Release of Convention Center Parcel. At any time after the date hereof, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction of each of the following conditions: (a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel); (b) Intentionally omitted; (c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower; (d) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender; (e) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel); (f) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender; (g) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located; (h) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property; (i) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(h) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel; (j) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions; (k) Collateral Agent shall have received payment of all Collateral Agent’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel; (l) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and (m) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2.
Appears in 9 contracts
Samples: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereof, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant and the release of Borrower’s obligations under the Loan Documents with respect to the Mortgage Loan Agreementsuch parcel of land (other than those expressly stated to survive), without the payment of a Release Price and upon the satisfaction of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omittedBorrower shall submit to Collateral Agent, not less than ten (10) Business Days prior to the date of such release, a release of Lien (and related Loan Documents) for the Convention Center Parcel for execution by Collateral Agent. Such release shall be in a form appropriate in the jurisdiction in which the Convention Center Parcel is located and that contains standard provisions, if any, protecting the rights of Lender and Collateral Agent (as releasing secured parties);
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(d) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(e) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(f) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(g) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(h) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(i) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(h) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(j) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(k) Collateral Agent shall have received payment of all Collateral Agent’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the release of the Convention Center Parcel from the lien of the related Mortgage and the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgagetherewith. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;; and
(l) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other the Mezzanine Borrower Borrowers shall have satisfied all of the conditions to the proposed release set forth in the Mortgage Loan Agreement and each Other of the Mezzanine Loan Agreement, as applicable; and
(m) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2Agreements.
Appears in 2 contracts
Samples: Loan Agreement, Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and the portion of the Flamingo Las Vegas Property known as X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of X’Xxxx’x, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property, and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable,
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower;
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008;
(viii) the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Mortgage Borrower as contemplated above, but X’Xxxx’x cannot (including by reason of an inability to get a separate gaming license for X’Xxxx’x independent of the “Flamingo Las Vegas”), then Borrower shall cause Mortgage Borrower to nevertheless proceed to consummate the swap without transferring X’Xxxx’x (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of X’Xxxx’x from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2, except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with such release) and, pending such release, EBITDAR shall be computed without regard to X’Xxxx’x; provided further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for X’Xxxx’x and shall be reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
Samples: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” and the portion of the Flamingo Las Vegas Property known as X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of X’Xxxx’x, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property, and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable;
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower;
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008;
(viii) the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Mortgage Borrower as contemplated above, but X’Xxxx’x cannot (including by reason of an inability to get a separate gaming license for X’Xxxx’x independent of the “Flamingo Las Vegas”), then Borrower shall cause Mortgage Borrower to nevertheless proceed to consummate the swap without transferring X’Xxxx’x (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of “X’Xxxx’x” from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2), except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with such release), and, pending such release, EBITDAR shall be computed without regard to X’Xxxx’x; provided, further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for X’Xxxx’x and shall be reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of “X’Xxxx’x”, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, O’Shea’s shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property, and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable,
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower,
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008,
(viii) the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Mortgage Borrower as contemplated above, but O’Shea’s cannot (including by reason of an inability to get a separate gaming license for O’Shea’s independent of the “Flamingo Las Vegas”), then Borrower shall cause Mortgage Borrower to nevertheless proceed to consummate the swap without transferring O’Shea’s (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of X’Xxxx’x from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2, except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with such release) and, pending such release, EBITDAR shall be computed without regard to O’Shea’s; provided further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for O’Shea’s and shall be reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant and the release of Borrower’s obligations under the Loan Documents with respect to the Mortgage Loan Agreementsuch parcel of land (other than those expressly stated to survive), without the payment of a Release Price and upon the satisfaction of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omittedBorrower shall submit to Lender, not less than ten (10) Business Days prior to the date of such release, a release of Lien (and related Loan Documents) for the Convention Center Parcel for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Convention Center Parcel is located and that contains standard provisions, if any, protecting the rights of the releasing lender;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(d) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(e) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(f) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(g) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(h) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(i) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(h) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(j) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions, including, if a Securitization shall have occurred, an opinion that the release of the Convention Center Parcel will not be a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury;
(k) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the release of the Convention Center Parcel from the lien of the related Mortgage and the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgagetherewith. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;; and
(l) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other the Mezzanine Borrower Borrowers shall have satisfied all of the conditions to the proposed release set forth in the Mortgage Loan Agreement and each Other of the Mezzanine Loan Agreement, as applicable; and
(m) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2Agreements.
