MGM MIRAGE (a Delaware corporation) UNDERWRITING AGREEMENT
TABLE OF CONTENTS
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SECTION 1.
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Representations and Warranties by the Company and Subsidiary Guarantors | 3 | ||||
SECTION 2.
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Sale and Delivery to Underwriters; Closing | 12 | ||||
SECTION 3.
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Covenants of the Company | 13 | ||||
SECTION 4.
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Payment of Expenses | 17 | ||||
SECTION 5.
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Conditions of Underwriters’ Obligations | 17 | ||||
SECTION 6.
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Indemnification | 20 | ||||
SECTION 7.
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Representations, Warranties and Agreements to Survive Delivery | 24 | ||||
SECTION 8.
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Termination of Agreement | 24 | ||||
SECTION 9.
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Default by One or More of the Underwriters | 24 | ||||
SECTION 10.
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Notices | 25 | ||||
SECTION 11.
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Parties | 25 | ||||
SECTION 12.
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Governing Law and Time | 26 | ||||
SECTION 13.
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Effect of Headings | 26 | ||||
SECTION 14.
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Agreement Regarding Tracinda | 26 | ||||
SECTION 15.
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No Fiduciary Responsibility | 26 | ||||
SECTION 16.
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Entire Agreement | 26 | ||||
MGM MIRAGE
(a Delaware corporation)
(a Delaware corporation)
$750,000,000 7.50% Senior Notes due 2016
May 8, 2007
Citigroup Global Markets Inc.
as Representative of the several Underwriters
as Representative of the several Underwriters
c/o Citigroup Global Markets Inc.
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
MGM MIRAGE, a Delaware corporation (the “Company”), confirms its agreement with Citigroup
Global Markets Inc. (“Citi”) and each of the other Underwriters named in Schedule A hereto
(collectively, the “Underwriters,” which term shall also include any underwriter substituted as
hereinafter provided in Section 9 hereof), for whom Citi is acting as representative (in
such capacity, the “Representative”), with respect to the issue and sale by the Company and the
purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts
set forth in Schedule A of $750,000,000 aggregate principal amount of the Company’s 7.50%
Senior Notes due 2016 (the “Notes”).
The Notes are to be issued pursuant to an indenture dated as of December 21, 2006, (the
“Indenture”) among the Company, the Subsidiary Guarantors (as defined below) and U.S. Bank National
Association, as trustee (the “Trustee”) as supplemented by a supplemental indenture to be dated as
of the Closing Time (as defined below) among the Company, the Subsidiary Guarantors and the Trustee
(the “Supplemental Indenture”). The Notes will be unconditionally guaranteed by certain
subsidiaries of the Company (the “Subsidiary Guarantors”) who have guaranteed, pursuant to
guarantees included in the Indenture as supplemented by the Supplemental Indenture (the “Subsidiary
Guarantees”), the interest and other amounts payable on the Notes. As used herein, the term
“Securities” shall include the Notes and the Subsidiary Guarantees. Notes issued in book-entry
form will be issued to Cede & Co. as nominee of The Depository Trust Company (“DTC”) pursuant to a
letter agreement, to be dated on or prior to the Closing Time (the “DTC Agreement”), between the
Company and DTC.
The Company and the Subsidiary Guarantors have filed with the Securities and Exchange
Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (No.
333-133925), including a related base prospectus, relating to the registration of debt and common
stock of the Company (the “Shelf Securities”), including the Securities, which registration
statement became effective upon filing under Rule 462(e) of the rules and regulations of the
Commission (the “1933 Act Regulations”) pursuant to the Securities Act of
1933, as amended (the “1933 Act”). Such registration statement, at any given time, including
the amendments thereto to such time, the exhibits and any schedules thereto at such time, the
documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at
such time and the documents otherwise deemed to be a part thereof or included therein by 1933 Act
Regulations, including any required information deemed to be a part thereof pursuant to Rule 430B
(“Rule 430B”) of the 1933 Act Regulations is herein called the “Registration Statement” and the
related prospectus covering the Shelf Securities included in the Registration Statement at any
given time, including the amendments thereto at such time, is herein called the “Basic Prospectus.”
The Registration Statement at the time it originally became effective is herein called the
“Original Registration Statement.”
