Release of X’Xxxx’x. At any time after the date hereof, Mortgage Borrower may obtain the release of the portion of the Flamingo Las Vegas known as X’Xxxx’x, without the payment of a Release Price, upon the satisfaction of each of the following conditions: (a) No Event of Default shall have occurred and be continuing (unless the Event of Default relates solely to X’Xxxx’x and therefore would be fully cured by the release of X’Xxxx’x); (b) Intentionally omitted; (c) X’Xxxx’x shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower (other than, for the avoidance of doubt, distributions of X’Xxxx’x to the equity owners of the Mortgage Borrower and any Mezzanine Borrower in order to facilitate such conveyance to such Person other than a Mortgage Borrower or any Mezzanine Borrower); (d) Prior to the transfer and release of X’Xxxx’x, (i) each applicable municipal authority exercising jurisdiction over the Flamingo Las Vegas shall have approved a lot-split ordinance or other applicable action under local law dividing X’Xxxx’x from the remainder of Flamingo Las Vegas, and a separate assessor parcel number will thereafter be issued for X’Xxxx’x (with the result that, following the issuance of a separate assessor parcel number for X’Xxxx’x, no part of the remaining Flamingo Las Vegas shall be part of a tax lot which includes any portion of X’Xxxx’x), (ii) the separate assessor parcel number referred to in the foregoing clause (i) shall have been applied for and (iii) Mortgage Borrower shall have received an amount (from a Person other than Mortgage Borrower, Mezzanine Borrower or Operating Company) that shall approximate the proportionate unpaid real property taxes for X’Xxxx’x, such amount to be based upon the amount of the current year’s real property tax for Flamingo Las Vegas, the proportionate size of X’Xxxx’x in relation to the entire parcel subject to such real property tax and the anticipated waiting time for issuance of the assessor parcel number referred to in the foregoing clause (i), which Mortgage Borrower shall use to pay in accordance with the terms of this Agreement any real property tax exposure in respect of X’Xxxx’x for any period after the release of X’Xxxx’x for which Mortgage Borrower is liable (and any remaining amounts of which shall be returned promptly after the payment of any such taxes); (e) 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 Flamingo Las Vegas necessary to accomplish the lot split shall have been fulfilled, and after such lot split, the remaining Flamingo Las Vegas 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 (in form and substance is appropriate for the jurisdiction in which the Flamingo Las Vegas is located), if any, shall have been obtained, as evidenced by (1) an Officer’s Certificate or (2) Mortgage Borrower having delivered to Servicer, at Mortgage Borrower’s option, either (A) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (B) a zoning report confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (3) a legal opinion confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent; (f) If reasonably necessary, appropriate reciprocal easement (or condominium) agreements for the benefit and burden of the remaining Flamingo Las Vegas and X’Xxxx’x 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 Flamingo Las Vegas, shall be declared and recorded, and the remaining Flamingo Las Vegas and X’Xxxx’x shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Flamingo Las Vegas; (g) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a) - (f) hereof have occurred or shall occur concurrently with the release of X’Xxxx’x; (h) In connection with the release of X’Xxxx’x, the Flamingo Mortgage Borrower shall have obtained, to the extent reasonably available at such time, an appropriate title policy endorsement to its owners policy on title, to the effect that the release of X’Xxxx’x will not have an adverse affect on such Mortgage Borrower’s ownership of the balance of the Flamingo Las Vegas (following the release of X’Xxxx’x); (i) Delivery of evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that the release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have been released as of the Original Closing Date and to have no value) and the representations and warranties set forth in Sections 4.1.14, 4.1.16 (from and after the issuance of the separate assessor parcel number for X’Xxxx’x), 4.1.21, 4.1.22, 4.1.25, 4.1.30, 4.1.39 and 4.1.40 shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas; (j) Borrower shall have delivered evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that Mortgage Borrower and each Other Mezzanine Borrower has complied with all of the terms and conditions set forth in Section 2.5.3 of the Mortgage Loan Agreement and the applicable Other Mezzanine Loan Agreement with respect to such release; (k) Flamingo Mortgage Borrower and the related Operating Company shall have executed and delivered to