Appears in 1 contract
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” and the portion of the Flamingo Las Vegas Property known as X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of X’Xxxx’x, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property, and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable,
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower;
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008;
(viii) the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Mortgage Borrower as contemplated above, but X’Xxxx’x cannot (including by reason of an inability to get a separate gaming license for X’Xxxx’x independent of the “Flamingo Las Vegas”), then Borrower shall cause Mortgage Borrower to nevertheless proceed to consummate the swap without transferring X’Xxxx’x (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of “X’Xxxx’x” from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2), except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with such release), and, pending such release, EBITDAR shall be computed without regard to X’Xxxx’x; provided, further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for X’Xxxx’x and shall be reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2.
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” and the portion of the Flamingo Las Vegas Property known as X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of X’Xxxx’x, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property , and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable;
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower;
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008;
(viii) the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Mortgage Borrower as contemplated above, but X’Xxxx’x cannot (including by reason of an inability to get a separate gaming license for X’Xxxx’x independent of the “Flamingo Las Vegas”), then Borrower shall cause Mortgage Borrower to nevertheless proceed to consummate the swap without transferring X’Xxxx’x (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of “X’Xxxx’x” from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2), except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with such release), and, pending such release, EBITDAR shall be computed without regard to X’Xxxx’x; provided, further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for X’Xxxx’x and shall be reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, and “Showboat Atlantic City” and the portion of the Flaming Las Vegas Property known as X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of “X’Xxxx’x”, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property, and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable;
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower;
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008;
(viii) the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Mortgage Borrower as contemplated above, but X’Xxxx’x cannot (including by reason of an inability to get a separate gaming license for X’Xxxx’x independent of the “Flamingo Las Vegas”), then Borrower shall cause Mortgage Borrower to nevertheless proceed to consummate the swap without transferring X’Xxxx’x (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of X’Xxxx’x from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2), except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with such release), and, pending such release, EBITDAR shall be computed without regard to X’Xxxx’x; provided further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for X’Xxxx’x and shall be reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
Samples: Ninth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” and the portion of the Flamingo Las Vegas Property known as X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of “X’Xxxx’x”, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property, and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable,
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower,
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008,
(viii) the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Mortgage Borrower as contemplated above, but O’Shea’s cannot (including by reason of an inability to get a separate gaming license for O’Shea’s independent of the “Flamingo Las Vegas”), then Borrower shall cause Mortgage Borrower to nevertheless proceed to consummate the swap without transferring O’Shea’s (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of X’Xxxx’x from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2, except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with such release) and, pending such release, EBITDAR shall be computed without regard to O’Shea’s; provided further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for O’Shea’s and shall be reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereofOriginal Closing Date, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant to the Mortgage Loan Agreement, without the payment of a Release Price and upon the satisfaction by Borrower of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omitted;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(dc) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(ed) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved approved, a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(fe) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(gf) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(hg) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(ih) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(ha)-(g) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(ji) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;
(kj) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgage. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;
(lk) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other Mezzanine Borrower shall have satisfied all of the conditions to the proposed release Release set forth in the Mortgage Loan Agreement and each Other Mezzanine Loan Agreement, as applicable; and