The Company has prepared, filed and delivered to each Underwriter, copies of a preliminary
prospectus supplement dated May 8, 2007 in accordance with the provisions of Rule 430B and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations (together with the Basic
Prospectus (to the extent not superseded or modified), the “Preliminary Prospectus”), and has
prepared and delivered to each Underwriter copies of a final term sheet for the Securities,
identified on Schedule C hereto (the “Pricing Supplement”), describing the terms of the
Securities and including the price at which the Notes are to be sold to the public, each for use by
the Underwriters in connection with its solicitation of offers to purchase the Securities. The
Preliminary Prospectus and the Pricing Supplement, together with the other Issuer Free Writing
Prospectuses (as defined below), if any, identified on Schedule C hereto and any other free
writing prospectus (as defined below) that the parties hereto shall hereafter expressly agree in
writing to treat as part of the Pricing Disclosure Package, are herein referred to as the “Pricing
Disclosure Package”. All references herein to the terms “Pricing Disclosure Package” shall be
deemed to mean and include all information filed under the Securities Exchange Act of 1934, as
amended (the “1934 Act”) or the rules and regulations of the Commission under the 1934 Act (the
“1934 Act Regulations”), prior to the Applicable Time and incorporated by reference in the Pricing
Disclosure Package. “Applicable Time” means 4:45 pm (Eastern time) on the date of this Agreement
or such other time as agreed by the Company and the Representative.
Promptly after the Applicable Time (as defined below), the Company will prepare and deliver to
each Underwriter a final prospectus supplement dated the date hereof. The Basic Prospectus (to the
extent not superseded or modified) together with the final prospectus supplement in the form first
furnished to the Underwriters for use in connection with the offering of the Securities is herein
referred to as the “Prospectus”.
For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule
405 of the 1933 Act Regulations and “Issuer Free Writing Prospectus” means any issuer free writing
prospectus, as defined in Rule 433 of the 1933 Act Regulations, relating to the Securities in the
form filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” in the Registration Statement, the Pricing Disclosure
Package and the Prospectus (and all other references of like import) shall be deemed to mean and
include all such financial statements and schedules and other information which are incorporated by
reference in or otherwise deemed by the 1933 Act Regulations to be a
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part of or included in the applicable document; and all references herein to the terms
“amend,” “amendment,” or “supplement” with respect to the Registration Statement, the Basic
Prospectus, the Preliminary Prospectus, any free writing prospectus or the Prospectus shall be
deemed to mean and include all information filed under the 1934 Act or the 1934 Act Regulations on
or before such time and incorporated by reference therein.
SECTION 1. Representations and Warranties by the Company and Subsidiary Guarantors.
The Company and the Subsidiary Guarantors jointly and severally represent and warrant to each
Underwriter as of the date hereof, the Applicable Time and as of the Closing Time as follows
(references in this Section 1 to the “Prospectus” apply only in the case of representations
and warranties made as of the Closing Time):
(a) Status as a Well-Known Seasoned Issuer. (A) At the time of filing the
Original Registration Statement, (B) at the time of the most recent amendment to the
Registration Statement for the purposes of complying with Section 10(a)(3) of the 1933 Act
(whether such amendment was by post-effective amendment, incorporated report filed pursuant
to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company
or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c)
of the 1933 Act Regulations) made any offer relating to the Securities in reliance on the
exemption of Rule 163 of the 1933 Act Regulations (“Rule 163”) and (D) at the date hereof,
the Company was and is a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act
Regulations (“Rule 405”), including not having been and not being an “ineligible issuer” as
defined in Rule 405. The Registration Statement is an “automatic shelf registration
statement” as defined in Rule 405, and the Securities, since their registration on the
Registration Statement, have been and remain eligible for registration by the Company on a
Rule 405 “automatic shelf registration statement.” The Company has not received from the
Commission any notice, including pursuant to Rule 401(g)(2) of the 1933 Act Regulations,
objecting to the use of the automatic shelf registration statement form.
At the time of filing the Original Registration Statement, at the earliest time
thereafter that the Company or another offering participant made a bona fide offer (within
the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405,
including the Company or any other subsidiary in the preceding three years not having been
convicted of a felony or misdemeanor or having been made the subject of a judicial or
administrative decree or order as described in Rule 405.
