| þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
| Delaware | 88-0215232 | |
| (State or other jurisdiction of | (I.R.S. Employer Identification No.) | |
| incorporation or organization) |
| Class | Outstanding at November 7, 2005 | |
| Common Stock, $.01 par value | 284,661,416 shares |
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
Table of Contents
Three Months Ended
Nine Months Ended
September 30,
September 30,
2005
2004
2005
2004
$
805,277
$
540,957
$
2,184,468
$
1,651,371
478,462
223,001
1,208,277
690,266
368,186
205,262
963,848
635,066
114,904
67,099
318,762
200,312
75,248
46,023
189,590
139,193
127,291
63,006
295,099
180,107
1,969,368
1,145,348
5,160,044
3,496,315
(161,125
)
(108,952
)
(431,710
)
(320,958
)
1,808,243
1,036,396
4,728,334
3,175,357
415,236
262,619
1,115,792
813,216
143,065
60,266
337,949
185,251
239,581
120,149
594,358
360,478
82,839
48,126
227,705
142,339
48,475
29,849
123,292
88,988
76,853
38,258
180,835
109,482
288,728
160,972
696,805
458,673
32,112
19,183
90,554
53,379
6,147
1,584
12,568
3,584
11
1,587
(59
)
5,901
22,637
1,677
28,633
5,354
161,566
101,245
423,734
296,282
1,517,250
845,515
3,832,166
2,522,927
49,006
31,476
114,936
85,190
339,999
222,357
1,011,104
737,620
3,156
1,421
10,172
3,440
(193,150
)
(95,262
)
(461,966
)
(277,694
)
(4,344
)
(6,419
)
(11,535
)
(19,314
)
1,894
(435
)
(15,578
)
(10,162
)
(192,444
)
(100,695
)
(478,907
)
(303,730
)
147,555
121,662
532,197
433,890
(54,345
)
(45,495
)
(186,740
)
(158,920
)
93,210
76,167
345,457
274,970
—
75,529
—
94,207
—
(24,815
)
—
(31,731
)
—
50,714
—
62,476
$
93,210
$
126,881
$
345,457
$
337,446
$
0.33
$
0.28
$
1.21
$
0.99
—
0.18
—
0.22
$
0.33
$
0.46
$
1.21
$
1.21
$
0.31
$
0.27
$
1.16
$
0.95
—
0.18
—
0.22
$
0.31
$
0.45
$
1.16
$
1.17
Table of Contents
Nine Months Ended
September 30,
2005
2004
$
345,457
$
337,446
423,734
296,776
21,695
(7,734
)
28,633
5,354
18,139
5,527
—
(82,538
)
(102,424
)
(65,876
)
67,397
41,500
59,822
16,924
85,011
22,943
(10,164
)
(23,009
)
(1,396
)
(1,162
)
(49,316
)
56,472
(9,243
)
(5,880
)
(67,547
)
(17,872
)
(11,630
)
10,753
798,168
589,624
(4,427,085
)
—
(428,288
)
(526,483
)
—
345,730
20,000
—
7,660
14,996
(177,000
)
(9,225
)
(24,079
)
(13,653
)
(31,558
)
(13,304
)
(5,060,350
)
(201,939
)
1,135,000
(1,458,989
)
3,500,000
—
880,156
1,528,957
(1,408,992
)
(52,149
)
(50,171
)
(13,209
)
132,548
89,821
(84,966
)
(348,895
)
(11,079
)
(2,808
)
4,092,496
(257,272
)
(169,686
)
130,413
435,128
279,606
$
265,442
$
410,019
$
399,943
$
267,517
85,889
98,046
Table of Contents
Table of Contents
$
4,831,944
2,849,225
111,127
7,792,296
(519,685
)
$
7,272,611
Table of Contents
$
414,207
7,181,521
1,230,430
245,940
283,930
(598,999
)
(1,484,418
)
$
7,272,611
Three Months
Nine Months
For the periods ended September 30,
2005
2004
2005
2004
(In thousands, except per share amounts)
$
1,808,243
$
1,701,877
$
5,630,993
$
5,201,121
339,999
328,213
1,173,394
1,117,688
93,210
83,241
367,287
341,921
93,210
133,955
367,287
404,397
$
0.33
$
0.30
$
1.29
$
1.22
0.33
0.49
1.29
1.44
$
0.31
$
0.29
$
1.24
$
1.18
0.31
0.47
1.24
1.40
September 30,
December 31,
2005
2004
(In thousands)
$
1,230,430
$
—
76,342
76,342
7,415
7,415
1,314,187
83,757
102,556
115,056
251,754
17,554
354,310
132,610
26,581
16,968
$
1,695,078
$
233,335
Table of Contents
September 30,
December 31,
2005
2004
(In thousands)
$
450,621
$
405,322
241,031
—
185,144
3,002
26,242
—
8,814
9,633
—
424,683
$
911,852
$
842,640
Three Months
Nine Months
For the periods ended September 30,
2005
2004
2005
2004
(In thousands)
$
49,006
$
31,476
$
114,936
$
85,190
1,430
—
(977
)
—
(4,344
)
(6,419
)
(11,535
)
(19,314
)
$
46,092
$
25,057
$
102,424
$
65,876
Table of Contents
September 30,
December 31,
2005
2004
(In thousands)
$
4,685,000
$
50,000
—
300,087
—
176,096
200,893
—
239,091
235,511
707,909
706,968
191,976
189,115
533,228
—
171,375
168,908
214,377
—
—
199,095
228,653
—
1,055,546
1,056,453
326,787
—
822,582
822,214
400,000
400,000
133,771
—
550,000
550,000
156,128
—
522,547
522,301
880,115
—
82,497
81,919
8,472
—
155,976
—
4,265
—
188
195
12,271,376
5,458,862
(14
)
(14
)
$
12,271,362
$
5,458,848
Table of Contents
Three Months
Nine Months
For the periods ended September 30,
2005
2004
2005
2004
(In thousands)
286,752
275,572
284,938
279,867
12,133
8,948
11,815
9,366
298,885
284,520
296,753
289,233
Three Months
Nine Months
For the periods ended September 30,
2005
2004
2005
2004
(In thousands)
$
93,210
$
126,881
$
345,457
$
337,446
(270
)
16
(1,422
)
(5,097
)
—
(6,141
)
—
(6,141
)
377
416
1,382
2,032
$
93,317
$
121,172
$
345,417
$
328,240
Table of Contents
Weighted
Average
Shares
Exercise
Nine months ended September 30, 2005
(000’s)
Price
30,729
$
14.15
14,444
35.22
(9,151
)
14.49
(567
)
21.35
35,455
22.53
9,949
14.19
Three Months
Nine Months
For the periods ended September 30,
2005
2004
2005
2004
(In thousands, except per share amounts)
$
93,210
$
126,881
$
345,457
$
337,446
(15,017
)
(5,445
)
(31,367
)
(17,364
)
$
78,193
$
121,436
$
314,090
$
320,082
$
0.33
$
0.46
$
1.21
$
1.21
(0.06
)
(0.02
)
(0.11
)
(0.07
)
$
0.27
$
0.44
$
1.10
$
1.14
$
0.31
$
0.45
$
1.16
$
1.17
(0.05
)
(0.02
)
(0.10
)
(0.06
)
$
0.26
$
0.43
$
1.06
$
1.11
Table of Contents
Table of Contents
Three Months
Nine Months
For the periods ended September 30,
2005
2004
2005
2004
(In thousands)
$
20,575
$
473
$
20,575
$
473
1,304
681
5,569
4,600
758
523
2,489
281
$
22,637
$
1,677
$
28,633
$
5,354
Table of Contents
As of September 30, 2005
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
76,926
$
704,279
$
77,460
$
—
$
858,665
7,506
16,305,442
95,293
(11,972
)
16,396,269
14,226,055
170,984
—
(14,397,039
)
—
127,902
885,083
241,032
(342,165
)
911,852
90,165
1,978,383
114,629
—
2,183,177
$
14,528,554
$
20,044,171
$
528,414
$
(14,751,176
)
$
20,349,963
$
240,024
$
1,247,543
$
43,911
$
(262,983
)
$
1,268,495
(1,958,758
)
2,016,854
(58,096
)
—
—
3,376,735
—
—
—
3,376,735
9,623,699
2,597,735
49,928
—
12,271,362
1,677
186,375
142
—
188,194
3,245,177
13,995,664
492,529
(14,488,193
)
3,245,177
$
14,528,554
$
20,044,171
$
528,414
$
(14,751,176
)
$
20,349,963
As of December 31, 2004
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
48,477
$
541,537
$
230,188
$
—
$
820,202
8,266
8,820,342
97,506
(11,972
)
8,914,142
8,830,922
192,290
—
(9,023,212
)
—
127,902
1,056,903
—
(342,165
)
842,640
67,672
346,201
124,172
—
538,045
$
9,083,239
$
10,957,273
$
451,866
$
(9,377,349
)
$
11,115,029
$
132,279
$
726,581
$
69,117
$
—
$
927,977
(231,630
)
206,698
24,932
—
—
1,802,008
—
—
—
1,802,008
4,607,118
851,730
—
—
5,458,848
1,760
102,595
50,137
—
154,492
2,771,704
9,069,669
307,680
(9,377,349
)
2,771,704
$
9,083,239
$
10,957,273
$
451,866
$
(9,377,349
)
$
11,115,029
Table of Contents
For the Three Months Ended September 30, 2005
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
—
$
1,700,591
$
107,652
$
—
$
1,808,243
299,894
29,410
—
(329,304
)
—
—
948,585
57,464
—
1,006,049
—
275,357
13,371
—
288,728
1,950
30,162
—
—
32,112
—
6,147
—
—
6,147
—
11
—
—
11
—
22,637
—
—
22,637
603
154,476
6,487
—
161,566
2,553
1,437,375
77,322
—
1,517,250
—
35,185
13,821
—
49,006
297,341
327,811
44,151
(329,304
)
339,999
(155,948
)
(34,072
)
26
—
(189,994
)
5,207
(7,826
)
169
—
(2,450
)
146,600
285,913
44,346
(329,304
)
147,555
(53,390
)
—
(955
)
—
(54,345
)
$
93,210
$
285,913
$
43,391
$
(329,304
)
$
93,210
For the Three Months Ended September 30, 2004
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
—
$
931,561
$
104,835
$
—
$
1,036,396
255,726
25,141
—
(280,867
)
—
—
506,758
52,509
—
559,267
—
144,248
16,724
—
160,972
978
18,205
—
—
19,183
—
1,584
—
—
1,584
—
—
1,587
—
1,587
(55
)
1,732
—
—
1,677
261
93,175
7,809
—
101,245
1,184
765,702
78,629
—
845,515
—
31,476
—
—
31,476
254,542
222,476
26,206
(280,867
)
222,357
(82,042
)
(12,019
)
220
—
(93,841
)
801
(7,683
)
28
—
(6,854
)
173,301
202,774
26,454
(280,867
)
121,662
(44,568
)
—
(927
)
—
(45,495
)
128,733
202,774
25,527
(280,867
)
76,167
(1,852
)
—
52,566
—
50,714
$
126,881
$
202,774
$
78,093
$
(280,867
)
$
126,881
Table of Contents
For the Nine Months Ended September 30, 2005
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
—
$
4,397,280
$
331,054
$
—
$
4,728,334
927,484
110,378
—
(1,037,862
)
—
—
2,405,281
174,650
—
2,579,931
—
655,158
41,647
—
696,805
8,813
81,741
—
—
90,554
—
12,568
—
—
12,568
—
(59
)
—
—
(59
)
—
28,329
304
—
28,633
1,580
402,255
19,899
—
423,734
10,393
3,585,273
236,500
—
3,832,166
—
96,263
18,673
—
114,936
917,091
1,018,648
113,227
(1,037,862
)
1,011,104
(373,965
)
(79,061
)
1,232
—
(451,794
)
(14,293
)
(12,926
)
106
—
(27,113
)
528,833
926,661
114,565
(1,037,862
)
532,197
(183,376
)
—
(3,364
)
—
(186,740
)
$
345,457
$
926,661
$
111,201
$
(1,037,862
)
$
345,457
For the Nine Months Ended September 30, 2004
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
—
$
2,854,538
$
320,819
$
—
$
3,175,357
736,505
91,305
—
(827,810
)
—
—
1,542,159
157,595
—
1,699,754
—
414,018
44,655
—
458,673
5,736
47,643
—
—
53,379
129
3,455
—
—
3,584
—
4,314
1,587
—
5,901
(1,521
)
6,529
346
—
5,354
783
272,842
22,657
—
296,282
5,127
2,290,960
226,840
—
2,522,927
—
85,190
—
—
85,190
731,378
740,073
93,979
(827,810
)
737,620
(233,439
)
(40,004
)
(811
)
—
(274,254
)
220
(29,731
)
35
—
(29,476
)
498,159
670,338
93,203
(827,810
)
433,890
(157,408
)
—
(1,512
)
—
(158,920
)
340,751
670,338
91,691
(827,810
)
274,970
(3,305
)
7,362
58,419
—
62,476
$
337,446
$
677,700
$
150,110
$
(827,810
)
$
337,446
For the Nine Months Ended September 30, 2005
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
(329,028
)
$
1,016,886
$
110,310
$
—
$
798,168
(4,587,820
)
(415,471
)
(53,756
)
(3,303
)
(5,060,350
)
4,916,959
(590,806
)
(236,960
)
3,303
4,092,496
For the Nine Months Ended September 30, 2004
Guarantor
Non-Guarantor
Parent
Subsidiaries
Subsidiaries
Elimination
Consolidated
(In thousands)
$
(282,572
)
$
763,922
$
108,274
$
—
$
589,624
(5,993
)
(319,913
)
127,194
(3,227
)
(201,939
)
311,479
(519,769
)
(52,209
)
3,227
(257,272
)
Table of Contents
Bellagio, MGM Grand Las Vegas, Mandalay Bay, The
Mirage, Luxor, TI, New York-New York, Excalibur, Monte
Carlo, Circus Circus Las Vegas, Slots-A-Fun and
Boardwalk (Boardwalk will close in early 2006 in
preparation for Project CityCenter — see “Other Factors
Affecting Liquidity”).
