FIRST FIFTY MILLION DOLLARS ($50,000,000) (THE "INITIAL
COMPLETION GUARANTY COSTS") OF SUCH LIABILITY PROVIDED THAT (A) DLJMB AND ITS
AFFILIATES SHALL HAVE FULLY FUNDED (INCLUDING FOR PURPOSES OF THIS PARAGRAPH, BY
POSTING LETTERS OF CREDIT WITH RESPECT TO, AND THE FUNDING OF ALL SUCH LETTERS
OF CREDIT BY THE ISSUER THEREOF) ALL OF THE EXPANSION EQUITY CAPITAL REQUIRED TO
SECURE DEBT FINANCING FOR THE APPROVED DEVELOPMENT BUDGET FOR THE EXPANSION
PROJECT (EACH AS DEFINED IN THE LLC AGREEMENT) (EXCEPT TO THE EXTENT THAT
MORGANS HAS ELECTED TO FUND UP TO ITS PRO RATA PORTION THEREOF OR A NEW EQUITY
SOURCE SHALL HAVE FUNDED A PORTION OF THE EXPANSION CAPITAL AS DESCRIBED IN THE
NEXT CLAUSE), (B) IF APPLICABLE, ANY NEW SOURCE OF EQUITY FINANCING PURSUANT TO
THE LLC AGREEMENT SHALL HAVE FULLY FUNDED ITS REQUIRED EQUITY IN CONNECTION WITH
THE EXPANSION (OR IF SUCH PARTY FAILS TO SO FUND ITS CONTRIBUTION, DLJMB OR ITS
DESIGNEE HAS FULLY FUNDED SUCH AMOUNT), (C) THE CONSTRUCTION LENDER SHALL HAVE
FUNDED THE CONSTRUCTION LOAN PROCEEDS AS REQUIRED PURSUANT TO THE CONSTRUCTION
LOAN AGREEMENT, AND (D) ANY COST OR LIABILITY UNDER SUCH COMPLETION GUARANTY
DOES NOT ARISE DUE TO CHANGES BY THE BOARD OF DIRECTORS OF HOLDINGS TO THE SCOPE
OR BUDGET OF THE EXPANSION PROJECT (AS DEFINED IN THE LLC AGREEMENT).
WITH
RESPECT TO THE LETTER OF CREDIT OR GUARANTY REFERRED TO IN THE SECTION OF THE
PERMANENT FINANCING TERM SHEET ENTITLED "MANDATORY PREPAYMENT - SCHEDULED
AMORTIZATION PAYMENTS," EACH OF MORGANS AND DLJMB OR AN AFFILIATE OF DLJMB (AS
REQUIRED BY THE LENDER) SHALL SHARE ON AN EQUAL BASIS IN ANY LIABILITY UNDER
SUCH LETTER OF CREDIT OR GUARANTY.
EACH OF MORGANS AND DLJMB WILL PROVIDE
PROMPT WRITTEN NOTICE TO THE OTHER (I) IF IT HAS KNOWLEDGE (IN THE CASE OF
MORGANS) OR KNOWLEDGE (IN THE CASE OF DLJMB) THAT THE FINANCING CONTEMPLATED BY
THE CREDIT FACILITY COMMITMENT LETTER WILL NOT BE MADE AVAILABLE TO THE MORGANS
PARTIES OR HOLDINGS ON THE CLOSING DATE AND (II) FOLLOWING ANY RECEIPT OF
NOTIFICATION IN WRITING BY ANY FINANCING SOURCE UNDER THE CREDIT FACILITY
COMMITMENT LETTER OR IN CONNECTION WITH ANY SUBSTITUTE DEBT OR OTHER FINANCING
OF SUCH SOURCE'S REFUSAL OR INTENDED REFUSAL TO PROVIDE THE FINANCING DESCRIBED
IN THE APPLICABLE CREDIT FACILITY COMMITMENT LETTER AND, IN EACH CASE, THE
STATED REASONS THEREFOR (IF ANY).
IN ANY SUCH EVENT, MORGANS AND DLJMB WILL USE
THEIR COMMERCIALLY REASONABLE EFFORTS TO ARRANGE SUBSTITUTE FINANCING ON TERMS
AND CONDITIONS REASONABLY SATISFACTORY TO MORGANS AND DLJMB AS PROMPTLY AS
PRACTICABLE (IT BEING UNDERSTOOD THAT ANY FAILURE BY EITHER PARTY TO APPROVE
MATERIAL CHANGES TO THE ECONOMIC TERMS OF THE DEBT FINANCING SHALL NOT BE DEEMED
TO BE UNREASONABLE).
NEITHER THE MORGANS PARTIES NOR HOLDINGS OR ANY OF ITS
SUBSIDIARIES, ON THE ONE HAND, AND DLJMB, ON THE OTHER HAND, WILL ENTER INTO OR
EXECUTE ANY AGREEMENTS, ARRANGEMENTS, DOCUMENTS OR INSTRUMENTS RELATED TO THE
FINANCING CONTEMPLATED BY THE CREDIT FACILITY COMMITMENT LETTER, ANY SUBSTITUTE
OR ADDITIONAL FINANCING OR ANY OTHER DEBT FINANCING,