Servicer a certified copy of an amendment to the applicable Operating Lease reflecting the release of X’Xxxx’x and the reduction in the “Initial Annual Rent” (as such term is defined in such Operating Lease relating to the Flamingo Las Vegas) by Fifteen Million and No/100 Dollars ($15,000,000.00) (it being understood that so long as the conditions to release described in this Section 2.5.3 are satisfied, the amendment to the Operating Lease relating to the Flamingo Las Vegas shall be permitted under the Loan Documents and such Operating Lease without the consent of Lender notwithstanding any provision thereof to the contrary); (l) The payment by Borrower of Collateral Agent’s and Servicer’s reasonable out-of-pocket costs and expenses in connection with the release contemplated by this paragraph, including reasonable counsel fees and disbursements; (m) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.3. Notwithstanding anything to the contrary contained herein (subject to Section 9.1(d) of the Mortgage Loan Agreement), each of Servicer, 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 X’Xxxx’x in accordance with this paragraph. The parties acknowledge and agree that the Operating Company in respect of the Flamingo Las Vegas, both before and after the release contemplated by this paragraph, 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. For the avoidance of doubt, the parties agree that (for so long as X’Xxxx’x has not been released) X’Xxxx’x shall be included in computations of EBITDAM and Excess Cash Flow.
Appears in 7 contracts
Samples: Second Mezzanine Loan Agreement (Harrahs Entertainment Inc), Fifth Mezzanine Loan Agreement (Harrahs Entertainment Inc), Eighth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of X’Xxxx’x. At any time after the date hereof, Mortgage Borrower may obtain the release of the portion of the Flamingo Las Vegas known as X’Xxxx’x, without the payment of a Release Price, upon the satisfaction of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless the Event of Default relates solely to X’Xxxx’x and therefore would be fully cured by the release of X’Xxxx’x);
(b) Intentionally omittedBorrower shall submit to Collateral Agent and Servicer, not less than ten (10) Business Days prior to the date of the proposed release (or such lesser time as Collateral Agent and Servicer shall agree), a release of Lien (and related Loan Documents) and/or authorization to the trustee under the Mortgage to release such Lien, as applicable, for X’Xxxx’x for execution by Collateral Agent. Such release and/or authorization shall be in a form appropriate in the jurisdiction in which X’Xxxx’x is located and that contains standard provisions, if any, protecting the rights of Lender and Collateral Agent (as releasing secured parties);
(c) X’Xxxx’x shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower (other than, for the avoidance of doubt, distributions of X’Xxxx’x to the equity owners of the Mortgage Borrower and any Mezzanine Borrower in order to facilitate such conveyance to such Person other than a Mortgage Borrower or any Mezzanine Borrower);
(d) Prior to the transfer and release of X’Xxxx’x, (i) each applicable municipal authority exercising jurisdiction over the Flamingo Las Vegas shall have approved a lot-split ordinance or other applicable action under local law dividing X’Xxxx’x from the remainder of Flamingo Las Vegas, and a separate assessor parcel number will thereafter be issued for X’Xxxx’x (with the result that, following the issuance of a separate assessor parcel number for X’Xxxx’x, no part of the remaining Flamingo Las Vegas shall be part of a tax lot which includes any portion of X’Xxxx’x), (ii) the separate assessor parcel number referred to in the foregoing clause (i) shall have been applied for and (iii) Mortgage Borrower shall have received an amount (from a Person other than Mortgage Borrower, Mezzanine Borrower or Operating Company) that shall approximate the proportionate unpaid real property taxes for X’Xxxx’x, such amount to be based upon the amount of the current year’s real property tax for Flamingo Las Vegas, the proportionate size of X’Xxxx’x in relation to the entire parcel subject to such real property tax and the anticipated waiting time for issuance of the assessor parcel number referred to in the foregoing clause (i), which Mortgage Borrower shall use to pay in accordance with the terms of this Agreement any real property tax exposure in respect of X’Xxxx’x for any period after the release of X’Xxxx’x for which Mortgage Borrower is liable (and any remaining amounts of which shall be returned promptly after the payment of any such taxes);