(b) Registration Statement, Prospectus and Disclosure at Time of Sale. The
Original Registration Statement became effective upon filing under Rule 462(e) of the 1933
Act Regulations (“Rule 462(e)”) on May 9, 2006, and any post-effective amendment thereto
also became effective upon filing under Rule 462(e). No stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the Commission
for additional information has been complied with.
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Any offer that is a written communication relating to the Securities made prior to the
filing of the Original Registration Statement by the Company or any person acting on its
behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act
Regulations) has been filed with the Commission in accordance with the exemption provided by
Rule 163 and otherwise complied with the requirements of Rule 163, including without
limitation the legending requirement, to qualify such offer for the exemption from Section
5(c) of the 1933 Act provided by Rule 163.
At the time the Registration Statement became effective (including without limitation
the effective dates of any amendments thereto and each deemed effective date with respect to
the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations), as of the
Applicable Time and at the Closing Time, the Registration Statement complied or will comply
in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations
and the Trust Indenture Act of 1939, as amended (the “1939 Act”) and the rules and
regulations of the Commission under the 1939 Act (the “1939 Act Regulations”), and did not
and will not, contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading; and neither the Pricing Disclosure Package, as of the Applicable Time and at the
Closing Time, nor the Prospectus nor any amendments or supplements thereto, as of its date,
and at the Closing Time, included or will include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided,
however, that the representations and warranties in this section shall not apply to
statements in or omissions from the Registration Statement, Pricing Disclosure Package or
Prospectus made in reliance upon and in conformity with information furnished to the Company
in writing by any Underwriter through the Representative expressly for use in the
Registration Statement, Pricing Disclosure Package or Prospectus, as applicable (it being
understood and agreed that the only such information furnished by an Underwriter consists of
the information described as such in Section 6 hereof).
The Preliminary Prospectus and the prospectus or prospectuses filed as part of the
Original Registration Statement or any amendment thereto and the Prospectus when filed
complied when so filed in all material respects with the 1933 Act Regulations, the
Prospectus when filed will comply when so filed in all material respects with the 1933 Act
Regulations and each such prospectus delivered to the Underwriters for use in connection
with this offering was, and the Prospectus when so delivered will be, identical to the
electronically transmitted copies thereof filed with the Commission pursuant to ▇▇▇▇▇,
except to the extent permitted by Regulation S-T of the Commission (“Regulation S-T”).
Each Issuer Free Writing Prospectus (including any electronic road show), as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Securities or until any earlier date that the Company notified or notifies the
Representative as described in Section 3(e) hereof, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, including any document incorporated by reference
therein
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and any preliminary or other prospectus deemed to be a part thereof that has not been
superseded or modified. The foregoing sentence does not apply to statements in or omissions
from any Issuer Free Writing Prospectus based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representative expressly
for use therein (it being understood and agreed that the only such information furnished by
an Underwriter consists of the information described as such in Section 6 hereof).
(c) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are independent
public accountants within the meaning of Rule 101 of the Code of Professional Conduct of the
American Institute of Certified Public Accountants and its interpretations and rulings
thereunder.
(d) Financial Statements. The financial statements, together with the related
notes, included in the Registration Statement and the Pricing Disclosure Package, and the
financial statements, together with the related notes, included in the Prospectus, present
fairly the respective financial positions of the Company and its consolidated subsidiaries
as of the dates indicated and the results of their operations for the periods specified;
except as otherwise stated in the Registration Statement, the Pricing Disclosure Package or
the Prospectus, as applicable, said financial statements have been prepared in conformity
with generally accepted accounting principles (“GAAP”) applied on a consistent basis; the
supporting schedules present fairly the information required to be stated therein; and the
Company’s ratio of earnings to fixed charges (actual and, if any, pro forma) included in the
Prospectus and the Pricing Disclosure Package have in each case been calculated in
compliance with Item 503(d) of Regulation S-K of the Commission. The selected historical
financial data and summary financial information, if any, included in each of the Pricing
Disclosure Package and the Prospectus present fairly, in all material respects, the
information shown therein and have been compiled on a basis consistent with that of the
audited financial statements included in the Registration Statement. Except as set forth in
the Pricing Disclosure Package and the Prospectus, respectively, the historical consolidated
financial statements together with the notes thereto forming part of the Pricing Disclosure
Package and the Prospectus comply as to form in all material respects with the requirements
applicable to financial statements of the Company required to be included in registration
statements on Form S-3 under the ▇▇▇▇ ▇▇▇. The forward-looking statements contained in the
Pricing Disclosure Package and the Prospectus are based upon good faith estimates and
assumptions believed by the Company and the Subsidiary Guarantors to be reasonable at the
time made and the pro forma financial information and the related notes thereto included or
incorporated by reference in the Pricing Disclosure Package and the Prospectus has been
prepared in accordance with the Commission’s rules and guidance with respect to pro forma
financial information, and the material assumptions underlying such pro forma financial
information are reasonable and are set forth in the Pricing Disclosure Package and the
Prospectus. All disclosures contained in each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such term
is defined by the rules and regulations of the Commission) comply with Regulation G under
the 1934 Act and Item 10 of Regulation S-K of the 1933 Act
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Regulations, to the extent applicable. As used herein, “subsidiaries” has the meaning
ascribed thereto in Regulation S-X under the 1933 Act.
