HAVE MADE ANY REPRESENTATION OR WARRANTY TO
MORGANS IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
6.
REPRESENTATIONS AND WARRANTIES OF THE MORGANS PARTIES
Except as specifically set forth in certain schedules provided by the Morgans
Parties to DLJMB and attached to this Agreement, which are numbered to
correspond to the Section numbers of this Agreement, Morgans hereby represents
and warrants to DLJMB as of the Effective Date as follows (provided, that the
representations and warranties set forth in Sections 6.3 and 6.4 shall be true
and correct only as of the Effective Date and shall not be deemed to be made as
of the Closing Date:
6.1.
ORGANIZATION, GOOD STANDING, QUALIFICATION.
MORGANS IS A DELAWARE
CORPORATION DULY ORGANIZED, VALIDLY EXISTING AND IN GOOD STANDING UNDER THE LAWS
OF ITS JURISDICTION OF ORGANIZATION.
MORGANS HAS THE REQUISITE POWER AND
AUTHORITY NECESSARY TO CARRY OUT THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT.
6.2.
AUTHORIZATION; NO BREACH.
THIS AGREEMENT HAS BEEN DULY AUTHORIZED,
EXECUTED AND DELIVERED BY MORGANS.
NO VOTE OF THE SHAREHOLDERS OF MORGANS IS
REQUIRED FOR MORGANS TO
12
AUTHORIZE, EXECUTE, DELIVER AND PERFORM THIS AGREEMENT.
ASSUMING THAT THIS
AGREEMENT IS A VALID AND BINDING OBLIGATION OF DLJMB, THIS AGREEMENT CONSTITUTES
A VALID AND BINDING OBLIGATION OF MORGANS, ENFORCEABLE IN ACCORDANCE WITH ITS
TERMS, EXCEPT AS ENFORCEABILITY MAY BE LIMITED BY BANKRUPTCY LAWS, OTHER SIMILAR
LAWS AFFECTING CREDITORS' RIGHTS AND GENERAL PRINCIPLES OF EQUITY AFFECTING THE
AVAILABILITY OF SPECIFIC PERFORMANCE AND OTHER EQUITABLE REMEDIES.
EXCEPT AS
SET FORTH ON SCHEDULE 6.2, THE EXECUTION, DELIVERY AND PERFORMANCE BY MORGANS OF
THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE ASSIGNMENT OF THE MORGANS
PARTIES' RIGHTS UNDER THE ACQUISITION AGREEMENTS TO HOLDINGS) DOES NOT AND SHALL
NOT (I) CONFLICT WITH ANY OF THE PROVISIONS OF THE ARTICLES OF INCORPORATION OR
BYLAWS OF MORGANS (II) CONFLICT WITH, RESULT IN A BREACH OF THE TERMS,
CONDITIONS OR PROVISIONS OF, OR CONSTITUTE A DEFAULT UNDER (WHETHER WITH OR
WITHOUT THE PASSAGE OF TIME, THE GIVING OF NOTICE OR BOTH) ANY AGREEMENT,
CONTRACT OR INSTRUMENT TO WHICH MORGANS IS BOUND, (III) RESULT IN THE CREATION
OF ANY LIEN OR ENCUMBRANCE UPON HOLDINGS' EQUITY INTERESTS OR ASSETS OR ANY
EQUITY INTERESTS OR ASSETS THAT COMPRISE PART OF THE ACQUIRED ASSETS, OTHER THAN
AS CONTEMPLATED HEREIN OR BY THE CREDIT FACILITY COMMITMENT LETTER, (IV) RESULT
IN A VIOLATION OF ANY LAW, STATUTE, RULE, REGULATION, ORDER, JUDGMENT OR DECREE
TO WHICH MORGANS IS SUBJECT OR (V) EXCEPT FOR GAMING APPROVALS, REQUIRE ANY
AUTHORIZATION, CONSENT, APPROVAL, EXEMPTION OR OTHER ACTION BY OR NOTICE OR
DECLARATION TO, OR FILING WITH, ANY THIRD PARTY OR ANY GOVERNMENTAL BODY.
EXCEPT AS SET FORTH ON SCHEDULE 6.2, NONE OF THE MORGANS PARTIES IS (AND
FOLLOWING THE ASSIGNMENT OF THE ACQUISITION AGREEMENTS TO HOLDINGS, HOLDINGS
WILL NOT BE) BOUND BY ANY AGREEMENT, OR PARTY TO ANY WRITTEN NON-BINDING TERM
SHEET, (A) WITH RESPECT TO THE ACQUIRED ASSETS (INCLUDING, WITHOUT LIMITATION,
ANY AGREEMENT TO SELL OR DISPOSE OF ANY INTERESTS THEREIN), OR (B) COMMITTING IT
TO ISSUE