(e) 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 Flamingo Las Vegas necessary to accomplish the lot split shall have been fulfilled, and after such lot split, the remaining Flamingo Las Vegas 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 (in form and substance is appropriate for the jurisdiction in which the Flamingo Las Vegas is located), if any, shall have been obtained, as evidenced by (1) an Officer’s Certificate or (2) Mortgage Borrower having delivered to Servicer, at Mortgage Borrower’s option, either (A) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (B) a zoning report confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (3) a legal opinion confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent;
(f) If reasonably necessary, appropriate reciprocal easement (or condominium) agreements for the benefit and burden of the remaining Flamingo Las Vegas and X’Xxxx’x 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 Flamingo Las Vegas, shall be declared and recorded, and the remaining Flamingo Las Vegas and X’Xxxx’x shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Flamingo Las Vegas;
(g) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a) - (fa)-(f) hereof have occurred or shall occur concurrently with the release of X’Xxxx’x;
(h1) Collateral Agent and Servicer shall have received an appropriate title policy endorsement to the effect that the release of X’Xxxx’x will not have an adverse affect on the priority of the Lien of the related Mortgage on the balance of the Flamingo Las Vegas (following the release of X’Xxxx’x), provided, however, the Lien of the Mortgage on the balance of the Flamingo Las Vegas shall be subordinated to any easements created in connection with the release of X’Xxxx’x pursuant to this Section 2.5.3 (and Collateral Agent agrees to execute a subordination agreement in form reasonably requested by Borrower); (2) In connection with the release of X’Xxxx’x, the Flamingo Mortgage Individual Borrower shall have obtained, to the extent reasonably available at such time, an appropriate title policy endorsement to its owners policy on title, to the effect that the release of X’Xxxx’x will not have an adverse affect on such Mortgage Borrower’s ownership of the balance of the Flamingo Las Vegas (following the release of X’Xxxx’x);
(i) Delivery of evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that the release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have been released as of the Original Closing Date and to have no value) and the representations and warranties set forth in Sections 4.1.14, 4.1.16 (from and after the issuance of the separate assessor parcel number for X’Xxxx’x), 4.1.21, 4.1.22, 4.1.25, 4.1.30, 4.1.39 and 4.1.40 shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas;
(j) Borrower shall have delivered evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that Mortgage Borrower and each Other Mezzanine Borrower has complied with all of the terms and conditions set forth in Section 2.5.3 of the Mortgage Loan Agreement and the applicable Other Mezzanine Loan Agreement with respect to such release;
(k) Flamingo Mortgage Individual Borrower and the related Operating Company shall have executed and delivered to Servicer a certified copy of an amendment to the applicable Operating Lease reflecting the release of X’Xxxx’x and the reduction in the “Initial Annual Rent” (as such term is defined in such Operating Lease relating to the Flamingo Las Vegas) by Fifteen Million and No/100 Dollars ($15,000,000.00) (it being understood that so long as the conditions to release described in this Section 2.5.3 are satisfied, the amendment to the Operating Lease relating to the Flamingo Las Vegas shall be permitted under the Loan Documents and such Operating Lease without the consent of Lender notwithstanding any provision thereof to the contrary);; and
(l) The payment by Borrower of Collateral Agent’s and Servicer’s reasonable out-of-pocket costs and expenses in connection with the release contemplated by this paragraph, including reasonable counsel fees and disbursements;
; and the payment by Borrower of (mi) There shall be no release all recording charges and fees relating to the recordation of any portion of the Lien of the Pledge Agreement easements executed as contemplated in connection with this Section 2.5.3, any deed(s) or any mortgage releases relating to X’Xxxx’x and (ii) any title insurance, zoning reports, or other materials or instruments delivered to Collateral Agent and Servicer as may be required pursuant to this Section 2.5.3. Notwithstanding anything to the contrary contained herein (but subject to Section 9.1(d) of the Mortgage Loan Agreement)), each of Servicer, 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 X’Xxxx’x in accordance with this paragraph. The parties acknowledge and agree that the Operating Company in respect of the Flamingo Las Vegas, both before and after the release contemplated by this paragraph, 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. For the avoidance of doubt, the parties agree that (for so long as X’Xxxx’x has not been released) X’Xxxx’x shall be included in computations of EBITDAM and Excess Cash Flow.