(e) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, except as otherwise stated therein, (i) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one enterprise, whether
or not arising in the ordinary course of business (a “Material Adverse Effect”), (ii) there
have been no transactions entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(f) Good Standing of the Company. The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement, the Prospectus and the
Pricing Disclosure Package and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(g) Good Standing of Designated Subsidiaries. Except as disclosed in each of
the Pricing Disclosure Package and the Prospectus, the Company does not own, lease or
license any asset or property or conduct any business outside the United States of America
other than in connection with foreign marketing offices that are incidental to the Company’s
marketing activities. Each of the subsidiaries of the Company listed on Schedule D
hereto (collectively, the “Company Subsidiaries” and, individually, each a “Company
Subsidiary”) has been duly incorporated or formed and is validly existing as a corporation,
limited liability company, general partnership or limited partnership in good standing under
the laws of its state or other jurisdiction of incorporation or formation. Each of the
Company Subsidiaries that is a general partnership has been duly formed and is validly
existing as a general partnership under the laws of its state or other jurisdiction of
formation. Each Company Subsidiary is duly qualified and in good standing as a foreign
corporation or limited liability company in each jurisdiction in which the character or
location of its assets or property (owned, leased or licensed) or the nature of its business
makes such qualification necessary, except for such jurisdictions where the failure to
qualify would not have a Material Adverse Effect. The Company does not control, directly or
indirectly, any corporation, partnership, joint venture, association or other business
organization other than the Company Subsidiaries. All of the issued and outstanding capital
stock or other ownership interests, as the case may be, of each Company Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and is owned by the
Company (with the exception of MGM Grand
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Detroit, LLC (including its subsidiaries), MGM Grand (Macao) Limited and MGM Grand
Olympia Ltd. (in which the Company has approximately a 97%, 89.99% and 82.5% interest,
respectively)), directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, except for liens permitted under the
Indenture as supplemented by the Supplemental Indenture as described under “Limitations on
Liens” in the Pricing Disclosure Package and the Prospectus.
(h) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in each of the Pricing Disclosure Package and the Prospectus
(except for subsequent issuances or purchases, if any, pursuant to this Agreement or
pursuant to reservations, agreements, employee benefit plans, the exercise of convertible
securities or the Company’s stock repurchase program referred to in each of the Pricing
Disclosure Package and the Prospectus); and the shares of issued and outstanding common
stock have been duly authorized and validly issued and are fully paid and non-assessable.