(ml) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.2.. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof and of the Mortgage Loan Agreement, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of “X’Xxxx’x”, written assurances that the substitution will have no negative effects on the existing Title Policies, updated “tie-in” endorsements for the Title Policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) of the Mortgage Loan Agreement and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 of the Mortgage Loan Agreement shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property, and satisfaction of conditions similar to those set forth in clauses (c), (d), (e), (f), (g) and (h) of Section 3.1.3 hereof, as applicable, with respect to X’Xxxx’x;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable,
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Mortgage Borrower or Mezzanine Borrower,
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008;
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Samples: Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of Convention Center Parcel. At any time after the date hereof, Mortgage Borrower may obtain the release of the Convention Center Parcel pursuant and the release of Borrower’s obligations under the Loan Documents with respect to the Mortgage Loan Agreementsuch parcel of land (other than those expressly stated to survive), without the payment of a Release Price and upon the satisfaction of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless, in the case of a release of the Convention Center Parcel, the Event of Default relates solely to such parcel and therefore would be fully cured by the release of the Convention Center Parcel);
(b) Intentionally omittedBorrower shall submit to Lender, not less than ten (10) Business Days prior to the date of such release, a release of Lien (and related Loan Documents) for the Convention Center Parcel for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Convention Center Parcel is located and that contains standard provisions, if any, protecting the rights of the releasing lender;
(c) The Convention Center Parcel shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower;
(d) Mortgage Borrower will enter into a restrictive covenant agreement, restricting the use of the Convention Center Parcel to the development of a Convention Center and ancillary uses which agreement shall be in form and substance reasonably satisfactory to Lender;
(e) Prior to the transfer and release of the Convention Center Parcel, each applicable municipal authority exercising jurisdiction over the Convention Center Parcel shall have approved a lot-split ordinance or other applicable action under local law dividing the Convention Center Parcel from the remainder of the Xxxxxx’x Atlantic City Property, and a separate tax identification number has been issued for the Convention Center Parcel (with the result that, upon the transfer and release of the Convention Center Parcel, no part of the remaining Xxxxxx’x Atlantic City Property shall be part of a tax lot which includes any portion of the Convention Center Parcel);
(f) All requirements under all laws, statutes, rules and regulations (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetlands requirements) applicable to the Xxxxxx’x Atlantic City Property necessary to accomplish the lot split shall have been fulfilled, and all necessary variances, if any, shall have been obtained, and Borrower shall have delivered to Lender either (1) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws, or (2) a zoning report or legal opinion confirming such compliance with laws, in each case in substance reasonably satisfactory to Lender;
(g) As a result of the lot split, the remaining Xxxxxx’x Atlantic City Property with all easements appurtenant and other Permitted Encumbrances thereto will not be in violation of any then applicable law, statute, rule or regulation (including, without limitation, all zoning and subdivision laws, setback requirements, sideline requirements, parking ratio requirements, use requirements, building and fire code requirements, environmental requirements and wetland requirements) and all necessary variances, if any, shall have been obtained and evidence thereof has been delivered to Lender which in form and substance is appropriate for the jurisdiction in which the Xxxxxx’x Atlantic City Property is located;
(h) If reasonably necessary, appropriate reciprocal easement agreements for the benefit and burden of the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel requiring no cost or expense to Mortgage Borrower regarding the use of common facilities of such parcels, including, but not limited to, roadways, parking areas, utilities and community facilities, in a form and substance that would be reasonably acceptable to an ordinary prudent lender and which easements will not materially adversely affect the remaining Xxxxxx’x Atlantic City Property, shall be declared and recorded, and the remaining Xxxxxx’x Atlantic City Property and the Convention Center Parcel shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Xxxxxx’x Atlantic City Property;
(i) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a)-(h) hereof have occurred or shall occur concurrently with the transfer and release of the Convention Center Parcel;
(j) Borrower shall execute such documents and instruments and obtain such opinions of counsel as are typical for similar transactions;, including, if a Securitization shall have occurred, an opinion that the release of the Convention Center Parcel will not be a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury; and