The Primm Valley Resorts (Whiskey Pete’s, Buffalo
Bill’s and Primm Valley Resort) in Primm, Nevada;
Circus Circus Reno and Silver Legacy (50% owned) in
Reno, Nevada; Colorado Belle and Edgewater in Laughlin,
Nevada; Gold Strike and Nevada Landing in Jean, Nevada;
Railroad Pass in Henderson, Nevada; MGM Grand Detroit;
Beau Rivage in Biloxi, Mississippi and Gold Strike
Tunica in Tunica, Mississippi; Borgata (50% owned) in
Atlantic City, New Jersey; and Grand Victoria (50%
owned) in Elgin, Illinois.
Table of Contents
•
Gaming revenue indicators — table games drop and slot
handle (volume indicators); “win” or “hold” percentage, which
is not fully controllable by us. Our normal table games win
percentage is in the range of 18% to 22% of table games drop
and our normal slot win percentage is in the range of 6.5% to
7.5% of slot handle;
•
Hotel revenue indicators — hotel occupancy (volume
indicator); average daily rate (“ADR”, price indicator);
revenue per available room (“REVPAR”), a summary measure of
hotel results combining ADR and occupancy rate.
•
The addition of Mandalay’s resorts on April 25, 2005.
For the five months we owned the Mandalay resorts, net
revenue for those operations was $1.2 billion and operating
income was $293 million.
•
Strong hotel and gaming operating trends. We
experienced strong first quarter gaming volumes during key
casino events such as the Super Bowl, Chinese New Year and
March Madness, and second and third quarter trends continued
to be positive, even with the April opening of a major new
competitor on the Las Vegas Strip;
•
Continued year-over-year increases in room pricing and
increased visitation, driving hotel occupancy and increased
revenues at our restaurants, entertainment venues and other
resort amenities;
•
The December 2004 opening of the Spa Tower and related
amenities at Bellagio and the ongoing repositioning of MGM
Grand Las Vegas, highlighted by KÀ, the new Cirque du Soleil
show, and the West Wing and SKYLOFTS room enhancements;
•
The continued success of Borgata, of which we own 50%;
•
The closure of Beau Rivage in August 2005 as a result of
Hurricane Katrina. Beau Rivage earned operating income of $5
million and $41 million for the three and nine months ended
September 30, 2005, respectively, versus $18 million and $46
million for the respective 2004 periods.
Table of Contents
Three Months Ended September 30,
Nine Months Ended September 30,
Percentage
Percentage
2005
Change
2004
2005
Change
2004
(Dollars in thousands)
$
290,860
36
%
$
213,789
$
849,369
22
%
$
695,807
486,771
55
%
313,961
1,263,181
39
%
910,017
27,646
109
%
13,207
71,918
58
%
45,547
805,277
49
%
540,957
2,184,468
32
%
1,651,371
478,462
115
%
223,001
1,208,277
75
%
690,266
368,186
79
%
205,262
963,848
52
%
635,066
317,443
80
%
176,128
803,451
55
%
519,612
1,164,091
93
%
604,391
2,975,576
61
%
1,844,944
1,969,368
72
%
1,145,348
5,160,044
48
%
3,496,315
(161,125
)
48
%
(108,952
)
(431,710
)
35
%
(320,958
)
$
1,808,243
74
%
$
1,036,396
$
4,728,334
49
%
$
3,175,357
Table of Contents
Three Months
Nine Months
For the periods ended September 30,
2005
2004
2005
2004
(In thousands)
$
20,575
$
473
$
20,575
$
473
1,304
681
5,569
4,600
758
523
2,489
281
$
22,637
$
1,677
$
28,633
$
5,354
Table of Contents
•
Ongoing room enhancements — West Wing and SKYLOFTS — MGM Grand Las Vegas;
•
Other projects at MGM Grand Las Vegas, including a new poker room, new lounge,
relocated race and sports book, and new restaurants;
•
The remodeled theatre at The Mirage in preparation for a new show by Cirque du
Soleil based on the music of the Beatles, along with other projects at The Mirage;
•
A new golf course at Beau Rivage;
•
Project CityCenter;
•
Land for the permanent casino in Detroit.
Table of Contents
Table of Contents
Table of Contents
23
24
25
26
27
Table of Contents
Shares Purchased
Maximum
Total
Average
As Part of a
Shares Still
Shares
Price Per
Publicly-Announced
Available for
Purchased
Share
Program
Repurchase
—
$
—
—
20,000,000
(1)
2,000,000
42.48
2,000,000
18,000,000
(1)
—
—
—
18,000,000
(1)
2,000,000
42.48
2,000,000
(1)
The July 2004 repurchase program was announced in July 2004 for up to 20
million shares with no expiration.
Table of Contents
Supplemental Indenture, dated September 9, 2005, among MGM MIRAGE, certain
subsidiaries of MGM MIRAGE, and U.S. Bank National Association (incorporated by
reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K dated September
9, 2005 (the “September 9, 2005 8-K”)).
Registration Rights Agreement, dated September 9, 2005, among MGM MIRAGE, certain
subsidiaries of MGM MIRAGE, and certain initial purchasers parties thereto
(incorporated by reference to Exhibit 4.2 to the September 9, 2005 8-K).
Employment Agreement, dated September 16, 2005 between the Company and J.
Terrence Lanni (incorporated by reference to Exhibit 10.1 to the Company’s Current
Report on Form 8-K dated September 16, 2005 (the “September 16, 2005 8-K”)).
Employment Agreement, dated September 16, 2005 between the Company and Robert H.
Baldwin (incorporated by reference to Exhibit 10.2 to the September 16, 2005 8-K).
Employment Agreement, dated September 16, 2005 between the Company and John
Redmond (incorporated by reference to Exhibit 10.3 to the September 16, 2005 8-K).
Employment Agreement, dated September 16, 2005 between the Company and James J.
Murren (incorporated by reference to Exhibit 10.4 to the September 16, 2005 8-K).
Employment Agreement, dated September 16, 2005 between the Company and Gary N.
Jacobs (incorporated by reference to Exhibit 10.5 to the September 16, 2005 8-K).
Guarantee (MGM MIRAGE 9.75% Senior Subordinated Notes due 2007) dated as of April
25, 2005, by certain subsidiaries of MGM MIRAGE, in favor of The Bank of New York
N.A., as trustee for the benefit of the holders of the Notes pursuant to the Indenture
referred to therein.
Guarantee (MGM MIRAGE 8.5% Senior Notes due 2010), dated as of April 25, 2005, by
certain subsidiaries of MGM MIRAGE, in favor of The Bank of New York N.A., as
successor to U.S. Trust Company, National Association, for the benefit of the holders
of the Notes pursuant to the Indenture referred to therein.
Guarantee (Mirage Resorts, Incorporated 7.25% Senior Notes due 2006), dated as of
April 25, 2005, by certain subsidiaries of MGM MIRAGE, in favor of U.S. Bank National
Association, as trustee for the benefit of the holders of the Notes pursuant to the
Indenture referred to therein.
Guarantee (Mandalay Resort Group 7.625% Senior Subordinated Notes due 2013), dated
as of April 25, 2005, by certain subsidiaries of MGM MIRAGE, in favor of The Bank of
New York, as trustee for the benefit of the holders of the Notes pursuant to the
Indenture referred to therein.
Guarantee (Mandalay Resort Group 6.45% Senior Notes due 2006), dated as of April
25, 2005, by certain subsidiaries of MGM MIRAGE, in favor of Wells Fargo Bank
(Colorado), N.A., as successor in interest to First Interstate Bank of Nevada, N.A.,
as trustee for the benefit of the holders of the Notes pursuant to the Indenture
referred to therein.
Guarantee (MGM MIRAGE 8.375% Senior Subordinated Notes due 2011), dated as of
April 25, 2005, by certain subsidiaries of MGM MIRAGE, in favor of The Bank of New
York N.A., successor to the United States Trust Company of New York, as trustee for
the benefit of holders of the Notes pursuant to the Indenture referred to therein
(substantially in the form of Exhibit 10.6).
*
Management contract or compensatory plan or arrangement.
Table of Contents
10.12
10.13
10.14
10.15
10.16
10.17
10.18
10.19
10.20
10.21
Table of Contents
10.22
10.23
10.24
10.25
10.26
31.1
31.2
32.1
32.2
Table of Contents
28
29
MGM MIRAGE
Date: November 9, 2005
By:
/s/ J. TERRENCE LANNI
J. Terrence Lanni
Chairman and Chief Executive
Officer
(Principal Executive Officer)
Date: November 9, 2005
/s/ JAMES J. MURREN
James J. Murren
President, Chief Financial Officer and Treasurer
(Principal Financial and Accounting Officer)
Table of Contents
Exhibit
Number
Description
Guarantee (MGM MIRAGE 9.75% Senior Subordinated Notes due 2007) dated as of April 25,
2005, by certain subsidiaries of MGM MIRAGE, in favor of The Bank of New York N.A., as
trustee for the benefit of the holders of the Notes pursuant to the Indenture referred
to therein.
Guarantee (MGM MIRAGE 8.5% Senior Notes due 2010), dated as of April 25, 2005, by
certain subsidiaries of MGM MIRAGE, in favor of The Bank of New York N.A., as successor
to U.S. Trust Company, National Association, for the benefit of the holders of the Notes
pursuant to the Indenture referred to therein.
Guarantee (Mirage Resorts, Incorporated 7.25% Senior Notes due 2006), dated as of
April 25, 2005, by certain subsidiaries of MGM MIRAGE, in favor of U.S. Bank National
Association, as trustee for the benefit of the holders of the Notes pursuant to the
Indenture referred to therein.
Guarantee (Mandalay Resort Group 7.625% Senior Subordinated Notes due 2013), dated as
of April 25, 2005, by certain subsidiaries of MGM MIRAGE, in favor of The Bank of New
York, as trustee for the benefit of the holders of the Notes pursuant to the Indenture
referred to therein.
Guarantee (Mandalay Resort Group 6.45% Senior Notes due 2006), dated as of April 25,
2005, by certain subsidiaries of MGM MIRAGE, in favor of Wells Fargo Bank (Colorado),
N.A., as successor in interest to First Interstate Bank of Nevada, N.A., as trustee for
the benefit of the holders of the Notes pursuant to the Indenture referred to therein.
Certification of Chief Executive Officer of Periodic Report Pursuant to Rule 13a-14(a)
and Rule 15d-14(a).
Certification of Chief Financial Officer of Periodic Report Pursuant to Rule 13a-14(a)
and Rule 15d-14(a).
Certification of Chief Executive Officer Pursuant to 18 U.S.C. Section 1350.
Certification of Chief Financial Officer Pursuant to 18 U.S.C. Section 1350.
EXHIBIT 10.6
GUARANTEE
This GUARANTEE ("GUARANTEE"), dated as of April 25, 2005, is made by each of the Subsidiaries of MGM MIRAGE, a Delaware corporation (the "COMPANY"), (each a "GUARANTOR" and collectively, jointly and severally, as "GUARANTORS") which are set forth on Exhibit A attached hereto and incorporated herein by this reference, in favor of The Bank of New York N.A. (the "TRUSTEE"), as Trustee for the benefit of the holders of Notes (as defined below) authenticated and delivered by the Trustee and to the Trustee pursuant to the Indenture referred to below, with reference to the following facts:
RECITALS
A. The Company, previously entered into an Indenture dated as of May 31, 2000, with the Trustee and the Guarantors referred to therein (as amended, supplemented or otherwise modified, the "INDENTURE") pursuant to which the Company issued its 9.75% Subordinated Senior Notes due 2007 (the "NOTES").
B. Each of the undersigned is a Restricted Subsidiary of the Company and as such is required to guarantee the obligations of the Company under the Indenture and the Notes.
C. Each Guarantor expects to realize direct and indirect benefits as the result of the availability of the aforementioned credit facilities to the Company, as the result of financial and business support which will be provided to the Guarantors by the Company.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby jointly and severally represents, warrants, covenants, agrees and guaranties as follows:
1. DEFINITIONS.
This Guarantee is one of the Guarantees referred to in the Indenture. Terms defined in the Indenture and not otherwise defined in this Guarantee shall have the meanings given those terms in the Indenture when used herein and such definitions are incorporated herein as though set forth in full.
2. GUARANTEE.
(a) Each of the Guarantors, jointly and severally, hereby unconditionally guarantees or reaffirms a previous guarantee, to each holder of a Note authenticated and delivered by the Trustee and to the Trustee, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that: (i) the principal of and interest on the Notes will be paid in full when due, whether at the maturity or interest payment date, by acceleration, call for redemption, upon a purchase offer or otherwise, and interest on the overdue principal and interest, if any, of the Notes, if lawful, and all other
obligations of the Company to the holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any securities or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration, call for redemption, upon a purchase offer or otherwise (collectively, the "GUARANTEED OBLIGATIONS"). This Guarantee is a guarantee of payment and not of collection.
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same before failure to so pay becomes an Event of Default.
(b) Each Guarantor agrees that (i) its obligations with regard to this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, any amendments to the Indenture or the Notes (other than Article 15 of the Indenture), the absence of any action to enforce the same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) the recovery of any judgment against the Company, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor and (ii) this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or right to require the prior disposition of the assets of the Company to meet its obligations, protest, notice and all demands whatsoever. Without limiting the generality of the foregoing, each of the Guarantors hereby waives, to the extent permitted under Nev. Rev. Stat. 40.495, any rights arising out of Nev. Rev. Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any custodian, trustee, or similar official acting in relation to either the Company or any Guarantor, any amount paid by either the Company or any of the Guarantors to the Trustee or such holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Guarantors agrees that it will not be entitled to any right of subrogation in relation to the holders in respect of any obligations guaranteed hereby except as set forth in Section 6 hereof.
(d) Each of the Guarantors agrees that (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 5.2 of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 5.2 of the Indenture, those obligations (whether or not due and payable) will forthwith become due and payable by each of the Guarantors for the purpose of this Guarantee.
3. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its guarantee set forth in Section 2 of this Guarantee, each of the Guarantors agrees that a notation of such guarantee substantially in the form of the notation included in the Note annexed to the Indenture as Exhibit A shall be endorsed on each Note authenticated and delivered by the Trustee and that this Guarantee shall be executed on behalf of such Guarantor by a duly authorized officer.