(i) Permits. Except where any such failure to do so would not have a Material
Adverse Effect, each of the Company and the Company Subsidiaries has all requisite corporate
or limited liability company power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and from all governmental
or regulatory bodies or any other person or entity, including any and all licenses, permits
and approvals required under any foreign, federal, state or local law (including the Nevada
Gaming Control Act, the New Jersey Casino Control Act, the Michigan Gaming Control and
Revenue Act, the Illinois Riverboat Gambling Act and the Mississippi Gaming Control Act and
the rules and regulations thereunder and any similar laws and regulations governing any
aspect of legalized gaming in any foreign, federal, state or local jurisdiction
(collectively, the “Gaming Laws”)), to own, lease and license its assets and properties and
to conduct its business, but only to the extent the same are currently conducted and
operated as described in each of the Pricing Disclosure Package and the Prospectus, and,
except to the extent disclosed in each of the Pricing Disclosure Package and the Prospectus
with respect to (i) the placement of restrictions on the transfer of and the entering into
of agreements not to encumber the Company’s interests in certain Company Subsidiaries
licensed or registered under the Nevada Gaming Laws, and (ii) the receipt of the Illinois
Approval relating to Nevada Landing (as such terms are defined below) to execute the
Subsidiary Guarantees. Except to the extent disclosed in each of the Pricing Disclosure
Package and the Prospectus with respect to the placement of restrictions on the transfer of
and the entering into agreements not to encumber the Company’s interests in certain Company
Subsidiaries licensed or registered under the Nevada Gaming Laws, the Company and each of
the Company Subsidiaries have fulfilled and performed in all material respects all of their
obligations with respect to such authorizations, approvals, consents, orders, licenses,
certificates and permits, and neither the Company, nor any Company Subsidiary is in
violation of any term or provision of any such authorizations, approvals, consents, orders,
licenses, certificates or permits, nor has any event occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or which could result in any
material impairment of the rights of the holder thereof. Neither the Company nor any of the
Company Subsidiaries
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has any reason to believe that (i) any governmental or regulatory body is considering
modifying, limiting, conditioning, suspending, revoking or not renewing any such
authorizations, approvals, consents, orders, licenses, certificates or permits of the
Company or any of the Company Subsidiaries (other than immaterial modifications, limitations
and conditions arising in connection with licensing) or that (ii) such governmental or
regulatory bodies are investigating the Company or any of the Company Subsidiaries or
related parties (other than, with respect to (ii) above, normal oversight reviews by such
bodies incident to the licensure, gaming activities and casino management activities of the
Company and the Company Subsidiaries).
(j) Non-Contravention. Neither the Company nor any Company Subsidiary is in
violation of its charter or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company or any Company
Subsidiary is a party or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any Company Subsidiary is subject except for any
violation or default which, individually or in the aggregate, would not have a Material
Adverse Effect; and the execution, delivery and performance by the Company and each of the
Subsidiary Guarantors of, as applicable, the Indenture, the Supplemental Indenture, the
Notes and the Subsidiary Guarantees, and the consummation of the transactions contemplated
herein and therein and compliance by the Company and the Subsidiary Guarantors with their
obligations hereunder and thereunder have been duly authorized by all necessary corporate
action and will not conflict with or constitute a breach of, or default under, or result in
the creation or imposition of (other than as expressly contemplated thereby) any lien,
charge or encumbrance upon any property or assets of the Company or any Company Subsidiary
pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which the Company or any Company Subsidiary is a party or by which it or any
of them may be bound, or to which any of the property or assets of the Company or any
Company Subsidiary is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or any Company Subsidiary or any
applicable law, administrative regulation or administrative or court decree.
(k) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any Company Subsidiary exists or, to the knowledge of the Company, is imminent,
and the Company is not aware of any existing or imminent labor disturbance by the employees
of its or any Company Subsidiary’s principal suppliers, manufacturers or contractors, which,
in either case, may reasonably be expected to result in a Material Adverse Effect. None of
the Company and its subsidiaries has violated (i) any federal, state or local law or foreign
law relating to discrimination in hiring, promotion or pay of employees, (ii) any applicable
wage or hour laws or (iii) any provision of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), or the rules and regulations thereunder, which in any such event
could be reasonably expected to have a Material Adverse Effect.
(l) Absence of Proceedings. There is no action, suit or proceeding, before or
by any court or governmental agency or body, domestic or foreign, now pending, or, to
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the knowledge of the Company, threatened, against or affecting the Company or any
Company Subsidiary which has not been disclosed in each of the Pricing Disclosure Package
and the Prospectus and could reasonably be expected to result in a Material Adverse Effect,
could reasonably be expected to materially and adversely affect the properties or assets of
the Company and the Company Subsidiaries or which could reasonably be expected to materially
and adversely affect the consummation of the transactions contemplated by this Agreement;
the aggregate of all pending legal or governmental proceedings to which the Company or any
Company Subsidiary is a party or of which any of their respective property or assets is the
subject which are not described in each of the Pricing Disclosure Package and the
Prospectus, including ordinary routine litigation incidental to the business, would not,
considered in the aggregate, if adversely determined reasonably be expected to result in a
Material Adverse Effect; and there are no contracts or documents of the Company or any
Company Subsidiary which are required to be filed as exhibits to the Registration Statement
or otherwise included by the 1933 Act or the 1933 Act Regulations which have not been filed
or included in each of the Pricing Disclosure Package and the Prospectus, which could,
through breach, termination or by execution of their terms, reasonably be expected to result
in a Material Adverse Effect.