Appears in 1 contract
Release of X’Xxxx’x. At any time after the date hereof, Mortgage Borrower may obtain the release of the portion of the Flamingo Las Vegas known as X’Xxxx’x, without the payment of a Release Price, upon the satisfaction of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless the Event of Default relates solely to X’Xxxx’x and therefore would be fully cured by the release of X’Xxxx’x);
(b) Intentionally omitted;
(c) X’Xxxx’x shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower (other than, for the avoidance of doubt, distributions of X’Xxxx’x to the equity owners of the Mortgage Borrower and any Mezzanine Borrower in order to facilitate such conveyance to such Person other than a Mortgage Borrower or any Mezzanine Borrower);
(d) Prior to the transfer and release of X’Xxxx’x, (i) each applicable municipal authority exercising jurisdiction over the Flamingo Las Vegas shall have approved a lot-split ordinance or other applicable action under local law dividing X’Xxxx’x from the remainder of Flamingo Las Vegas, and a separate assessor parcel number will thereafter be issued for X’Xxxx’x (with the result that, following the issuance of a separate assessor parcel number for X’Xxxx’x, no part of the remaining Flamingo Las Vegas shall be part of a tax lot which includes any portion of X’Xxxx’x), (ii) the separate assessor parcel number referred to in the foregoing clause (i) shall have been applied for and (iii) Mortgage Borrower shall have received an amount (from a Person other than Mortgage Borrower, Mezzanine Borrower or Operating Company) that shall approximate the proportionate unpaid real property taxes for X’Xxxx’x, such amount to be based upon the amount of the current year’s real property tax for Flamingo Las Vegas, the proportionate size of X’Xxxx’x in relation to the entire parcel subject to such real property tax and the anticipated waiting time for issuance of the assessor parcel number referred to in the foregoing clause (i), which Mortgage Borrower shall use to pay in accordance with the terms of this Agreement any real property tax exposure in respect of X’Xxxx’x for any period after the release of X’Xxxx’x for which Mortgage Borrower is liable (and any remaining amounts of which shall be returned promptly after the payment of any such taxes);
(e) 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 Flamingo Las Vegas necessary to accomplish the lot split shall have been fulfilled, and after such lot split, the remaining Flamingo Las Vegas 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 (in form and substance is appropriate for the jurisdiction in which the Flamingo Las Vegas is located), if any, shall have been obtained, as evidenced by (1) an Officer’s Certificate or (2) Mortgage Borrower having delivered to Servicer, at Mortgage Borrower’s option, either (A) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (B) a zoning report confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (3) a legal opinion confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent;
(f) If reasonably necessary, appropriate reciprocal easement (or condominium) agreements for the benefit and burden of the remaining Flamingo Las Vegas and X’Xxxx’x 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 Flamingo Las Vegas, shall be declared and recorded, and the remaining Flamingo Las Vegas and X’Xxxx’x shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Flamingo Las Vegas;
(g) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a) - (f) hereof have occurred or shall occur concurrently with the release of X’Xxxx’x;
(h) In connection with the release of X’Xxxx’x, the Flamingo Mortgage Borrower shall have obtained, to the extent reasonably available at such time, an appropriate title policy endorsement to its owners policy on title, to the effect that the release of X’Xxxx’x will not have an adverse affect on such Mortgage Borrower’s ownership of the balance of the Flamingo Las Vegas (following the release of X’Xxxx’x);
(i) Delivery of evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that the release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have been released as of the Original Closing Date and to have no value) and the representations and warranties set forth in Sections 4.1.14, 4.1.16 (from and after the issuance of the separate assessor parcel number for X’Xxxx’x), 4.1.21, 4.1.22, 4.1.25, 4.1.30, 4.1.39 and 4.1.40 shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas;