Each of the Guarantors agrees that its guarantee set forth in Section 2 of this Guarantee shall remain in full force and effect and apply to all the Notes notwithstanding any failure to endorse on each Note a notation of such guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that office at the time the Trustee authenticates the Note on which a guarantee is endorsed, the guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of this Guarantee on behalf of the Guarantors.
4. LIMITATION OF GUARANTORS' LIABILITY.
Each Guarantor and by its acceptance hereof each holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to this Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal or state law. To effectuate the foregoing
intention, the holders and each Guarantor hereby irrevocably agree that the
obligations of each such Guarantor under this Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor (as defined in the
Indenture) in respect of the obligations of such other Guarantor (as defined in
the Indenture) under its Guarantee (as defined in the Indenture) or pursuant to
Section 5 of this Guarantee, result in the obligations of such Guarantor under
this Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law. This Section 4 is for the benefit of the creditors
of each Guarantor.
5. CONTRIBUTION.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under this Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the net worth of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Company's obligations with respect to the Notes or any other Guarantor's obligations with respect to this Guarantee.
6. RIGHTS UNDER THIS GUARANTEE.
(a) Each of the Guarantors waives notice of the issuance, sale and purchase of the Notes and notice from the Trustee or the holders from time to time of any of the Notes of their acceptance and reliance on this Guarantee.
(b) Notwithstanding any payment or payments made by the Guarantors by reason of this Guarantee, the Guarantors shall not be subrogated to any rights of the Trustee or any holder against the Company until all the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture. Any payment made by the Guarantors by reason of this Guarantee shall be in all respects subordinated to the full and complete payment or discharge under the Indenture of all obligations guaranteed hereby, and no payment by the Guarantors by reason of this Guarantee shall give rise to any claim of the Guarantors against the Trustee or any holder of the Notes. Unless and until the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture, neither the Guarantors nor any of them will assign or otherwise transfer any such claim against the Company to any other person.
(c) No set-off, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature (other than performance by the Guarantors of their obligations hereunder) which any Guarantor may have or assert against the Trustee or any holder of any Note shall be available hereunder to such Guarantor against the Trustee.
(d) Each Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred by the Trustee in enforcing or attempting to enforce this Guarantee or protecting the rights of the Trustee or the holders of the Notes, if any, in accordance with the Indenture.
7. PRIMARY OBLIGATIONS.
Each Guarantor agrees that it is directly liable to each holder hereunder, that the obligations of each Guarantor hereunder are independent of the obligations of the Company or any other guarantor, and that a separate action may be brought against each Guarantor, whether such action is brought against the Company or any other guarantor or whether the Company or any other guarantor is joined in such action. Each Guarantor agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by the Trustee or the holders of the Notes of whatever remedies they may have against the Company or any other guarantor. Each Guarantor agrees that any release which may be given by the Trustee or the holders of the Notes to the Company or any other guarantor shall not release such Guarantor. Each Guarantor consents and agrees that the Trustee shall be under no obligation to marshal any property or assets of the Company or any other guarantor in favor of such Guarantor, or against or in payment of any or all of the Guaranteed Obligations.
8. WAIVERS.
(a) Each Guarantor hereby waives any right to receive, or any claim or defense based on failure to receive: (i) notice of the amount of the Guaranteed Obligations; (ii) notice of any adverse change in the financial condition of the Company or of any other fact that might increase such Guarantor's risk hereunder; (iii) notice of a Default or Event of Default; and (iv) all other notices (except if such notice is specifically required to be given to such Guarantor under the Indenture) and demands to which such Guarantor might otherwise be entitled.
(b) Each Guarantor hereby waives the right by statute or otherwise to require the Trustee or the holders to institute suit against the Company (or against any other Person) or to exhaust any rights and remedies which the Trustee or the holders have or may have against the Company (or against any other Person). In this regard, each Guarantor agrees that it is bound to the payment of each and all of the Guaranteed Obligations, whether now existing or hereafter arising, as fully as if such Guaranteed Obligations were directly owing to the Trustee and the holders by such Guarantor. Each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of the Company or by reason of the cessation from any cause whatsoever of the liability of the Company in respect thereof.
(c) Each Guarantor hereby waives: (i) any claim or defense directly or indirectly arising from or caused by any election of remedies by the Trustee or holders of the Notes, whether or not such election of remedies directly or indirectly results in impairment or loss of rights or claims of such Guarantor against the Company or other Persons; and (ii) any defenses based on suretyship law or impairment of collateral.
9. RELEASES.
Each Guarantor consents and agrees that, without notice to or by such Guarantor and without affecting or impairing the obligations of such Guarantor hereunder, the Trustee may, by action or inaction, compromise or settle, extend the period of duration or the time for the payment, or discharge the performance of, or may refuse to, or otherwise not enforce, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Indenture or may grant other indulgences to the Company in respect thereof, or may, by action or inaction, release or substitute any other guarantor, if any, of the Guaranteed Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations, or any portion thereof.
10. NO ELECTION.
The Trustee shall have the right to seek recourse against each Guarantor to the fullest extent provided for herein and no election by the Trustee to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of Trustee's right to proceed in any other form of action or proceeding, or against other parties unless the Trustee has expressly waived such right in writing.
11. FINANCIAL CONDITION OF THE COMPANY.
Each Guarantor represents and warrants to the Trustee and holders that it is currently informed of the financial condition of the Company and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further represents and warrants to the Trustee and holders that it has read and understands the terms and conditions of the Indenture and this Guarantee. Each Guarantor hereby covenants that it will continue to keep itself informed of the Company's financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Guaranteed Obligations.
12. SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each Guarantor under this Guarantee are subordinated in right of payment to the prior payment in full in cash of all Senior Indebtedness (as defined in the Indenture) of each Guarantor on the same basis as the Notes are subordinated to Senior Indebtedness of the Company. For the purposes of the foregoing sentence, (a) the Trustee and the holders of the Notes shall have the right to receive and/or retain payments by any of the Guarantors only at such times as they may receive and/or retain payments in respect of Notes pursuant to the Indenture, including Article 16 thereof and (b) Section 16.2 of the Indenture shall apply as to each Guarantor and this Guarantee on the same basis as it applies to the Company and the Notes (except that, as to any Guarantor, the clauses in the last paragraph of Section 16.2 of the Indenture that read "the terms and conditions set forth in Article 10" and "comply with the conditions set forth in Article 10" shall be deemed to read, respectively, "the terms and conditions set forth in Section 15.11" and "comply with the conditions set forth in, or be released pursuant to the provisions set forth in, Section 15.11"). In the event that the Trustee receives any Subsidiary Guarantor payment at a time when the Trustee has actual knowledge that such payment is prohibited by the foregoing sentence, such Guarantor payment shall be paid over and delivered to the holders of the Senior Indebtedness of such Guarantor remaining unpaid, to the extent necessary to pay in full all such Senior Indebtedness. In the event that any holder of a Note receives any Guarantor payment at a time when such payment is prohibited by Section 15.12 of the Indenture, such Guarantor payment shall be paid over and delivered to the holders of the Senior Indebtedness of such Guarantor remaining unpaid, to the extent necessary to pay in full all such Senior Indebtedness.
13. BENEFITS OF THE INDENTURE.
The provisions of Article 15 of the Indenture applicable to Guarantors (as defined therein) shall be binding upon, and shall inure to the benefit of, each Guarantor hereunder.
14. GOVERNING LAW.
This Guarantee shall be deemed to be a contract made and to be performed entirely in the State of Nevada, and for all purposes shall be governed by and construed in accordance with the internal laws of said State without regard to the conflicts of law rules of said State.
15. NON-INVOLVEMENT OF KIRK KERKORIAN AND TRACINDA CORPORATION.
By accepting the benefits of this Guarantee, the Trustee and the holders of each Note acknowledge that neither Kirk Kerkorian nor Tracinda Corporation, individually or collectively, is a party to the Indenture or the Notes. In the event (i) there is any alleged breach or default by any Guarantor under this Guarantee or any such agreement, or (ii) any party hereto has any claim arising from or relating to this Guarantee or any such agreement, the Trustee and the holders of the Notes, nor any party claiming through them (to the extent permitted by applicable law), shall commence any proceedings or otherwise seek to impose any liability whatsoever against Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach, default or claim.
IN WITNESS WHEREOF, each Guarantor has executed this Guarantee by its duly authorized officer as of the date first written above.
By: /s/ BRYAN L. WRIGHT
----------------------------------------------------
Bryan L. Wright
Assistant Secretary of each of the Guarantors listed
on Exhibit A hereto
|
EXHIBIT A - GUARANTORS
1. AC Holding Corp., a Nevada corporation
2. AC Holding Corp. II, a Nevada corporation
3. The April Cook Companies, a Nevada corporation
4. Beau Rivage Distribution Corp., a Mississippi corporation
5. Beau Rivage Resorts, Inc. a Mississippi corporation
6. Bellagio, LLC, a Nevada limited liability company
7. Bellagio II, LLC, a Nevada limited liability company
8. Boardwalk Casino, Inc., a Nevada corporation
9. Bungalow, Inc., a Mississippi corporation
10. Circus Circus Mississippi, Inc., a Mississippi corporation
11. Circus Circus Casinos, Inc., a Nevada corporation
12. Colorado Belle Corp., a Nevada corporation
13. Country Star Las Vegas, LLC, a Nevada limited liability company
14. Destron, Inc., a Nevada corporation
15. Diamond Gold, Inc., a Nevada corporation
16. Edgewater Hotel Corporation, a Nevada corporation
17. EGARIM, Inc., an Alabama corporation
18. Galleon, Inc., a Nevada corporation
19. Gold Strike Aviation, Incorporated, a Nevada corporation
20. Gold Strike Fuel Company, a Nevada partnership
21. Gold Strike L.V., a Nevada partnership
22. Goldstrike Finance Company, Inc., a Nevada corporation
23. Goldstrike Investments, Incorporated, a Nevada corporation
24. Grand Laundry, Inc., a Nevada corporation
25. Jean Development Company, a Nevada partnership
26. Jean Development West, a Nevada partnership
27. Jean Fuel Company West, a Nevada partnership
28. Last Chance Investments, Incorporated, a Nevada corporation
29. LV Concrete Corp., a Nevada corporation
30. MAC, Corp., a New Jersey corporation
31. Mandalay Corp., a Nevada corporation
32. Mandalay Development, a Nevada corporation
33. Mandalay Marketing and Events, a Nevada corporation
34. Mandalay Place (f.k.a. New Dirt, Inc.), a Nevada corporation
35. Mandalay Resort Group, a Nevada corporation
36. Metropolitan Marketing, LLC, a Nevada limited liability company
37. MGM Grand Atlantic City, Inc., a New Jersey corporation
38. MGM Grand Condominiums, LLC, a Nevada limited liability company
39. MGM Grand Condominiums II, LLC, a Nevada limited liability company
40. MGM Grand Detroit, Inc., a Delaware corporation
41. Hotel, LLC, a Nevada limited liability company
42. MGM Grand New York, LLC, a Nevada limited liability company
43. MGM Grand Resorts, LLC, a Nevada limited liability company
44. MGM MIRAGE Advertising, Inc., a Nevada corporation
45. MGM MIRAGE Aircraft Holdings, LLC, a Nevada limited liability company
46. MGM MIRAGE Aviation Corp., a Nevada corporation
47. MGM MIRAGE Corporate Services, a Nevada corporation
48. MGM MIRAGE Design Group, a Nevada corporation
49. MGM MIRAGE Development, Inc., a Nevada corporation
50. MGM MIRAGE Entertainment and Sports, a Nevada corporation
51. MGM MIRAGE International, a Nevada corporation
52. MGM MIRAGE Manufacturing Corp., a Nevada corporation
53. MGM MIRAGE Operations, Inc., a Nevada corporation
54. MGM MIRAGE Retail, a Nevada corporation
55. MH, Inc., a Nevada corporation
56. M.I.R. Travel, a Nevada corporation
57. The Mirage Casino-Hotel, a Nevada corporation
58. Mirage Laundry Services Corp., a Nevada corporation
59. Mirage Leasing Corp., a Nevada corporation
60. Mirage Resorts, Incorporated, a Nevada corporation
61. MMNY Land Company, Inc., a New York corporation
62. MRG Vegas Portal, Inc., a Nevada corporation
63. MRGS Corp., a Nevada corporation
64. M.S.E. Investments, Incorporated, a Nevada corporation
65. New Castle Corp., a Nevada corporation
66. New PRMA Las Vegas, Inc., a Nevada corporation
67. New York-New York Hotel & Casino, LLC, a Nevada limited liability company
68. New York-New York Tower, LLC, a Nevada limited liability company
69. Oasis Development Company, Inc., a Nevada corporation
70. Plane Truth, LLC, a Nevada limited liability company
71. The Primadonna Company, LLC, a Nevada limited liability company
72. PRMA Land Development Company, a Nevada corporation
73. PRMA, LLC, a Nevada limited liability company
74. Project CC, LLC, a Nevada limited liability company
75. Railroad Pass Investment Group, a Nevada partnership
76. Ramparts International, a Nevada corporation
77. Ramparts, Inc., a Nevada corporation
78. Restaurant Ventures of Nevada, Inc., a Nevada corporation
79. Slots-A-Fun, Inc., a Nevada corporation
80. Treasure Island Corp., a Nevada corporation
81. Victoria Partners, a Nevada partnership
82. VidiAd, a Nevada corporation
EXHIBIT 10.7
GUARANTEE
This GUARANTEE ("GUARANTEE"), dated as of April 25, 2005, is made by each of the Subsidiaries of MGM MIRAGE, a Delaware corporation (the "COMPANY"), (each a "GUARANTOR" and collectively, jointly and severally, as "GUARANTORS") which are set forth on Exhibit A attached hereto and incorporated herein by this reference, in favor of The Bank of New York N.A. (the "TRUSTEE"), as successor to U.S. Trust Company, National Association (formerly known as U.S. Trust Company of California, N.A.), as Trustee for the benefit of the holders of Notes (as defined below) authenticated and delivered by the Trustee and to the Trustee pursuant to the Indenture referred to below, with reference to the following facts:
RECITALS
A. The Company, previously entered into an Indenture dated as of September 15, 2000, with the Trustee and the Guarantors referred to therein (as amended, supplemented or otherwise modified, the "INDENTURE") pursuant to which the Company issued its 8.50% Senior Notes due 2010 (the "NOTES").
