IN ACCORDANCE WITH THIS
AGREMEENT) AS IF MADE AT AND AS OF SUCH DATE (OR, IN THE CASE OF REPRESENTATIONS
AND WARRANTIES WHICH ADDRESS MATTERS ONLY AS OF A PARTICULAR DATE, AS OF SUCH
DATE);
(B)
THE MORGANS PARTIES SHALL HAVE COMPLIED WITH AND PERFORMED IN ALL
MATERIAL RESPECTS ALL OF THEIR RESPECTIVE COVENANTS CONTAINED HEREIN WHICH ARE
TO BE PERFORMED BY THEM ON OR PRIOR TO THE CLOSING DATE;
(C)
ALL OF THE CONDITIONS TO THE OBLIGATIONS OF THE MORGANS PARTIES TO
CLOSE UNDER THE MERGER AGREEMENT (AS SET FORTH IN SECTION 5.1 AND 5.2 OF THE
MERGER AGREEMENT) SHALL HAVE BEEN SATISFIED AND THE TRANSACTIONS CONTEMPLATED BY
SUCH AGREEMENTS SHALL OCCUR CONCURRENTLY WITH THE CLOSING HEREUNDER;
8
(D)
THERE SHALL BE NO TEMPORARY RESTRAINING ORDER OR PRELIMINARY OR
PERMANENT INJUNCTION OF ANY COURT OR ADMINISTRATIVE AGENCY OF COMPETENT
JURISDICTION PROHIBITING THE CONSUMMATION OF ANY TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT;
(E)
EITHER (I) GOLDEN HRC, LLC OR ONE OF ITS AFFILIATES SHALL HAVE
OBTAINED THE GAMING APPROVALS OR (II) HOLDINGS (OR A DIRECT OR INDIRECT
SUBSIDIARY OF HOLDINGS) SHALL HAVE ENTERED INTO A CASINO LEASE WITH ANOTHER
CASINO OPERATOR AND SUCH OTHER CASINO OPERATOR SHALL HAVE OBTAINED THE GAMING
APPROVALS SUCH THAT THE CASINO AT THE HARD ROCK HOTEL & CASINO IS ABLE TO BE
OPEN FOR BUSINESS ON THE DATE FOLLOWING THE CLOSING DATE; AND
(F)
DLJMB IN ITS SOLE AND ABSOLUTE DISCRETION SHALL HAVE BEEN
SATISFIED BASED ON ONE OR MORE FINANCING PROPOSALS, TERM SHEET OR OTHER
DISCUSSIONS WITH LENDERS THAT THERE WILL BE AVAILABLE ON OR PRIOR TO THE OUTSIDE
DATE THE PROCEEDS FROM ONE OR MORE BANK, MEZZANINE, CMBS OR OTHER DEBT
FACILITIES IN AN AMOUNT SUFFICIENT (AS DETERMINED BY DLJMB IN ITS SOLE AND
ABSOLUTE DISCRETION BASED ON ITS ANTICIPATED REQUIREMENTS CONCERNING THE SOURCES
AND USES OF FUNDS) TO PERMIT HOLDINGS TO (I) CONSUMMATE THE ACQUISITION AND PAY
ALL EXPENSES RELATED THERETO, (II) FINANCE THE ONGOING OPERATIONS OF HOLDINGS
AND ITS SUBSIDIARIES, (III) FINANCE THE DEVELOPMENT AND CONSTRUCTION OF THE
PROPOSED EXPANSION PROJECT (AS DEFINED IN THE LLC AGREEMENT), INCLUDING ANY
MODIFICATIONS THERETO CONTEMPLATED BY DLJMB, IN THE MANNER WHICH DLJMB CONSIDERS
APPROPRIATE, AND (IV) TO PAY ALL SUCH OTHER COSTS, LIABILITIES
AND AMOUNTS AS
DLJMB CONSIDERS NECESSARY OR APPROPRIATE, IN EACH CASE, ON TERMS AND CONDITIONS
(INCLUDING, WITHOUT LIMITATION, AS TO REQUIRED EQUITY AMOUNTS, GUARANTEES AND
SIMILAR MATTERS) WHICH ARE ACCEPTABLE TO DLJMB IN ITS SOLE AND ABSOLUTE
DISCRETION; PROVIDED, HOWEVER, THAT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT
THAT WOULD OTHERWISE REQUIRE NOTICE, THE CONDITION CONTAINED IN THIS CLAUSE (F)
SHALL BE DEEMED TO HAVE BEEN PERMANENTLY SATISFIED AUTOMATICALLY AND WITH NO
FURTHER ACTION BEING REQUIRED BY ANY OF THE PARTIES FOR ALL PURPOSES HEREUNDER
IF DLJMB HAS NOT NOTIFIED MORGANS OF ITS ELECTION TO TERMINATE THIS AGREEMENT
PURSUANT TO SECTION 8.1(C) HEREOF ON OR PRIOR TO 5:00 P.M. EASTERN STANDARD TIME
ON MONDAY, NOVEMBER 20, 2006 (THE "FINANCING WAIVER DATE").
4.2.
CONDITIONS PRECEDENT TO OBLIGATIONS OF MORGANS.
THE OBLIGATIONS OF
MORGANS TO