THE TRANSACTIONS CONTEMPLATED BY
SUCH AGREEMENTS SHALL OCCUR CONCURRENTLY WITH THE CLOSING HEREUNDER;
(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
9
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)
THE CONDITION SET FORTH IN SECTION 5.3(C) OF THE MERGER AGREEMENT
(AS IN EFFECT ON THE DATE HEREOF) SHALL HAVE BEEN SATISFIED, AND THE LIENS
SECURING THE OBLIGATIONS REFERENCED IN SUCH CONDITION SHALL HAVE BEEN RELEASED;
PROVIDED, HOWEVER, IN THE EVENT THAT THE CONDITION DESCRIBED IN THIS CLAUSE (F)
HAS NOT BEEN SATISFIED AT THE CLOSING BUT (I) THE SELLING PARTIES HAVE WAIVED
THE CONDITION SET FORTH IN SECTION 5.3(C) OF THE MERGER AGREEMENT, AND (II) THE
LENDERS UNDER THE PERMANENT FINANCING TERM SHEET HAVE (A) WAIVED AND/OR FUNDED
OVER ANY CONDITION WHICH WOULD REQUIRE THAT THE OUTSTANDING HRH BONDS SHALL HAVE
BEEN DEFEASED, REPAID, DISCHARGED OR OTHERWISE SATISFIED AT THE TIME OF CLOSING
AND THAT THE LIENS SECURING THE SECOND LIEN NOTES SHALL HAVE BEEN RELEASED, AND
(B) NOT REDUCED THE AMOUNT OF FUNDS THAT WOULD HAVE BEEN AVAILABLE TO THE
BORROWERS PRIOR TO THE GRANTING OF SUCH WAIVERS DUE TO THE FAILURE OF ANY
CONDITION REFERRED TO IN THE PRECEDING CLAUSE (A) TO BE SATISFIED, AND (III) THE
MORGANS PARTIES ARE IN COMPLIANCE WITH THEIR OBLIGATIONS UNDER THE THIRD
SENTENCE OF SECTION 7.3 HEREOF, THEN THE CONDITION IN THIS CLAUSE (F) SHALL BE
DEEMED TO BE SATISFIED.
4.2.
CONDITIONS PRECEDENT TO OBLIGATIONS OF MORGANS.
THE OBLIGATIONS OF
MORGANS TO EXECUTE AND DELIVER THE LLC AGREEMENT AND TO PAY THE MORGANS INITIAL
CAPITAL COMMITMENT IN ACCORDANCE WITH SECTION 3.2(A) SHALL BE SUBJECT TO THE
SATISFACTION ON OR PRIOR TO THE CLOSING DATE, OF THE FOLLOWING CONDITIONS, ANY
OF WHICH MAY BE WAIVED, IN WRITING, BY MORGANS IN ITS DISCRETION:
(A)
THE REPRESENTATIONS AND WARRANTIES OF DLJMB CONTAINED IN ARTICLE 5
OF THIS AGREEMENT SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS BOTH ON THE
DATE OF THIS AGREEMENT AND THE CLOSING DATE 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)
DLJMB SHALL HAVE COMPLIED WITH AND PERFORMED IN ALL MATERIAL
RESPECTS, ITS COVENANTS CONTAINED HEREIN WHICH ARE TO BE PERFORMED BY DLJMB ON
OR PRIOR TO THE CLOSING DATE;
(C)
ALL OF THE CONDITIONS TO THE OBLIGATIONS OF ANY OF THE MORGANS
PARTIES TO CLOSE UNDER THE MERGER AGREEMENT (AS SET