B. Each of the undersigned is a Restricted Subsidiary of the Company and as such is required to guarantee the obligations of the Company under the Indenture and the Notes.
C. Each Guarantor expects to realize direct and indirect benefits as the result of the availability of the aforementioned credit facilities to the Company, as the result of financial and business support which will be provided to the Guarantors by the Company.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby jointly and severally represents, warrants, covenants, agrees and guaranties as follows:
1. DEFINITIONS.
This Guarantee is one of the Guarantees referred to in the Indenture. Terms defined in the Indenture and not otherwise defined in this Guarantee shall have the meanings given those terms in the Indenture when used herein and such definitions are incorporated herein as though set forth in full.
2. GUARANTEE.
(a) Each of the Guarantors, jointly and severally, hereby unconditionally guarantees or reaffirms a previous guarantee, to each holder of a Note authenticated and delivered by the Trustee and to the Trustee, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of the Company under the Indenture or the Notes, that: (i) the principal of and interest on the Notes will be paid in full when due, whether at the maturity or interest payment date, by acceleration, call for redemption, upon a purchase offer or otherwise, and
interest on the overdue principal and interest, if any, of the Notes, if lawful, and all other obligations of the Company to the holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any securities or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration, call for redemption, upon a purchase offer or otherwise (collectively, the "GUARANTEED OBLIGATIONS"). This Guarantee is a guarantee of payment and not of collection.
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same before failure to so pay becomes an Event of Default.
(b) Each Guarantor agrees that (i) its obligations with regard to this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, any amendments to the Indenture or the Notes (other than Article 15 of the Indenture), the absence of any action to enforce the same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) the recovery of any judgment against the Company, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor and (ii) this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or right to require the prior disposition of the assets of the Company to meet its obligations, protest, notice and all demands whatsoever. Without limiting the generality of the foregoing, each of the Guarantors hereby waives, to the extent permitted under Nev. Rev. Stat. 40.495, any rights arising out of Nev. Rev. Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any custodian, trustee, or similar official acting in relation to either the Company or any Guarantor, any amount paid by either the Company or any of the Guarantors to the Trustee or such holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Guarantors agrees that it will not be entitled to any right of subrogation in relation to the holders in respect of any obligations guaranteed hereby except as set forth in Section 6 hereof.
(d) Each of the Guarantors agrees that (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 5.2 of the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 5.2 of the Indenture, those obligations (whether or not due and payable) will forthwith become due and payable by each of the Guarantors for the purpose of this Guarantee.
3. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its guarantee set forth in Section 2 of this Guarantee, each of the Guarantors agrees that a notation of such guarantee substantially in the form of the notation included in the Note annexed to the Indenture as Exhibit A shall be endorsed on each Note authenticated and delivered by the Trustee and that this Guarantee shall be executed on behalf of such Guarantor by a duly authorized officer.
Each of the Guarantors agrees that its guarantee set forth in Section 2 of this Guarantee shall remain in full force and effect and apply to all the Notes notwithstanding any failure to endorse on each Note a notation of such guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that office at the time the Trustee authenticates the Note on which a guarantee is endorsed, the guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of this Guarantee on behalf of the Guarantors.
4. LIMITATION OF GUARANTORS' LIABILITY.
Each Guarantor and by its acceptance hereof each holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to this Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal or state law. To effectuate the foregoing
intention, the holders and each Guarantor hereby irrevocably agree that the
obligations of each such Guarantor under this Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor (as defined in the
Indenture) in respect of the obligations of such other Guarantor (as defined in
the Indenture) under its Guarantee (as defined in the Indenture) or pursuant to
Section 5 of this Guarantee, result in the obligations of such Guarantor under
this Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law. This Section 4 is for the benefit of the creditors
of each Guarantor.
5. CONTRIBUTION.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under this Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the net worth of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Company's obligations with respect to the Notes or any other Guarantor's obligations with respect to this Guarantee.
6. RIGHTS UNDER THIS GUARANTEE.
(a) Each of the Guarantors waives notice of the issuance, sale and purchase of the Notes and notice from the Trustee or the holders from time to time of any of the Notes of their acceptance and reliance on this Guarantee.
(b) Notwithstanding any payment or payments made by the Guarantors by reason of this Guarantee, the Guarantors shall not be subrogated to any rights of the Trustee or any holder against the Company until all the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture. Any payment made by the Guarantors by reason of this Guarantee shall be in all respects subordinated to the full and complete payment or discharge under the Indenture of all obligations guaranteed hereby, and no payment by the Guarantors by reason of this Guarantee shall give rise to any claim of the Guarantors against the Trustee or any holder of the Notes. Unless and until the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture, neither the Guarantors nor any of them will assign or otherwise transfer any such claim against the Company to any other person.
(c) No set-off, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature (other than performance by the Guarantors of their obligations hereunder) which any Guarantor may have or assert against the Trustee or any holder of any Note shall be available hereunder to such Guarantor against the Trustee.
(d) Each Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred by the Trustee in enforcing or attempting to enforce this Guarantee or protecting the rights of the Trustee or the holders of the Notes, if any, in accordance with the Indenture.
7. PRIMARY OBLIGATIONS.
Each Guarantor agrees that it is directly liable to each holder hereunder, that the obligations of each Guarantor hereunder are independent of the obligations of the Company or any other guarantor, and that a separate action may be brought against each Guarantor, whether such action is brought against the Company or any other guarantor or whether the Company or any other guarantor is joined in such action. Each Guarantor agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by the Trustee or the holders of the Notes of whatever remedies they may have against the Company or any other guarantor. Each Guarantor agrees that any release which may be given by the Trustee or the holders of the Notes to the Company or any other guarantor shall not release such Guarantor. Each Guarantor consents and agrees that the Trustee shall be under no obligation to marshal any property or assets of the Company or any other guarantor in favor of such Guarantor, or against or in payment of any or all of the Guaranteed Obligations.
8. WAIVERS.
(a) Each Guarantor hereby waives any right to receive, or any claim or defense based on failure to receive: (i) notice of the amount of the Guaranteed Obligations; (ii) notice of any adverse change in the financial condition of the Company or of any other fact that might increase such Guarantor's risk hereunder; (iii) notice of a Default or Event of Default; and (iv) all other notices (except if such notice is specifically required to be given to such Guarantor under the Indenture) and demands to which such Guarantor might otherwise be entitled.
(b) Each Guarantor hereby waives the right by statute or otherwise to require the Trustee or the holders to institute suit against the Company (or against any other Person) or to exhaust any rights and remedies which the Trustee or the holders have or may have against the Company (or against any other Person). In this regard, each Guarantor agrees that it is bound to the payment of each and all of the Guaranteed Obligations, whether now existing or hereafter arising, as fully as if such Guaranteed Obligations were directly owing to the Trustee and the holders by such Guarantor. Each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of the Company or by reason of the cessation from any cause whatsoever of the liability of the Company in respect thereof.
(c) Each Guarantor hereby waives: (i) any claim or defense directly or indirectly arising from or caused by any election of remedies by the Trustee or holders of the Notes, whether or not such election of remedies directly or indirectly results in impairment or loss of rights or claims of such Guarantor against the Company or other Persons; and (ii) any defenses based on suretyship law or impairment of collateral.
9. RELEASES.
Each Guarantor consents and agrees that, without notice to or by such Guarantor and without affecting or impairing the obligations of such Guarantor hereunder, the Trustee may, by action or inaction, compromise or settle, extend the period of duration or the time for the payment, or discharge the performance of, or may refuse to, or otherwise not enforce, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Indenture or may grant other indulgences to the Company in respect thereof, or may, by action or inaction, release or substitute any other guarantor, if any, of the Guaranteed Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations, or any portion thereof.
10. NO ELECTION.
The Trustee shall have the right to seek recourse against each Guarantor to the fullest extent provided for herein and no election by the Trustee to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of Trustee's right to proceed in any other form of action or proceeding, or against other parties unless the Trustee has expressly waived such right in writing.
11. FINANCIAL CONDITION OF THE COMPANY.
Each Guarantor represents and warrants to the Trustee and holders that it is currently informed of the financial condition of the Company and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further represents and warrants to the Trustee and holders that it has read and understands the terms and conditions of the Indenture and this Guarantee. Each Guarantor hereby covenants that it will continue to keep itself informed of the Company's financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Guaranteed Obligations.
12. BENEFITS OF THE INDENTURE.
The provisions of Article 15 of the Indenture applicable to Guarantors (as defined therein) shall be binding upon, and shall inure to the benefit of, each Guarantor hereunder.
13. GOVERNING LAW.
This Guarantee shall be deemed to be a contract made and to be performed entirely in the State of Nevada, and for all purposes shall be governed by and construed in accordance with the internal laws of said State without regard to the conflicts of law rules of said State.
14. NON-INVOLVEMENT OF KIRK KERKORIAN AND TRACINDA CORPORATION.
By accepting the benefits of this Guarantee, the Trustee and the holders of each Note acknowledge that neither Kirk Kerkorian nor Tracinda Corporation, individually or collectively, is a party to the Indenture or the Notes. In the event (i) there is any alleged breach or default by any Guarantor under this Guarantee or any such agreement, or (ii) any party hereto has any claim arising from or relating to this Guarantee or any such agreement, the Trustee and the holders of the Notes, nor any party claiming through them (to the extent permitted by applicable law), shall commence any proceedings or otherwise seek to impose any liability whatsoever against Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach, default or claim.
IN WITNESS WHEREOF, each Guarantor has executed this Guarantee by its duly authorized officer as of the date first written above.
By: /s/ BRYAN L. WRIGHT
----------------------------------------------------
Bryan L. Wright
Assistant Secretary of each of the Guarantors listed
on Exhibit A hereto
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EXHIBIT A - GUARANTORS
1. AC Holding Corp., a Nevada corporation
2. AC Holding Corp. II, a Nevada corporation
3. The April Cook Companies, a Nevada corporation
4. Beau Rivage Distribution Corp., a Mississippi corporation
5. Beau Rivage Resorts, Inc. a Mississippi corporation
6. Bellagio, LLC, a Nevada limited liability company
7. Bellagio II, LLC, a Nevada limited liability company
8. Boardwalk Casino, Inc., a Nevada corporation
9. Bungalow, Inc., a Mississippi corporation
10. Circus Circus Mississippi, Inc., a Mississippi corporation
11. Circus Circus Casinos, Inc., a Nevada corporation
12. Colorado Belle Corp., a Nevada corporation
13. Country Star Las Vegas, LLC, a Nevada limited liability company
14. Destron, Inc., a Nevada corporation
15. Diamond Gold, Inc., a Nevada corporation
16. Edgewater Hotel Corporation, a Nevada corporation
17. EGARIM, Inc., an Alabama corporation
18. Galleon, Inc., a Nevada corporation
19. Gold Strike Aviation, Incorporated, a Nevada corporation
20. Gold Strike Fuel Company, a Nevada partnership
21. Gold Strike L.V., a Nevada partnership
22. Goldstrike Finance Company, Inc., a Nevada corporation
23. Goldstrike Investments, Incorporated, a Nevada corporation
24. Grand Laundry, Inc., a Nevada corporation
25. Jean Development Company, a Nevada partnership
26. Jean Development West, a Nevada partnership
27. Jean Fuel Company West, a Nevada partnership
28. Last Chance Investments, Incorporated, a Nevada corporation
29. LV Concrete Corp., a Nevada corporation
30. MAC, Corp., a New Jersey corporation
31. Mandalay Corp., a Nevada corporation
32. Mandalay Development, a Nevada corporation
33. Mandalay Marketing and Events, a Nevada corporation
34. Mandalay Place (f.k.a. New Dirt, Inc.), a Nevada corporation
35. Mandalay Resort Group, a Nevada corporation
36. Metropolitan Marketing, LLC, a Nevada limited liability company
37. MGM Grand Atlantic City, Inc., a New Jersey corporation
38. MGM Grand Condominiums, LLC, a Nevada limited liability company
39. MGM Grand Condominiums II, LLC, a Nevada limited liability company
40. MGM Grand Detroit, Inc., a Delaware corporation
41. MGM Grand Hotel, LLC, a Nevada limited liability company
42. MGM Grand New York, LLC, a Nevada limited liability company
43. MGM Grand Resorts, LLC, a Nevada limited liability company
44. MGM MIRAGE Advertising, Inc., a Nevada corporation
45. MGM MIRAGE Aircraft Holdings, LLC, a Nevada limited liability company
46. MGM MIRAGE Aviation Corp., a Nevada corporation
47. MGM MIRAGE Corporate Services, a Nevada corporation
48. MGM MIRAGE Design Group, a Nevada corporation
49. MGM MIRAGE Development, Inc., a Nevada corporation
50. MGM MIRAGE Entertainment and Sports, a Nevada corporation
51. MGM MIRAGE International, a Nevada corporation
52. MGM MIRAGE Manufacturing Corp., a Nevada corporation
53. MGM MIRAGE Operations, Inc., a Nevada corporation
54. MGM MIRAGE Retail, a Nevada corporation
55. MH, Inc., a Nevada corporation
56. M.I.R. Travel, a Nevada corporation
57. The Mirage Casino-Hotel, a Nevada corporation
58. Mirage Laundry Services Corp., a Nevada corporation
59. Mirage Leasing Corp., a Nevada corporation
60. Mirage Resorts, Incorporated, a Nevada corporation
61. MMNY Land Company, Inc., a New York corporation
62. MRG Vegas Portal, Inc., a Nevada corporation
63. MRGS Corp., a Nevada corporation
64. M.S.E. Investments, Incorporated, a Nevada corporation
65. New Castle Corp., a Nevada corporation
66. New PRMA Las Vegas, Inc., a Nevada corporation
67. New York-New York Hotel & Casino, LLC, a Nevada limited liability company
68. New York-New York Tower, LLC, a Nevada limited liability company
69. Oasis Development Company, Inc., a Nevada corporation
70. Plane Truth, LLC, a Nevada limited liability company
71. The Primadonna Company, LLC, a Nevada limited liability company
72. PRMA Land Development Company, a Nevada corporation
73. PRMA, LLC, a Nevada limited liability company
74. Project CC, LLC, a Nevada limited liability company
75. Railroad Pass Investment Group, a Nevada partnership
76. Ramparts International, a Nevada corporation
77. Ramparts, Inc., a Nevada corporation
78. Restaurant Ventures of Nevada, Inc., a Nevada corporation
79. Slots-A-Fun, Inc., a Nevada corporation
80. Treasure Island Corp., a Nevada corporation
81. Victoria Partners, a Nevada partnership
82. VidiAd, a Nevada corporation
EXHIBIT 10.8
GUARANTEE
This GUARANTEE ("GUARANTEE"), dated as of April 25, 2005, is made by each of the Subsidiaries of MGM MIRAGE, a Delaware corporation (the "COMPANY"), (each a "GUARANTOR" and collectively, jointly and severally, as "GUARANTORS") which are set forth on Exhibit A attached hereto and incorporated herein by this reference, in favor of U.S. Bank National Association (the "TRUSTEE"), as Trustee for the benefit of the holders of Notes (as defined below) authenticated and delivered by the Trustee and to the Trustee pursuant to the Indenture referred to below, with reference to the following facts:
RECITALS
A. The Company, previously entered into an Indenture dated as of October 15, 1996, between Mirage Resorts, Incorporated, a Nevada corporation ("MIRAGE"), and the Trustee (as amended, supplemented or otherwise modified, the "INDENTURE") pursuant to which the Mirage 7.25% Notes due 2006 (the "NOTES") were issued.
