NO CONDITIONS
TO BORROWER'S RIGHT TO COMMENCE CONSTRUCTION (OTHER THAN THE PAYMENT OF CERTAIN
AMOUNTS WHICH ARE TO BE PAID ON THE CLOSING DATE AS SET FORTH IN THAT CERTAIN
LETTER OF DIRECTION, DATED AS OF THE CLOSING DATE, BY THE BORROWER TO THE
AGENT), AND ALL RELEVANT CONSTRUCTION
47
PERMITS, LICENSES AND APPROVALS, HAVE BEEN OBTAINED AND SHALL HAVE BEEN
DELIVERED TO AGENT AND APPROVED BY AGENT AND CONSTRUCTION CONSULTANT;
(N)
AGENT SHALL HAVE RECEIVED EVIDENCE REASONABLY SATISFACTORY TO
AGENT THAT NO SHORTFALLS EXIST;
(O)
AGENT SHALL HAVE RECEIVED (I) THE TITLE INSURANCE POLICY, TOGETHER
WITH EVIDENCE OF COINSURANCE AND REINSURANCE DIRECT ACCESS ARRANGEMENTS AS AGENT
SHALL REASONABLY REQUIRE AND (II) COPIES OF ALL OTHER POLICIES OF ALL INSURANCE
REQUIRED TO BE MAINTAINED PURSUANT TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR OTHER EVIDENCE OF SUCH INSURANCE ACCEPTABLE TO AGENT IN ITS REASONABLE
DISCRETION;
(P)
AGENT SHALL HAVE RECEIVED EVIDENCE REASONABLY ACCEPTABLE TO AGENT
(INCLUDING, WITHOUT LIMITATION, LETTERS FROM APPLICABLE GOVERNMENTAL
AUTHORITIES, OPINIONS FROM ZONING COUNSEL AND CERTIFICATIONS FROM THE ARCHITECT)
THAT THE PROJECT AND THE PROPERTY DOES AND WILL COMPLY WITH ALL APPLICABLE
ZONING, SUBDIVISION, LAND USE, PARKING, ENVIRONMENTAL AND BUILDING STATUTES,
CODES, ORDINANCES, REGULATIONS, VARIANCES AND SPECIAL REGULATIONS;
(Q)
EACH OF MTR GAMING GROUP, INC. ("MTR GAMING"), SOUTHWEST CASINO
CORPORATION ("SOUTHWEST CASINO") AND EACH SPONSOR SHALL HAVE EXECUTED AN
AGREEMENT, IN FORM AND SUBSTANCE REASONABLY ACCEPTABLE TO AGENT, PROVIDING THAT
MTR GAMING, SOUTHWEST CASINO AND EACH SPONSOR, RESPECTIVELY, SHALL (I) TO THE
EXTENT NOT PROHIBITED BY EXISTING AGREEMENTS TO WHICH IT IS A PARTY, INVEST
ADDITIONAL AMOUNTS IN THE BORROWER TO THE EXTENT NECESSARY TO CAUSE THE PROJECT
TO BE COMPLETED AND PROJECT OPENING TO OCCUR, (II) COVENANTED NOT TO ENTER INTO
ANY AGREEMENT, OR OTHERWISE PERMIT TO EXIST, ANY RESTRICTION ON MAKING ANY
INVESTMENT OR PROVIDING SUPPORT TO BORROWER OTHER THAN THOSE IN EXISTENCE ON THE
DATE HEREOF AND (III) AGREED TO PAY TO AGENT THE AMOUNT OF ANY DIVIDEND,
DISTRIBUTION OR PAYMENT MADE TO SUCH ENTITY OR ITS AFFILIATES IN VIOLATION OF
THIS AGREEMENT.
(R)
EACH REPRESENTATION AND WARRANTY BY ANY LOAN PARTY CONTAINED
HEREIN OR IN ANY OTHER LOAN DOCUMENT IS TRUE AND CORRECT IN ALL MATERIAL
RESPECTS (WITHOUT DUPLICATION OF ANY MATERIALITY QUALIFIER CONTAINED THEREIN) AS
OF THE CLOSING DATE;
(S)
NO DEFAULT OR EVENT OF DEFAULT HAS OCCURRED AND IS CONTINUING OR
WOULD RESULT AFTER GIVING EFFECT TO THE INITIAL ADVANCE; AND
(T)
BORROWER SHALL DELIVER ALL DOCUMENTS LISTED ON, TAKE ALL ACTIONS
SET FORTH ON AND SATISFY ALL OTHER CONDITIONS PRECEDENT LISTED IN THE CLOSING
CHECKLIST ATTACHED HERETO AS ANNEX B, ALL IN FORM AND SUBSTANCE, OR IN A MANNER,
REASONABLY SATISFACTORY TO AGENT.
3.2
Conditions to Advances.
Lenders shall not be obligated to make
any Advance subsequent to the Initial Advance, (A) if as of the date thereof
(the "Funding Date") (i) any representation and warranty by any Loan Party
contained herein or in any other Loan Document is untrue or incorrect in any
material respect (without duplication