(j) Borrower shall have delivered evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that Mortgage Borrower and each Other Mezzanine Borrower has complied with all of the terms and conditions set forth in Section 2.5.3 of the Mortgage Loan Agreement and the applicable Other Mezzanine Loan Agreement with respect to such release;
(k) Flamingo Mortgage Borrower and the related Operating Company shall have executed and delivered to Servicer a certified copy of an amendment to the applicable Operating Lease reflecting the release of X’Xxxx’x and the reduction in the “Initial Annual Rent” (as such term is defined in such Operating Lease relating to the Flamingo Las Vegas) by Fifteen Million and No/100 Dollars ($15,000,000.00) (it being understood that so long as the conditions to release described in this Section 2.5.3 are satisfied, the amendment to the Operating Lease relating to the Flamingo Las Vegas shall be permitted under the Loan Documents and such Operating Lease without the consent of Lender notwithstanding any provision thereof to the contrary);
(l) The payment by Borrower of Collateral Agent’s and Servicer’s reasonable out-of-pocket costs and expenses in connection with the release contemplated by this paragraph, including reasonable counsel fees and disbursements;
(m) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.3. Notwithstanding anything to the contrary contained herein (subject to Section 9.1(d) of the Mortgage Loan Agreement), each of Servicer, 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 X’Xxxx’x in accordance with this paragraph. The parties acknowledge and agree that the Operating Company in respect of the Flamingo Las Vegas, both before and after the release contemplated by this paragraph, 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. For the avoidance of doubt, the parties agree that (for so long as X’Xxxx’x has not been released) X’Xxxx’x shall be included in computations of EBITDAM and Excess Cash Flow.this
Appears in 1 contract
Samples: First Mezzanine Loan Agreement (Harrahs Entertainment Inc)
Release of X’Xxxx’x. At any time after the date hereof, Mortgage Borrower may obtain the release of the portion of the Flamingo Las Vegas known as X’Xxxx’x, without the payment of a Release Price, upon the satisfaction of each of the following conditions:
(a) No Event of Default shall have occurred and be continuing (unless the Event of Default relates solely to X’Xxxx’x and therefore would be fully cured by the release of X’Xxxx’x);
(b) Intentionally omitted;
(c) X’Xxxx’x shall be conveyed to a Person other than a Mortgage Borrower or any Mezzanine Borrower (other than, for the avoidance of doubt, distributions of X’Xxxx’x to the equity owners of the Mortgage Borrower and any Mezzanine Borrower in order to facilitate such conveyance to such Person other than a Mortgage Borrower or any Mezzanine Borrower);
(d) Prior to the transfer and release of X’Xxxx’x, (i) each applicable municipal authority exercising jurisdiction over the Flamingo Las Vegas shall have approved a lot-split ordinance or other applicable action under local law dividing X’Xxxx’x from the remainder of Flamingo Las Vegas, and a separate assessor parcel number will thereafter be issued for X’Xxxx’x (with the result that, following the issuance of a separate assessor parcel number for X’Xxxx’x, no part of the remaining Flamingo Las Vegas shall be part of a tax lot which includes any portion of X’Xxxx’x), (ii) the separate assessor parcel number referred to in the foregoing clause (i) shall have been applied for and (iii) Mortgage Borrower shall have received an amount (from a Person other than Mortgage Borrower, Mezzanine Borrower or Operating Company) that shall approximate the proportionate unpaid real property taxes for X’Xxxx’x, such amount to be based upon the amount of the current year’s real property tax for Flamingo Las Vegas, the proportionate size of X’Xxxx’x in relation to the entire parcel subject to such real property tax and the anticipated waiting time for issuance of the assessor parcel number referred to in the foregoing clause (i), which Mortgage Borrower shall use to pay in accordance with the terms of this Agreement any real property tax exposure in respect of X’Xxxx’x for any period after the release of X’Xxxx’x for which Mortgage Borrower is liable (and any remaining amounts of which shall be returned promptly after the payment of any such taxes);