B. Each of the undersigned is a Restricted Subsidiary of the Company and desires to guarantee the obligations of the Company under the Indenture and the Notes.
C. Each Guarantor expects to realize direct and indirect benefits as the result of the availability of the aforementioned credit facilities to the Company, as the result of financial and business support which will be provided to the Guarantors by the Company.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby jointly and severally represents, warrants, covenants, agrees and guaranties as follows:
1. GUARANTEE.
(a) Each of the Guarantors, jointly and severally, hereby unconditionally
guarantees or reaffirms a previous guarantee, to each holder of a Note
authenticated and delivered by the Trustee and to the Trustee, irrespective of
the validity and enforceability of the Indenture, the Notes or the obligations
of the Company under the Indenture or the Notes, that: (i) the principal of and
interest on the Notes will be paid in full when due, whether at the maturity or
interest payment date, by acceleration, call for redemption, upon a purchase
offer or otherwise, and interest on the overdue principal and interest, if any,
of the Notes, if lawful, and all other obligations of the Company to the holders
or the Trustee under the Indenture or the Notes will be promptly paid in full or
performed, all in accordance with the terms of the Indenture and the Notes; and
(ii) in case of any extension of time of payment or renewal of any securities or
any of such other obligations, they will be paid in full when due or performed
in accordance with the terms of the extension or renewal, whether at maturity,
by acceleration, call for redemption, upon a purchase offer or otherwise
(collectively, the "GUARANTEED OBLIGATIONS"). This Guarantee is a guarantee of
payment and not of collection.
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same before failure to so pay becomes an Event of Default.
(b) Each Guarantor agrees that (i) its obligations with regard to this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, any amendments to the Indenture or the Notes, the absence of any action to enforce the same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) the recovery of any judgment against the Company, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor and (ii) this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company or right to require the prior disposition of the assets of the Company to meet its obligations, protest, notice and all demands whatsoever. Without limiting the generality of the foregoing, each of the Guarantors hereby waives, to the extent permitted under Nev. Rev. Stat. 40.495, any rights arising out of Nev. Rev. Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise to return to either the Company or any Guarantor, or any custodian, trustee, or similar official acting in relation to either the Company or any Guarantor, any amount paid by either the Company or any of the Guarantors to the Trustee or such holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Guarantors agrees that it will not be entitled to any right of subrogation in relation to the holders in respect of any obligations guaranteed hereby except as set forth in Section 5 hereof.
(d) Each of the Guarantors agrees that (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Company of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those obligations as provided in the Indenture, those obligations (whether or not due and payable) will forthwith become due and payable by each of the Guarantors for the purpose of this Guarantee.
2. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its guarantee set forth in Section 1 of this Guarantee, each of the Guarantors agrees that a notation of such guarantee shall be endorsed on each Note authenticated and delivered by the Trustee and that this Guarantee shall be executed on behalf of such Guarantor by a duly authorized officer.
Each of the Guarantors agrees that its guarantee set forth in Section 1 of this Guarantee shall remain in full force and effect and apply to all the Notes notwithstanding any failure to endorse on each Note a notation of such guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that office at the time the Trustee authenticates the Note on which a guarantee is endorsed, the guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of this Guarantee on behalf of the Guarantors.
3. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and by its acceptance hereof each holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to this Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal or state law. To effectuate the foregoing
intention, the holders and each Guarantor hereby irrevocably agree that the
obligations of each such Guarantor under this Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor (as defined in the
Indenture) in respect of the obligations of such other Guarantor (as defined in
the Indenture) under its Guarantee (as defined in the Indenture) or pursuant to
Section 4 of this Guarantee, result in the obligations of such Guarantor under
this Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law. This Section 3 is for the benefit of the creditors
of each Guarantor.
4. CONTRIBUTION.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "FUNDING GUARANTOR") under this Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the net worth of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging the Company's obligations with respect to the Notes or any other Guarantor's obligations with respect to this Guarantee.
5. RIGHTS UNDER THIS GUARANTEE.
(a) Each of the Guarantors waives notice of the issuance, sale and purchase of the Notes and notice from the Trustee or the holders from time to time of any of the Notes of their acceptance and reliance on this Guarantee.
(b) Notwithstanding any payment or payments made by the Guarantors by reason of this Guarantee, the Guarantors shall not be subrogated to any rights of the Trustee or any holder against the Company until all the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture. Any payment made by the Guarantors by reason of this Guarantee shall be in all respects subordinated to the full and complete payment or discharge under the Indenture of all obligations guaranteed hereby, and no payment by the Guarantors by reason of this Guarantee shall give rise to any claim of the Guarantors against the Trustee or any holder of the Notes. Unless and until the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture, neither the Guarantors nor any of them will assign or otherwise transfer any such claim against the Company to any other person.
(c) No set-off, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature (other than performance by the Guarantors of their obligations hereunder) which any Guarantor may have or assert against the Trustee or any holder of any Note shall be available hereunder to such Guarantor against the Trustee.
(d) Each Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred by the Trustee in enforcing or attempting to enforce this Guarantee or protecting the rights of the Trustee or the holders of the Notes, if any, in accordance with the Indenture.
6. PRIMARY OBLIGATIONS.
Each Guarantor agrees that it is directly liable to each holder hereunder, that the obligations of each Guarantor hereunder are independent of the obligations of the Company or any other guarantor, and that a separate action may be brought against each Guarantor, whether such action is brought against the Company or any other guarantor or whether the Company or any other guarantor is joined in such action. Each Guarantor agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by the Trustee or the holders of the Notes of whatever remedies they may have against the Company or any other guarantor. Each Guarantor agrees that any release which may be given by the Trustee or the holders of the Notes to the Company or any other guarantor shall not release such Guarantor. Each Guarantor consents and agrees that the Trustee shall be under no obligation to marshal any property or assets of the Company or any other guarantor in favor of such Guarantor, or against or in payment of any or all of the Guaranteed Obligations.
7. WAIVERS.
(a) Each Guarantor hereby waives any right to receive, or any claim or defense based on failure to receive: (i) notice of the amount of the Guaranteed Obligations; (ii) notice of any adverse change in the financial condition of the Company or of any other fact that might increase such Guarantor's risk hereunder; (iii) notice of a Default or Event of Default; and (iv) all other notices (except if such notice is specifically required to be given to such Guarantor under the Indenture) and demands to which such Guarantor might otherwise be entitled.
(b) Each Guarantor hereby waives the right by statute or otherwise to require the Trustee or the holders to institute suit against the Company (or against any other Person) or to exhaust any rights and remedies which the Trustee or the holders have or may have against the Company (or against any other Person). In this regard, each Guarantor agrees that it is bound to the payment of each and all of the Guaranteed Obligations, whether now existing or hereafter arising, as fully as if such Guaranteed Obligations were directly owing to the Trustee and the holders by such Guarantor. Each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of the Company or by reason of the cessation from any cause whatsoever of the liability of the Company in respect thereof.
(c) Each Guarantor hereby waives: (i) any claim or defense directly or indirectly arising from or caused by any election of remedies by the Trustee or holders of the Notes, whether or not such election of remedies directly or indirectly results in impairment or loss of rights or claims of such Guarantor against the Company or other Persons; and (ii) any defenses based on suretyship law or impairment of collateral.
8. RELEASES.
Each Guarantor consents and agrees that, without notice to or by such Guarantor and without affecting or impairing the obligations of such Guarantor hereunder, the Trustee may, by action or inaction, compromise or settle, extend the period of duration or the time for the payment, or discharge the performance of, or may refuse to, or otherwise not enforce, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Indenture or may grant other indulgences to the Company in respect thereof, or may, by action or inaction, release or substitute any other guarantor, if any, of the Guaranteed Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations, or any portion thereof.
9. NO ELECTION.
The Trustee shall have the right to seek recourse against each Guarantor to the fullest extent provided for herein and no election by the Trustee to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of Trustee's right to proceed in any other form of action or proceeding, or against other parties unless the Trustee has expressly waived such right in writing.
10. FINANCIAL CONDITION OF THE COMPANY.
Each Guarantor represents and warrants to the Trustee and holders that it is currently informed of the financial condition of the Company and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further represents and warrants to the Trustee and holders that it has read and understands the terms and conditions of the Indenture and this Guarantee. Each Guarantor hereby covenants that it will continue to keep itself informed of the Company's financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Guaranteed Obligations.
11. RELEASE UPON CERTAIN EVENTS.
(a) In the event that any Guarantor ceases to guarantee the obligations of MGM MIRAGE under the Credit Facility, then such Guarantor will be released and relieved of any and all obligations under this Guarantee without further action by any of the Company or any of the Guarantors. The Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under this Guarantee. For the purposes of this Section 11, the "Credit Facility" shall mean the Fourth Amended and Restated Loan Agreement, as may be amended, restated or replaced from time to time, dated as of November 22, 2004, by and among MGM MIRAGE, MGM Grand Detroit, LLC, as a co-borrower, Bank of America, N.A., as the administrative agent, The Royal Bank of Scotland PLC, as the syndication agent, a joint lead
arranger, and a joint book manager, Bank of America Securities LLC as a joint lead arranger and a joint book manager, JP Morgan Securities, Inc., Citibank North America, Inc., and Deutsche Bank Securities Inc. as joint book managers, JP Morgan Chase Bank, Citigroup USA Inc., Deutsche Bank, Bank of Scotland PLC, Barclays Bank PLC, BNP Paribas, Commerzbank, Sumitomo Mitsui Banking Corporation and Wachovia Bank, N.A., as co-documentation agents, Societe Generale, as senior managing agent, Merrill Lynch Bank USA and U.S. Bank National Association, as managing agents, and the other lenders party thereto.
(b) In the event of a sale or other disposition of all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all to the capital stock of any Guarantor, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under this Guarantee.
(c) Any Guarantor not released from its obligations under this Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture.
12. GOVERNING LAW.
This Guarantee shall be deemed to be a contract made and to be performed entirely in the State of Nevada, and for all purposes shall be governed by and construed in accordance with internal laws of said State, without regard to the conflicts of law rules of said State.
13. NON-INVOLVEMENT OF KIRK KERKORIAN AND TRACINDA CORPORATION.
By accepting the benefits of this Guarantee, the Trustee and the holders of each Note acknowledge that neither Kirk Kerkorian nor Tracinda Corporation, individually or collectively, is a party to the Indenture or the Notes. In the event (i) there is any alleged breach or default by any Guarantor under this Guarantee or any such agreement, or (ii) any party hereto has any claim arising from or relating to this Guarantee or any such agreement, the Trustee and the holders of the Notes, nor any party claiming through them (to the extent permitted by applicable law), shall commence any proceedings or otherwise seek to impose any liability whatsoever against Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach, default or claim.
[Signature Page to Follow]
IN WITNESS WHEREOF, each Guarantor has executed this Guarantee by its duly authorized officer as of the date first written above.
