVIT DATED AS OF THE CLOSING
DATE AND IN FORM AND SUBSTANCE REQUIRED UNDER THE TREASURY REGULATIONS ISSUED
PURSUANT TO SECTION 1445(B) OF THE CODE CERTIFYING THAT SELLER IS NOT A "FOREIGN
PERSON";
(V)
BUYER SHALL DELIVER TO SELLER (A) A CERTIFICATE SIGNED BY AN
AUTHORIZED SIGNATORY OF BUYER, DATED THE DATE OF THE CLOSING, STATING THAT THE
CONDITIONS SPECIFIED IN SUBSECTIONS (A) AND (B)