(e) 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 Flamingo Las Vegas necessary to accomplish the lot split shall have been fulfilled, and after such lot split, the remaining Flamingo Las Vegas 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 (in form and substance is appropriate for the jurisdiction in which the Flamingo Las Vegas is located), if any, shall have been obtained, as evidenced by (1) an Officer’s Certificate or (2) Mortgage Borrower having delivered to Servicer, at Mortgage Borrower’s option, either (A) letters or other evidence from the appropriate municipal authorities confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (B) a zoning report confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent, or (3) a legal opinion confirming such compliance with laws in substance reasonably satisfactory to Servicer and Collateral Agent;
(f) If reasonably necessary, appropriate reciprocal easement (or condominium) agreements for the benefit and burden of the remaining Flamingo Las Vegas and X’Xxxx’x 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 Flamingo Las Vegas, shall be declared and recorded, and the remaining Flamingo Las Vegas and X’Xxxx’x shall be in compliance with all applicable covenants under all easements and property agreements contained in the Permitted Encumbrances for the Flamingo Las Vegas;
(g) Borrower has delivered an Officer’s Certificate to the effect that, to such officer’s knowledge after diligent inquiry, the conditions in subsection (a) - (f) hereof have occurred or shall occur concurrently with the release of X’Xxxx’x;
(h) In connection with the release of X’Xxxx’x, the Flamingo Mortgage Borrower shall have obtained, to the extent reasonably available at such time, an appropriate title policy endorsement to its owners policy on title, to the effect that the release of X’Xxxx’x will not have an adverse affect on such Mortgage Borrower’s ownership of the balance of the Flamingo Las Vegas (following the release of X’Xxxx’x);
(i) Delivery of evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that the release will not have either an Individual Material Adverse Effect on the remainder of the Flamingo Las Vegas or an Aggregate Material Adverse Effect (it being understood that, for purposes of such determinations, X’Xxxx’x shall be deemed to have been released as of the Original Closing Date and to have no value) and the representations and warranties set forth in Sections 4.1.14, 4.1.16 (from and after the issuance of the separate assessor parcel number for X’Xxxx’x), 4.1.21, 4.1.22, 4.1.25, 4.1.30, 4.1.39 and 4.1.40 shall continue to be true and complete with respect to the remainder of the Flamingo Las Vegas;
(j) Borrower shall have delivered evidence reasonably satisfactory to Servicer and Collateral Agent, which may be in the form of an Officer’s Certificate, that Mortgage Borrower and each Other Mezzanine Borrower has complied with all of the terms and conditions set forth in Section 2.5.3 of the Mortgage Loan Agreement and the applicable Other Mezzanine Loan Agreement with respect to such release;
(k) Flamingo Mortgage Borrower and the related Operating Company shall have executed and delivered to Servicer a certified copy of an amendment to the applicable Operating Lease reflecting the release of X’Xxxx’x and the reduction in the “Initial Annual Rent” (as such term is defined in such Operating Lease relating to the Flamingo Las Vegas) by Fifteen Million and No/100 Dollars ($15,000,000.00) (it being understood that so long as the conditions to release described in this Section 2.5.3 are satisfied, the amendment to the Operating Lease relating to the Flamingo Las Vegas shall be permitted under the Loan Documents and such Operating Lease without the consent of Lender notwithstanding any provision thereof to the contrary);
(l) The payment by Borrower of Collateral Agent’s and Servicer’s reasonable out-of-pocket costs and expenses in connection with the release contemplated by this paragraph, including reasonable counsel fees and disbursements;
(m) There shall be no release of any portion of the Lien of the Pledge Agreement in connection with this Section 2.5.3. Notwithstanding anything to the contrary contained herein (subject to Section 9.1(d) of the Mortgage Loan Agreement), each of Servicer, 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 X’Xxxx’x in accordance with this paragraph. The parties acknowledge and agree that the Operating Company in respect of the Flamingo Las Vegas, both before and after the release contemplated by this paragraph, 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. For the avoidance of doubt, the parties agree that (for so long as X’Xxxx’x has not been released) X’Xxxx’x shall be included in computations of EBITDAM and Excess Cash Flow.
Appears in 1 contract
Samples: Fourth Mezzanine Loan Agreement (Harrahs Entertainment Inc)