/s/ BRYAN L. WRIGHT
-------------------------------------------------
By: Bryan L. Wright
Assistant Secretary of each of the Guarantors
listed on Exhibit A hereto
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EXHIBIT A - GUARANTORS
1. AC Holding Corp., a Nevada corporation
2. AC Holding Corp. II, a Nevada corporation
3. The April Cook Companies, a Nevada corporation
4. Beau Rivage Distribution Corp., a Mississippi corporation
5. Beau Rivage Resorts, Inc. a Mississippi corporation
6. Bellagio, LLC, a Nevada limited liability company
7. Bellagio II, LLC, a Nevada limited liability company
8. Boardwalk Casino, Inc., a Nevada corporation
9. Bungalow, Inc., a Mississippi corporation
10. Circus Circus Mississippi, Inc., a Mississippi corporation
11. Circus Circus Casinos, Inc., a Nevada corporation
12. Colorado Belle Corp., a Nevada corporation
13. Country Star Las Vegas, LLC, a Nevada limited liability company
14. Destron, Inc., a Nevada corporation
15. Diamond Gold, Inc., a Nevada corporation
16. Edgewater Hotel Corporation, a Nevada corporation
17. EGARIM, Inc., an Alabama corporation
18. Galleon, Inc., a Nevada corporation
19. Gold Strike Aviation, Incorporated, a Nevada corporation
20. Gold Strike Fuel Company, a Nevada partnership
21. Gold Strike L.V., a Nevada partnership
22. Goldstrike Finance Company, Inc., a Nevada corporation
23. Goldstrike Investments, Incorporated, a Nevada corporation
24. Grand Laundry, Inc., a Nevada corporation
25. Jean Development Company, a Nevada partnership
26. Jean Development West, a Nevada partnership
27. Jean Fuel Company West, a Nevada partnership
28. Last Chance Investments, Incorporated, a Nevada corporation
29. LV Concrete Corp., a Nevada corporation
30. MAC, Corp., a New Jersey corporation
31. Mandalay Corp., a Nevada corporation
32. Mandalay Development, a Nevada corporation
33. Mandalay Marketing and Events, a Nevada corporation
34. Mandalay Place (f.k.a. New Dirt, Inc.), a Nevada corporation
35. Mandalay Resort Group, a Nevada corporation
36. Metropolitan Marketing, LLC, a Nevada limited liability company
37. MGM Grand Atlantic City, Inc., a New Jersey corporation
38. MGM Grand Condominiums, LLC, a Nevada limited liability company
39. MGM Grand Condominiums II, LLC, a Nevada limited liability company
40. MGM Grand Detroit, Inc., a Delaware corporation
41. MGM Grand Hotel, LLC, a Nevada limited liability company
42. MGM Grand New York, LLC, a Nevada limited liability company
43. MGM Grand Resorts, LLC, a Nevada limited liability company
44. MGM MIRAGE Advertising, Inc., a Nevada corporation
45. MGM MIRAGE Aircraft Holdings, LLC, a Nevada limited liability company
46. MGM MIRAGE Aviation Corp., a Nevada corporation
47. MGM MIRAGE Corporate Services, a Nevada corporation
48. MGM MIRAGE Design Group, a Nevada corporation
49. MGM MIRAGE Development, Inc., a Nevada corporation
50. MGM MIRAGE Entertainment and Sports, a Nevada corporation
51. MGM MIRAGE International, a Nevada corporation
52. MGM MIRAGE Manufacturing Corp., a Nevada corporation
53. MGM MIRAGE Operations, Inc., a Nevada corporation
54. MGM MIRAGE Retail, a Nevada corporation
55. MH, Inc., a Nevada corporation
56. M.I.R. Travel, a Nevada corporation
57. The Mirage Casino-Hotel, a Nevada corporation
58. Mirage Laundry Services Corp., a Nevada corporation
59. Mirage Leasing Corp., a Nevada corporation
60. Mirage Resorts, Incorporated, a Nevada corporation
61. MMNY Land Company, Inc., a New York corporation
62. MRG Vegas Portal, Inc., a Nevada corporation
63. MRGS Corp., a Nevada corporation
64. M.S.E. Investments, Incorporated, a Nevada corporation
65. New Castle Corp., a Nevada corporation
66. New PRMA Las Vegas, Inc., a Nevada corporation
67. New York-New York Hotel & Casino, LLC, a Nevada limited liability company
68. New York-New York Tower, LLC, a Nevada limited liability company
69. Oasis Development Company, Inc., a Nevada corporation
70. Plane Truth, LLC, a Nevada limited liability company
71. The Primadonna Company, LLC, a Nevada limited liability company
72. PRMA Land Development Company, a Nevada corporation
73. PRMA, LLC, a Nevada limited liability company
74. Project CC, LLC, a Nevada limited liability company
75. Railroad Pass Investment Group, a Nevada partnership
76. Ramparts International, a Nevada corporation
77. Ramparts, Inc., a Nevada corporation
78. Restaurant Ventures of Nevada, Inc., a Nevada corporation
79. Slots-A-Fun, Inc., a Nevada corporation
80. Treasure Island Corp., a Nevada corporation
81. Victoria Partners, a Nevada partnership
82. VidiAd, a Nevada corporation
EXHIBIT 10.9
GUARANTEE
This GUARANTEE ("Guarantee"), dated as of April 25, 2005, is made by each of MGM MIRAGE and the undersigned Subsidiaries of MGM MIRAGE which are set forth on Exhibit A attached hereto and incorporated herein by this reference, (each a "Guarantor" and collectively, jointly and severally, as "Guarantors"), in favor of The Bank of New York (the "Trustee"), as Trustee for the benefit of the holders of Notes (as defined below) and to the Trustee pursuant to the Indenture referred to below, with reference to the following facts:
RECITALS
A. Pursuant to the Agreement and Plan of Merger, dated June 15, 2004 (the "Agreement"), among MGM MIRAGE, a Delaware corporation, Mandalay Resort Group, a Nevada corporation ("Mandalay") and MGM MIRAGE Acquisition Co. #61, a Nevada corporation and wholly owed subsidiary of MGM MIRAGE ("Merger Subsidiary").
B. Mandalay and its direct or indirect subsidiaries have become direct or indirect subsidiaries of MGM MIRAGE.
C. Prior to the merger, Mandalay entered into that certain Indenture dated as of February 1, 1996 and the Supplemental Indenture thereto dated as of the same date (as amended, supplemented or otherwise modified from time to time and collectively, the "Indenture"), with the Trustee pursuant to which Mandalay issued its 7 5/8% Senior Subordinated Debentures due 2013 (the "Notes").
D. Each Guarantor expects to realize direct and indirect benefits as the result of the availability of the Credit Facility (as defined) to Mandalay, as a result of financial and business support which will be provided to the Guarantors, and each Guarantor desires to guarantee Mandalay's obligations under such Indenture pursuant to the terms hereof.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby jointly and severally represents, warrants, covenants, agrees and guaranties as follows:
1. GUARANTEE.
(a) Each of the Guarantors, jointly and severally, hereby unconditionally guarantees to each holder of a Note authenticated and delivered by the Trustee and to the Trustee, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of Mandalay under the Indenture or the Notes, that: (i) the principal of and interest on the Notes will be paid in full when due, whether at the maturity or interest payment date, by acceleration, call for redemption, upon a purchase offer or otherwise, and interest on the overdue principal and interest, if any, of the Notes, if lawful, and all other obligations of Mandalay to the holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any securities or any of such other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at maturity, by acceleration, call for redemption, upon a purchase offer or otherwise (collectively, the "Guaranteed Obligations"). This Guarantee is a guarantee of payment and not of collection.
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same before failure to so pay becomes an Event of Default.
(b) Each Guarantor agrees that (i) its obligations with regard to this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, any amendments to the Indenture or the Notes, the absence of any action to enforce the same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) the recovery of any judgment against Mandalay, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor and (ii) this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of Mandalay, any right to require a proceeding first against Mandalay or right to require the prior disposition of the assets of Mandalay to meet its obligations, protest, notice and all demands whatsoever. Without limiting the generality of the foregoing, each of the Guarantors hereby waives, to the extent permitted under Nev. Rev. Stat. 40.495, any rights arising out of Nev. Rev. Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise to return to either Mandalay or any Guarantor, or any custodian, trustee, or similar official acting in relation to either Mandalay or any Guarantor, any amount paid by either Mandalay or any of the Guarantors to the Trustee or such holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Guarantors agrees that it will not be entitled to any right of subrogation in relation to the holders in respect of any obligations guaranteed hereby except as set forth in Section 5 hereof.
(d) Each of the Guarantors agrees that (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to Mandalay of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those obligations as provided in the Indenture, those obligations (whether or not due and payable) will forthwith become due and payable by each of the Guarantors for the purpose of this Guarantee.
2. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its guarantee set forth in Section 1 of this Guarantee, each of the Guarantors agrees that a notation of such guarantee substantially in the form of the notation included in the Note annexed to the Indenture as Exhibit A shall be endorsed on each Note authenticated and delivered by the Trustee and that this Guarantee shall be executed on behalf of such Guarantor by a duly authorized officer.
Each of the Guarantors agrees that its guarantee set forth in Section 1 of this Guarantee shall remain in full force and effect and apply to all the Notes notwithstanding any failure to endorse on each Note a notation of such guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that office at the time the Trustee authenticates the Note on which a guarantee is endorsed, the guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of this Guarantee on behalf of the Guarantors.
3. LIMITATION OF GUARANTOR'S LIABILITY.
Each Guarantor and by its acceptance hereof each holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to this Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal or state law. To effectuate the foregoing
intention, the holders and each Guarantor hereby irrevocably agree that the
obligations of each such Guarantor under this Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor (as defined in the
Indenture) in respect of the obligations of such other Guarantor (as defined in
the Indenture) under its Guarantee (as defined in the Indenture) or pursuant to
Section 4 of this Guarantee, result in the obligations of such Guarantor under
this Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law. This Section 3 is for the benefit of the creditors
of each Guarantor.
4. CONTRIBUTION.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under this Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the net worth of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging Mandalay's obligations with respect to the Notes or any other Guarantor's obligations with respect to this Guarantee.
5. RIGHTS UNDER THIS GUARANTEE.
(a) Each of the Guarantors waives notice of the issuance, sale and purchase of the Notes and notice from the Trustee or the holders from time to time of any of the Notes of their acceptance and reliance on this Guarantee.
(b) Notwithstanding any payment or payments made by the Guarantors by reason of this Guarantee, the Guarantors shall not be subrogated to any rights of the Trustee or any holder against Mandalay until all the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture. Any payment made by the Guarantors by reason of this Guarantee shall be in all respects subordinated to the full and complete payment or discharge under the Indenture of all obligations guaranteed hereby, and no payment by the Guarantors by reason of this Guarantee shall give rise to any claim of the Guarantors against the Trustee or any holder of the Notes. Unless and until the Notes shall have been paid or deemed to have been paid within the meaning of the
Indenture, neither the Guarantors nor any of them will assign or otherwise transfer any such claim against Mandalay to any other person.
(c) No set-off, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature (other than performance by the Guarantors of their obligations hereunder) which any Guarantor may have or assert against the Trustee or any holder of any Note shall be available hereunder to such Guarantor against the Trustee.
(d) Each Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred by the Trustee in enforcing or attempting to enforce this Guarantee or protecting the rights of the Trustee or the holders of the Notes, if any, in accordance with the Indenture.
6. PRIMARY OBLIGATIONS.
Each Guarantor agrees that it is directly liable to each holder hereunder, that the obligations of each Guarantor hereunder are independent of the obligations of Mandalay or any other Guarantor, and that a separate action may be brought against each Guarantor, whether such action is brought against Mandalay or any other guarantor or whether Mandalay or any other guarantor is joined in such action. Each Guarantor agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by the Trustee or the holders of the Notes of whatever remedies they may have against Mandalay or any other guarantor. Each Guarantor agrees that any release which may be given by the Trustee or the holders of the Notes to Mandalay or any other guarantor shall not release such Guarantor. Each Guarantor consents and agrees that the Trustee shall be under no obligation to marshal any property or assets of the Company or any other guarantor in favor of such Guarantor, or against or in payment of any or all of the Guaranteed Obligations.
7. WAIVERS.
(a) Each Guarantor hereby waives any right to receive, or any claim or defense based on failure to receive: (i) notice of the amount of the Guaranteed Obligations; (ii) notice of any adverse change in the financial condition of Mandalay or of any other fact that might increase such Guarantor's risk hereunder; (iii) notice of a Default or Event of Default; and (iv) all other notices (except if such notice is specifically required to be given to Mandalay under the Indenture) and demands to which such Guarantor might otherwise be entitled.
(b) Each Guarantor hereby waives the right by statute or otherwise to require the Trustee or the holders to institute suit against Mandalay (or against any other Person) or to exhaust any rights and remedies which the Trustee or the holders have or may have against Mandalay (or against any other Person). In this regard, each Guarantor agrees that it is bound to the payment of each and all of the Guaranteed Obligations, whether now existing or hereafter arising, as fully as if such Guaranteed Obligations were directly owing to the Trustee and the holders by such Guarantor. Each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of Mandalay or by reason of the cessation from any cause whatsoever of the liability of Mandalay in respect thereof.
(c) Each Guarantor hereby waives: (i) any claim or defense directly or indirectly arising from or caused by any election of remedies by the Trustee or holders of the Notes, whether or not such election of remedies directly or indirectly results in impairment or loss of rights or claims of such Guarantor against Mandalay or other Persons; and (ii) any defenses based on suretyship law or impairment of collateral.
8. RELEASES.
Each Guarantor consents and agrees that, without notice to or by such Guarantor and without affecting or impairing the obligations of such Guarantor hereunder, the Trustee may, by action or inaction, compromise or settle, extend the period of duration or the time for the payment, or discharge the performance of, or may refuse to, or otherwise not enforce, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Indenture or may grant other indulgences to Mandalay in respect thereof, or may, by action or inaction, release or substitute any other guarantor, if any, of the Guaranteed Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations, or any portion thereof.
9. NO ELECTION.
The Trustee shall have the right to seek recourse against each Guarantor to the fullest extent provided for herein and no election by the Trustee to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of Trustee's right to proceed in any other form of action or proceeding, or against other parties unless the Trustee has expressly waived such right in writing.
10. FINANCIAL CONDITION OF THE MANDALAY.
Each Guarantor represents and warrants to the Trustee and holders that it is currently informed of the financial condition of Mandalay and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further represents and warrants to the Trustee and holders that it has read and understands the terms and conditions of the Indenture and this Guarantee. Each Guarantor hereby covenants that it will continue to keep itself informed of Mandalay's financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Guaranteed Obligations.
11. SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each Guarantor under this Guarantee are subordinated in right of payment to the prior payment in full in cash of all Senior Debt (as defined in the Indenture) of each Guarantor on the same basis as the Notes are subordinated to Senior Debt of Mandalay. For the purposes of the foregoing sentence, the Trustee and the holders of the Notes shall have the right to receive and/or retain payments by any of the Guarantors only at such times as they may receive and/or retain payments in respect of Notes pursuant to the Indenture, including Article 3 thereof. In the event that the Trustee receives any Subsidiary Guarantor payment at a time when the Trustee has actual knowledge that such payment is prohibited by the foregoing sentence, such Guarantor payment shall be paid over and delivered to the holders of the Senior Debt of such Guarantor
remaining unpaid, to the extent necessary to pay in full all such Senior Debt. In the event that any holder of a Note receives any Guarantor payment at a time when such payment is prohibited by the Indenture, such Guarantor payment shall be paid over and delivered to the holders of the Senior Debt of such Guarantor remaining unpaid, to the extent necessary to pay in full all such Senior Debt.