(k) Collateral Agent Lender shall have received payment of all Collateral AgentLender’s reasonable out-of-pocket costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the release of the Convention Center Parcel from the lien of the related Mortgage and the review and approval of the documents and information required to be delivered in connection with the release of the Convention Center Parcel from the Lien of the related Mortgagetherewith. Each of Lender and Collateral Agent acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of the Convention Center Parcel;; and
(l) Lender shall have received evidence reasonably satisfactory to it that Mortgage Borrower and each Other the Mezzanine Borrower Borrowers shall have satisfied all of the conditions to the proposed release set forth in the Mortgage Loan Agreement and each Other of the Mezzanine Loan Agreements. Borrower agrees that it shall promptly use all reasonable best efforts to substitute, and Lender agrees (subject to the terms set forth below in this paragraph) that it shall accept the substitution of, the properties commonly known as “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx” for the Individual Properties referred to as “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” and the portion of the Flamingo Las Vegas Property known as X’Xxxx’x in a reasonably satisfactory manner, provided that Lender’s obligation to accept such substitution shall be conditioned on the following:
(i) that no Event of Default shall exist, either before or after giving effect to such substitution (unless such Event of Default would be fully cured by the substitution);
(ii) the satisfaction, with respect to both “Paris Las Vegas” and “Xxxxxx’x Xxxxxxxx”, of the closing conditions set forth in Article III hereof, except that references therein to the Closing Date shall be to the date of such substitution;
(iii) delivery of such agreements, instruments, title insurance policies, surveys, resolutions, certificates and opinions (including, without limitation, substitute notes, amendments to the Loan Documents (including amendments to adjust the Allocated Loan Amounts, the EBITDAR (Closing Date) and any other items that need to be adjusted to reflect the substitution), the Operating Lease, the Operating Lease Guaranty and the Windstorm Insurance Intercreditor Agreement, an appropriate subdivision and a reciprocal easement agreement in respect of X’Xxxx’x, written assurances that the substitution will have no negative effects on the existing title insurance policies, updated “tie-in” endorsements for the title insurance policies and any endorsements to owner title policies, an Additional True Lease Opinion and an Additional Insolvency Opinion), in each case as are reasonably required by Lender in connection with such substitution;
(iv) with respect to the release of X’Xxxx’x, delivery of evidence reasonably satisfactory to Lender that such release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas Property or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have closed as of the Closing Date and to have no value) and that the remainder of the Flamingo Las Vegas Property satisfies the conditions set forth in Sections 3.1.3(b), (c) and (f) and the representations and warranties set forth in Sections 4.1.4, 4.1.16, 4.1.22, 4.1.39 and 4.1.40 shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas Property;
(v) the satisfaction, with respect to “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x, of the conditions set forth above in Section 2.5.1(b) and (f) with respect to released Individual Properties to the extent applicable;
(vi) the conveyance of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe”, “Showboat Atlantic City” and X’Xxxx’x to a Person other than a Borrower or Mezzanine Borrower;
(vii) unless otherwise extended by Lender, the substitution shall be completed on or prior to May 28, 2008; and
(mviii) There the payment by Borrower of all Lender’s reasonable out-of-pocket costs and expenses in connection with the substitution contemplated by this paragraph, including reasonable counsel fees and disbursements, up to an aggregate amount of $300,000, it being acknowledged that costs incurred to obtain title insurance and surveys in respect of the substituted properties shall be no paid by Borrower directly and shall not be taken into account for purposes of the foregoing limitation on the reimbursement of Lender’s expenses. Lender acknowledges that it shall not charge any fee (other than costs and expenses, as provided in the preceding sentence) in connection with the release of any portion an Individual Property in accordance with this paragraph. In addition, if all of “Xxxxxx’x Lake Tahoe”, “Xxxxxx’x Lake Tahoe”, “Bill’s Lake Tahoe” and “Showboat Atlantic City” can be transferred from Borrower as contemplated above, but X’Xxxx’x cannot (including by reason of an inability to get a separate gaming license for X’Xxxx’x independent of the “Flamingo Las Vegas”), then Borrower and Lender shall nevertheless proceed to consummate the swap without transferring X’Xxxx’x (subject to Borrower’s ongoing right to obtain the release of X’Xxxx’x from the Lien of the Pledge Agreement Mortgage in accordance with the following sentence). Upon the satisfaction of such conditions set forth above in this paragraph (including clauses (i) through (viii) hereof), Borrower will have the right to choose between an immediate release of X’Xxxx’x from the Lien of the Mortgage on the date of the swap or a free release subsequent to the date of the swap without conditions (in either case, subject to the conditions set forth above in this Section 2.5.2, except that the limitation on Borrower’s payment of Lender’s costs and expenses set forth in clause (viii) above shall not apply to any such costs and expenses incurred by Lender in connection with this Section 2.5.2such release), and, pending such release, EBITDAR shall be computed without regard to X’Xxxx’x; provided further, the Operating Company in respect of the “Flamingo Las Vegas” Individual Property, both before and after such release, shall be permitted to provide management and other similar services for X’Xxxx’x and shall reimbursed for the allocable share of expenses attributable to X’Xxxx’x.
Appears in 1 contract