12. RELEASE UPON CERTAIN EVENTS.
(a) In the event that any Guarantor ceases to guarantee the obligations of MGM MIRAGE under the Credit Facility, then such Guarantor will be released and relieved of any and all obligations under this Guarantee without further action by any of Mandalay or any of the Guarantors. The Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under this Guarantee. For the purposes of this Section 11, the "Credit Facility" shall mean the Fourth Amended and Restated Loan Agreement, as may be amended, restated or replaced from time to time, dated as of November 22, 2004, by and among MGM MIRAGE, MGM Grand Detroit, LLC, as co-borrower, Bank of America, N.A., as the administrative agent, The Royal Bank of Scotland PLC, as the syndication agent, a joint lead arranger, and a joint book manager, Bank of America Securities LLC as a joint lead arranger and a joint book manager, JP Morgan Securities, Inc., Citibank North America, Inc., and Deutsche Bank Securities Inc. as joint book managers, JP Morgan Chase Bank, Citigroup USA Inc., Deutsche Bank, Bank of Scotland PLC, Barclays Bank PLC, BNP Paribas, Commerzbank, Sumitomo Mitsui Banking Corporation and Wachovia Bank, N.A., as co-documentation agents, Societe Generale, as senior managing agent, Merrill Lynch Bank USA and U.S. Bank National Association, as managing agents, and the other lenders party thereto.
(b) In the event of a sale or other disposition of all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all to the capital stock of any Guarantor, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under this Guarantee.
(c) Any Guarantor not released from its obligations under this Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture.
13. GOVERNING LAW.
This Guarantee shall be deemed to be a contract made and to be performed entirely in the State of Nevada, and for all purposes shall be governed by and construed in accordance with the internal laws of said State without regard to the conflicts of law rules of said State.
14. NON-INVOLVEMENT OF KIRK KERKORIAN AND TRACINDA CORPORATION.
By accepting the benefits of this Guarantee, the Trustee and the holders of each Note acknowledge that neither Kirk Kerkorian nor Tracinda Corporation, individually or collectively, is a party to the Indenture or the Notes. In the event (i) there is any alleged breach or default by any Guarantor under this Guarantee or any such agreement, or (ii) any party hereto has any claim arising from or relating to this Guarantee or any such agreement, the Trustee and the holders of the Notes, nor any party claiming through them (to the extent permitted by applicable law), shall commence any proceedings or otherwise seek to impose any liability whatsoever against Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach, default or claim.
[Signature Page to Follow]
IN WITNESS WHEREOF, each Guarantor has executed this Guarantee by its duly authorized officer as of the date first written above.
By: /s/ BRYAN L. WRIGHT
-------------------------------------------------------
Bryan L. Wright
Assistant Secretary of each of the Guarantors listed on
Exhibit A hereto
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EXHIBIT A - GUARANTORS
1. AC Holding Corp., a Nevada corporation
2. AC Holding Corp. II, a Nevada corporation
3. The April Cook Companies, a Nevada corporation
4. Beau Rivage Distribution Corp., a Mississippi corporation
5. Beau Rivage Resorts, Inc. a Mississippi corporation
6. Bellagio, LLC, a Nevada limited liability company
7. Bellagio II, LLC, a Nevada limited liability company
8. Boardwalk Casino, Inc., a Nevada corporation
9. Bungalow, Inc., a Mississippi corporation
10. Circus Circus Mississippi, Inc., a Mississippi corporation
11. Circus Circus Casinos, Inc., a Nevada corporation
12. Colorado Belle Corp., a Nevada corporation
13. Country Star Las Vegas, LLC, a Nevada limited liability company
14. Destron, Inc., a Nevada corporation
15. Diamond Gold, Inc., a Nevada corporation
16. Edgewater Hotel Corporation, a Nevada corporation
17. EGARIM, Inc., an Alabama corporation
18. Galleon, Inc., a Nevada corporation
19. Gold Strike Aviation, Incorporated, a Nevada corporation
20. Gold Strike Fuel Company, a Nevada partnership
21. Gold Strike L.V., a Nevada partnership
22. Goldstrike Finance Company, Inc., a Nevada corporation
23. Goldstrike Investments, Incorporated, a Nevada corporation
24. Grand Laundry, Inc., a Nevada corporation
25. Jean Development Company, a Nevada partnership
26. Jean Development West, a Nevada partnership
27. Jean Fuel Company West, a Nevada partnership
28. Last Chance Investments, Incorporated, a Nevada corporation
29. LV Concrete Corp., a Nevada corporation
30. MAC, Corp., a New Jersey corporation
31. Mandalay Corp., a Nevada corporation
32. Mandalay Development, a Nevada corporation
33. Mandalay Marketing and Events, a Nevada corporation
34. Mandalay Place (f.k.a. New Dirt, Inc.), a Nevada corporation
35. Mandalay Resort Group, a Nevada corporation
36. Metropolitan Marketing, LLC, a Nevada limited liability company
37. MGM Grand Atlantic City, Inc., a New Jersey corporation
38. MGM Grand Condominiums, LLC, a Nevada limited liability company
39. MGM Grand Condominiums II, LLC, a Nevada limited liability company
40. MGM Grand Detroit, Inc., a Delaware corporation
41. MGM Grand Hotel, LLC, a Nevada limited liability company
42. MGM Grand New York, LLC, a Nevada limited liability company
43. MGM Grand Resorts, LLC, a Nevada limited liability company
44. MGM MIRAGE Advertising, Inc., a Nevada corporation
45. MGM MIRAGE Aircraft Holdings, LLC, a Nevada limited liability company
46. MGM MIRAGE Aviation Corp., a Nevada corporation
47. MGM MIRAGE Corporate Services, a Nevada corporation
48. MGM MIRAGE Design Group, a Nevada corporation
49. MGM MIRAGE Development, Inc., a Nevada corporation
50. MGM MIRAGE Entertainment and Sports, a Nevada corporation
51. MGM MIRAGE International, a Nevada corporation
52. MGM MIRAGE Manufacturing Corp., a Nevada corporation
53. MGM MIRAGE Operations, Inc., a Nevada corporation
54. MGM MIRAGE Retail, a Nevada corporation
55. MH, Inc., a Nevada corporation
56. M.I.R. Travel, a Nevada corporation
57. The Mirage Casino-Hotel, a Nevada corporation
58. Mirage Laundry Services Corp., a Nevada corporation
59. Mirage Leasing Corp., a Nevada corporation
60. Mirage Resorts, Incorporated, a Nevada corporation
61. MMNY Land Company, Inc., a New York corporation
62. MRG Vegas Portal, Inc., a Nevada corporation
63. MRGS Corp., a Nevada corporation
64. M.S.E. Investments, Incorporated, a Nevada corporation
65. New Castle Corp., a Nevada corporation
66. New PRMA Las Vegas, Inc., a Nevada corporation
67. New York-New York Hotel & Casino, LLC, a Nevada limited liability company
68. New York-New York Tower, LLC, a Nevada limited liability company
69. Oasis Development Company, Inc., a Nevada corporation
70. Plane Truth, LLC, a Nevada limited liability company
71. The Primadonna Company, LLC, a Nevada limited liability company
72. PRMA Land Development Company, a Nevada corporation
73. PRMA, LLC, a Nevada limited liability company
74. Project CC, LLC, a Nevada limited liability company
75. Railroad Pass Investment Group, a Nevada partnership
76. Ramparts International, a Nevada corporation
77. Ramparts, Inc., a Nevada corporation
78. Restaurant Ventures of Nevada, Inc., a Nevada corporation
79. Slots-A-Fun, Inc., a Nevada corporation
80. Treasure Island Corp., a Nevada corporation
81. Victoria Partners, a Nevada partnership
82. VidiAd, a Nevada corporation
EXHIBIT 10.10
GUARANTEE
This GUARANTEE ("Guarantee"), dated as of April 25, 2005, is made by each of MGM MIRAGE and the undersigned Subsidiaries of MGM MIRAGE (each a "Guarantor" and collectively, jointly and severally, as "Guarantors") in favor of Wells Fargo Bank (Colorado), N.A., as successor in interest to First Interstate Bank of Nevada, N.A. (the "Trustee"), as Trustee for the benefit of the holders of Notes (as defined below) and to the Trustee pursuant to the Indenture referred to below, with reference to the following facts:
RECITALS
A. Pursuant to the Agreement and Plan of Merger, dated June 15, 2004 (the "Agreement"), among MGM MIRAGE, a Delaware corporation, Mandalay Resort Group, a Nevada corporation ("Mandalay") and MGM MIRAGE Acquisition Co. #61, a Nevada corporation and wholly owed subsidiary of MGM MIRAGE ("Merger Subsidiary").
B. Mandalay and its direct or indirect subsidiaries have become direct or indirect subsidiaries of MGM MIRAGE.
C. Prior to the merger, Mandalay entered into that certain Indenture dated as of February 1, 1996 and the Supplemental Indenture thereto dated as of the same date (as amended, supplemented or otherwise modified from time to time and collectively, the "Indenture"), with the Trustee pursuant to which Mandalay issued its 6.45% Senior Notes due 2006 (the "Notes").
D. Each Guarantor expects to realize direct and indirect benefits as the result of the availability of the Credit Facility (as defined) to Mandalay, as a result of financial and business support which will be provided to the Guarantors, and each Guarantor desires to guarantee Mandalay's obligations under such Indenture pursuant to the terms hereof.
AGREEMENT
NOW, THEREFORE, in consideration of good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each Guarantor hereby jointly and severally represents, warrants, covenants, agrees and guaranties as follows:
1. GUARANTEE.
(a) Each of the Guarantors, jointly and severally, hereby unconditionally guarantees to each holder of a Note authenticated and delivered by the Trustee and to the Trustee, irrespective of the validity and enforceability of the Indenture, the Notes or the obligations of Mandalay under the Indenture or the Notes, that: (i) the principal of and interest on the Notes will be paid in full when due, whether at the maturity or interest payment date, by acceleration, call for redemption, upon a purchase offer or otherwise, and interest on the overdue principal and interest, if any, of the Notes, if lawful, and all other obligations of Mandalay to the holders or the Trustee under the Indenture or the Notes will be promptly paid in full or performed, all in accordance with the terms of the Indenture and the Notes; and (ii) in case of any extension of time of payment or renewal of any securities or any of such other obligations, they will be paid in full when due or performed in accordance with the terms of the extension or renewal, whether at maturity, by acceleration, call for
redemption, upon a purchase offer or otherwise (collectively, the "Guaranteed Obligations"). This Guarantee is a guarantee of payment and not of collection.
Failing payment when due of any amount so guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same before failure to so pay becomes an Event of Default.
(b) Each Guarantor agrees that (i) its obligations with regard to this Guarantee shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or the Indenture, any amendments to the Indenture or the Notes, the absence of any action to enforce the same, any delays in obtaining or realizing upon (or failures to obtain or realize upon) the recovery of any judgment against Mandalay, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a guarantor and (ii) this Guarantee will not be discharged except by complete performance of the obligations contained in the Notes and the Indenture. Each of the Guarantors hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of Mandalay, any right to require a proceeding first against Mandalay or right to require the prior disposition of the assets of Mandalay to meet its obligations, protest, notice and all demands whatsoever. Without limiting the generality of the foregoing, each of the Guarantors hereby waives, to the extent permitted under Nev. Rev. Stat. 40.495, any rights arising out of Nev. Rev. Stat. 40.430.
(c) If any holder or the Trustee is required by any court or otherwise to return to either Mandalay or any Guarantor, or any custodian, trustee, or similar official acting in relation to either Mandalay or any Guarantor, any amount paid by either Mandalay or any of the Guarantors to the Trustee or such holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each of the Guarantors agrees that it will not be entitled to any right of subrogation in relation to the holders in respect of any obligations guaranteed hereby except as set forth in Section 5 hereof.
(d) Each of the Guarantors agrees that (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in the Indenture for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to Mandalay of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of those obligations as provided in the Indenture, those obligations (whether or not due and payable) will forthwith become due and payable by each of the Guarantors for the purpose of this Guarantee.
2. EXECUTION AND DELIVERY OF GUARANTEE.
To evidence its guarantee set forth in Section 1 of this Guarantee, each of the Guarantors agrees that a notation of such guarantee substantially in the form of the notation included in the Note annexed to the Indenture as Exhibit A shall be endorsed on each Note authenticated and delivered by the Trustee and that this Guarantee shall be executed on behalf of such Guarantor by a duly authorized officer.
Each of the Guarantors agrees that its guarantee set forth in Section 1 of this Guarantee shall remain in full force and effect and apply to all the Notes notwithstanding any failure to endorse on each Note a notation of such guarantee.
If an Officer whose facsimile signature is on a Note no longer holds that office at the time the Trustee authenticates the Note on which a guarantee is endorsed, the guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of this Guarantee on behalf of the Guarantors.
3. LIMITATION OF GUARANTORS' LIABILITY.
Each Guarantor and by its acceptance hereof each holder hereby confirms
that it is the intention of all such parties that the guarantee by such
Guarantor pursuant to this Guarantee not constitute a fraudulent transfer or
conveyance for purposes of any federal or state law. To effectuate the foregoing
intention, the holders and each Guarantor hereby irrevocably agree that the
obligations of each such Guarantor under this Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed
liabilities of such Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor (as defined in the
Indenture) in respect of the obligations of such other Guarantor (as defined in
the Indenture) under its Guarantee (as defined in the Indenture) or pursuant to
Section 4 of this Guarantee, result in the obligations of such Guarantor under
this Guarantee not constituting a fraudulent conveyance or fraudulent transfer
under federal or state law. This Section 3 is for the benefit of the creditors
of each Guarantor.
4. CONTRIBUTION.
In order to provide for just and equitable contribution among the Guarantors, the Guarantors agree, inter se, that in the event any payment or distribution is made by any Guarantor (a "Funding Guarantor") under this Guarantee, such Funding Guarantor shall be entitled to a contribution from each other Guarantor in a pro rata amount based on the net worth of each Guarantor (including the Funding Guarantor) for all payments, damages and expenses incurred by that Funding Guarantor in discharging Mandalay's obligations with respect to the Notes or any other Guarantor's obligations with respect to this Guarantee.
5. RIGHTS UNDER THIS GUARANTEE.
(a) Each of the Guarantors waives notice of the issuance, sale and purchase of the Notes and notice from the Trustee or the holders from time to time of any of the Notes of their acceptance and reliance on this Guarantee.
(b) Notwithstanding any payment or payments made by the Guarantors by reason of this Guarantee, the Guarantors shall not be subrogated to any rights of the Trustee or any holder against Mandalay until all the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture. Any payment made by the Guarantors by reason of this Guarantee shall be in all respects subordinated to the full and complete payment or discharge under the Indenture of all obligations guaranteed hereby, and no payment by the Guarantors by reason of this Guarantee shall give rise to any claim of the Guarantors against the Trustee or any holder of the Notes. Unless and until the Notes shall have been paid or deemed to have been paid within the meaning of the Indenture, neither the Guarantors nor any of them will assign or otherwise transfer any such claim against Mandalay to any other person.
(c) No set-off, counterclaim, reduction or diminution of any obligation or any defense of any kind or nature (other than performance by the Guarantors of their obligations hereunder) which any Guarantor may have or assert against the Trustee or any holder of any Note shall be available hereunder to such Guarantor against the Trustee.
(d) Each Guarantor agrees to pay all costs, expenses and fees, including all reasonable attorneys' fees, which may be incurred by the Trustee in enforcing or attempting to enforce this Guarantee or protecting the rights of the Trustee or the holders of the Notes, if any, in accordance with the Indenture.
6. PRIMARY OBLIGATIONS.
Each Guarantor agrees that it is directly liable to each holder hereunder, that the obligations of each Guarantor hereunder are independent of the obligations of Mandalay or any other guarantor, and that a separate action may be brought against each Guarantor, whether such action is brought against Mandalay or any other guarantor or whether Mandalay or any other guarantor is joined in such action. Each Guarantor agrees that its liability hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by the Trustee or the holders of the Notes of whatever remedies they may have against Mandalay or any other guarantor. Each Guarantor agrees that any release which may be given by the Trustee or the holders of the Notes to Mandalay or any other guarantor shall not release such Guarantor. Each Guarantor consents and agrees that the Trustee shall be under no obligation to marshal any property or assets of the Company or any other guarantor in favor of such Guarantor, or against or in payment of any or all of the Guaranteed Obligations.
7. WAIVERS.
(a) Each Guarantor hereby waives any right to receive, or any claim or defense based on failure to receive: (i) notice of the amount of the Guaranteed Obligations; (ii) notice of any adverse change in the financial condition of Mandalay or of any other fact that might increase such Guarantor's risk hereunder; (iii) notice of a Default or Event of Default; and (iv) all other notices (except if such notice is specifically required to be given to Mandalay under the Indenture) and demands to which such Guarantor might otherwise be entitled.
(b) Each Guarantor hereby waives the right by statute or otherwise to require the Trustee or the holders to institute suit against Mandalay (or against any other Person) or to exhaust any rights and remedies which the Trustee or the holders have or may have against Mandalay (or against any other Person). In this regard, each Guarantor agrees that it is bound to the payment of each and all of the Guaranteed Obligations, whether now existing or hereafter arising, as fully as if such Guaranteed Obligations were directly owing to the Trustee and the holders by such Guarantor. Each Guarantor further waives any defense arising by reason of any disability or other defense (other than the defense that the Guaranteed Obligations shall have been fully and finally performed and indefeasibly paid) of Mandalay or by reason of the cessation from any cause whatsoever of the liability of Mandalay in respect thereof.
(c) Each Guarantor hereby waives: (i) any claim or defense directly or indirectly arising from or caused by any election of remedies by the Trustee or holders of the Notes, whether or not such election of remedies directly or indirectly results in impairment or loss of rights or claims of such Guarantor against Mandalay or other Persons; and (ii) any defenses based on suretyship law or impairment of collateral.
8. RELEASES.
Each Guarantor consents and agrees that, without notice to or by such Guarantor and without affecting or impairing the obligations of such Guarantor hereunder, the Trustee may, by action or inaction, compromise or settle, extend the period of duration or the time for the payment, or discharge the performance of, or may refuse to, or otherwise not enforce, or may, by action or inaction, release all or any one or more parties to, any one or more of the terms and provisions of the Indenture or may grant other indulgences to Mandalay in respect thereof, or may, by action or inaction, release or substitute any other guarantor, if any, of the Guaranteed Obligations, or may enforce, exchange, release, or waive, by action or inaction, any security for the Guaranteed Obligations or any other guaranty of the Guaranteed Obligations, or any portion thereof.
9. NO ELECTION.
The Trustee shall have the right to seek recourse against each Guarantor to the fullest extent provided for herein and no election by the Trustee to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of Trustee's right to proceed in any other form of action or proceeding, or against other parties unless the Trustee has expressly waived such right in writing.
10. FINANCIAL CONDITION OF MANDALAY.
Each Guarantor represents and warrants to the Trustee and holders that it is currently informed of the financial condition of Mandalay and of all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor further represents and warrants to the Trustee and holders that it has read and understands the terms and conditions of the Indenture and this Guarantee. Each Guarantor hereby covenants that it will continue to keep itself informed of Mandalay's financial condition, the financial condition of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment or nonperformance of the Guaranteed Obligations.
11. RELEASE UPON CERTAIN EVENTS.
(a) In the event that any Guarantor ceases to guarantee the obligations of MGM MIRAGE under the Credit Facility, then such Guarantor will be released and relieved of any and all obligations under this Guarantee without further action by any of Mandalay or any of the Guarantors. The Trustee shall execute any documents reasonably required in order to evidence the release of any Guarantor from its obligations under this Guarantee. For the purposes of this Section 11, the "Credit Facility" shall mean the Fourth Amended and Restated Loan Agreement, as may be amended, restated or replaced from time to time, dated as of November 22, 2004, by and among MGM MIRAGE, MGM Grand Detroit, LLC, as co-borrower, Bank of America, N.A., as the administrative agent, The Royal Bank of Scotland PLC, as the syndication agent, a joint lead
arranger, and a joint book manager, Bank of America Securities LLC as a joint lead arranger and a joint book manager, JP Morgan Securities, Inc., Citibank North America, Inc., and Deutsche Bank Securities Inc. as joint book managers, JP Morgan Chase Bank, Citigroup USA Inc., Deutsche Bank, Bank of Scotland PLC, Barclays Bank PLC, BNP Paribas, Commerzbank, Sumitomo Mitsui Banking Corporation and Wachovia Bank, N.A., as co-documentation agents, Societe Generale, as senior managing agent, Merrill Lynch Bank USA and U.S. Bank National Association, as managing agents, and the other lenders party thereto.
(b) In the event of a sale or other disposition of all of the assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale or other disposition of all to the capital stock of any Guarantor, then such Guarantor (in the event of a sale or other disposition, by way of merger, consolidation or otherwise, of all of the capital stock of such Guarantor) or the corporation acquiring the property (in the event of a sale or other disposition of all or substantially all of the assets of such Guarantor) will be released and relieved of any obligations under this Guarantee.
(c) Any Guarantor not released from its obligations under this Guarantee shall remain liable for the full amount of principal of and interest on the Notes and for the other obligations of any Guarantor under the Indenture.
12. GOVERNING LAW.
This Guarantee shall be deemed to be a contract made and to be performed entirely in the State of Nevada, and for all purposes shall be governed by and construed in accordance with the internal laws of said State without regard to the conflicts of law rules of said State.
13. NON-INVOLVEMENT OF KIRK KERKORIAN AND TRACINDA CORPORATION.
By accepting the benefits of this Guarantee, the Trustee and the holders of each Note acknowledge that neither Kirk Kerkorian nor Tracinda Corporation, individually or collectively, is a party to the Indenture or the Notes. In the event (i) there is any alleged breach or default by any Guarantor under this Guarantee or any such agreement, or (ii) any party hereto has any claim arising from or relating to this Guarantee or any such agreement, the Trustee and the holders of the Notes, nor any party claiming through them (to the extent permitted by applicable law), shall commence any proceedings or otherwise seek to impose any liability whatsoever against Mr. Kerkorian or Tracinda Corporation by reason of such alleged breach, default or claim.
[Signature Page to Follow]
IN WITNESS WHEREOF, each Guarantor has executed this Guarantee by its duly authorized officer as of the date first written above.
By: /s/ BRYAN L. WRIGHT
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Bryan L. Wright
Assistant Secretary of each of the Guarantors listed on
Exhibit A hereto
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EXHIBIT A - GUARANTORS
1. AC Holding Corp., a Nevada corporation
2. AC Holding Corp. II, a Nevada corporation
3. The April Cook Companies, a Nevada corporation
4. Beau Rivage Distribution Corp., a Mississippi corporation
5. Beau Rivage Resorts, Inc. a Mississippi corporation
6. Bellagio, LLC, a Nevada limited liability company
7. Bellagio II, LLC, a Nevada limited liability company
8. Boardwalk Casino, Inc., a Nevada corporation
9. Bungalow, Inc., a Mississippi corporation
10. Circus Circus Mississippi, Inc., a Mississippi corporation
11. Circus Circus Casinos, Inc., a Nevada corporation
12. Colorado Belle Corp., a Nevada corporation
13. Country Star Las Vegas, LLC, a Nevada limited liability company
14. Destron, Inc., a Nevada corporation
15. Diamond Gold, Inc., a Nevada corporation
16. Edgewater Hotel Corporation, a Nevada corporation
17. EGARIM, Inc., an Alabama corporation
18. Galleon, Inc., a Nevada corporation
19. Gold Strike Aviation, Incorporated, a Nevada corporation
20. Gold Strike Fuel Company, a Nevada partnership
21. Gold Strike L.V., a Nevada partnership
22. Goldstrike Finance Company, Inc., a Nevada corporation
23. Goldstrike Investments, Incorporated, a Nevada corporation
24. Grand Laundry, Inc., a Nevada corporation
25. Jean Development Company, a Nevada partnership
26. Jean Development West, a Nevada partnership
27. Jean Fuel Company West, a Nevada partnership
28. Last Chance Investments, Incorporated, a Nevada corporation
29. LV Concrete Corp., a Nevada corporation
30. MAC, Corp., a New Jersey corporation
31. Mandalay Corp., a Nevada corporation
32. Mandalay Development, a Nevada corporation
33. Mandalay Marketing and Events, a Nevada corporation
34. Mandalay Place (f.k.a. New Dirt, Inc.), a Nevada corporation
35. Mandalay Resort Group, a Nevada corporation
36. Metropolitan Marketing, LLC, a Nevada limited liability company
37. MGM Grand Atlantic City, Inc., a New Jersey corporation
38. MGM Grand Condominiums, LLC, a Nevada limited liability company
39. MGM Grand Condominiums II, LLC, a Nevada limited liability company
40. MGM Grand Detroit, Inc., a Delaware corporation
41. MGM Grand Hotel, LLC, a Nevada limited liability company
42. MGM Grand New York, LLC, a Nevada limited liability company
43. MGM Grand Resorts, LLC, a Nevada limited liability company
44. MGM MIRAGE Advertising, Inc., a Nevada corporation
45. MGM MIRAGE Aircraft Holdings, LLC, a Nevada limited liability company
46. MGM MIRAGE Aviation Corp., a Nevada corporation
47. MGM MIRAGE Corporate Services, a Nevada corporation
48. MGM MIRAGE Design Group, a Nevada corporation
49. MGM MIRAGE Development, Inc., a Nevada corporation
50. MGM MIRAGE Entertainment and Sports, a Nevada corporation
51. MGM MIRAGE International, a Nevada corporation
52. MGM MIRAGE Manufacturing Corp., a Nevada corporation
53. MGM MIRAGE Operations, Inc., a Nevada corporation
54. MGM MIRAGE Retail, a Nevada corporation
55. MH, Inc., a Nevada corporation
56. M.I.R. Travel, a Nevada corporation
57. The Mirage Casino-Hotel, a Nevada corporation
58. Mirage Laundry Services Corp., a Nevada corporation
59. Mirage Leasing Corp., a Nevada corporation
60. Mirage Resorts, Incorporated, a Nevada corporation
61. MMNY Land Company, Inc., a New York corporation
62. MRG Vegas Portal, Inc., a Nevada corporation
63. MRGS Corp., a Nevada corporation
64. M.S.E. Investments, Incorporated, a Nevada corporation
65. New Castle Corp., a Nevada corporation
66. New PRMA Las Vegas, Inc., a Nevada corporation
67. New York-New York Hotel & Casino, LLC, a Nevada limited liability company
68. New York-New York Tower, LLC, a Nevada limited liability company
69. Oasis Development Company, Inc., a Nevada corporation
70. Plane Truth, LLC, a Nevada limited liability company
71. The Primadonna Company, LLC, a Nevada limited liability company
72. PRMA Land Development Company, a Nevada corporation
73. PRMA, LLC, a Nevada limited liability company
74. Project CC, LLC, a Nevada limited liability company
75. Railroad Pass Investment Group, a Nevada partnership
76. Ramparts International, a Nevada corporation
77. Ramparts, Inc., a Nevada corporation
78. Restaurant Ventures of Nevada, Inc., a Nevada corporation
79. Slots-A-Fun, Inc., a Nevada corporation
80. Treasure Island Corp., a Nevada corporation
81. Victoria Partners, a Nevada partnership
82. VidiAd, a Nevada corporation
| 1. | I have reviewed this quarterly report on Form 10-Q of MGM MIRAGE; | |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
| 4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 15(f) and 15d-15(f)) for the registrant and have: |
| a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
| b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| c) | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
| d) | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors: |
| a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | ||
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
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November 9, 2005
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/s/ J. Terrence Lanni | |
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J. Terrence Lanni | |
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Chairman of the Board and Chief Executive Officer |
| 1. | I have reviewed this quarterly report on Form 10-Q of MGM MIRAGE; | |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | |
| 4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 15(f) and 15d-15(f)) for the registrant and have: |
| a) | designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
| b) | designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| c) | evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
| d) | disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of registrant’s board of directors: |
| a) | all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | ||
| b) | any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
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November 9, 2005
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/s/ James J. Murren | |
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James J. Murren | |
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President, Chief Financial Officer and Treasurer |
| (1) | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. |
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/s/ J. Terrence Lanni
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Chairman and Chief Executive Officer
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November 9, 2005
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| (1) | The Report fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and result of operations of the Company. |
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/s/ James J. Murren
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President, Chief Financial Officer and Treasurer
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November 9, 2005
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