(m) Possession of Intellectual Property. The Company and the Company
Subsidiaries own, have incidental rights to or possess the right to use to the extent
necessary in their businesses, or can acquire on reasonable terms, the patents, patent
rights, licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names (collectively, “proprietary rights”)
presently employed by them in connection with the business now operated by them, and neither
the Company nor any Company Subsidiary has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to any proprietary
rights, or of any facts which would render any proprietary rights invalid or inadequate to
protect the interest of the Company or any Company Subsidiary therein, and which failure,
infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, singly or in the aggregate, would result in a Material Adverse
Effect.
(n) No Authorization. No authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with the offering, issuance or
sale of the Notes, or the execution of the Subsidiary Guarantees, other than as required
under Gaming Laws and which have been obtained, except to the extent disclosed in each of
the Pricing Disclosure Package and the Prospectus with respect to (i) the placement of
restrictions on the transfer of and the entering into agreements not to encumber the
Company’s interests in certain Company Subsidiaries licensed or registered under the Nevada
Gaming Laws and (ii) the receipt of the Illinois Approval relating to Nevada Landing, and
except such as may be required under the 1933 Act or the 1933 Act Regulations or state
securities laws or the qualification of the Indenture under the 1939 Act.
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(o) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company and the Subsidiary Guarantors, and constitutes a valid
and binding agreement of the Company and the Subsidiary Guarantors, enforceable against them
in accordance with its terms, except as the enforcement thereof may be limited by (i)
bankruptcy, insolvency (including without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’
rights generally, (ii) general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (iii) with respect to rights of
indemnification or contribution, federal or state securities laws or principles of public
policy.
(p) Authorization of the Indenture. The Indenture and the Supplemental
Indenture have been duly authorized by the Company and the Subsidiary Guarantors and, at the
Closing Time, will have been duly executed and delivered by the Company and the Subsidiary
Guarantors and, at such time, will constitute a valid and binding agreement of the Company
and the Subsidiary Guarantors, enforceable against them in accordance with its terms, except
as the enforcement thereof may be limited by (i) bankruptcy, insolvency (including without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally, (ii) general principles
of equity (regardless of whether enforcement is considered in a proceeding in equity or at
law) and (iii) with respect to rights of indemnification or contribution, federal or state
securities laws or principles of public policy.
(q) Authorization of the Securities. The Notes and the Subsidiary Guarantees
have been duly authorized and, at the Closing Time, will have been duly executed by the
Company and the Subsidiary Guarantors, respectively, and, when authenticated, issued,
executed and delivered in the manner provided for in the Indenture as supplemented by the
Supplemental Indenture and delivered against payment of the purchase price therefor, will
constitute valid and binding obligations of the Company and the Subsidiary Guarantors,
respectively, enforceable against them in accordance with their terms, except in each case
as the enforcement thereof may be limited by (i) bankruptcy, insolvency (including without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors’ rights generally, (ii) general principles
of equity (regardless of whether enforcement is considered in a proceeding in equity or at
law) and (iii) with respect to rights of indemnification or contribution, federal or state
securities laws or principles of public policy.
(r) Authority of the Company. The Company has all requisite corporate power
and authority to enter into this Agreement, the Indenture, the Supplemental Indenture and
the Notes and to carry out the provisions and conditions hereof and thereof.
(s) Authority of the Subsidiary Guarantors. Each Subsidiary Guarantor has all
requisite corporate, partnership or limited liability company power and authority to enter
into this Agreement, the Indenture and the Supplemental Indenture and to carry out the
provisions and conditions hereof and thereof.
10
(t) Description of Certain Operative Agreements. The Securities and the
Indenture as supplemented by the Supplemental Indenture will conform in all material
respects to the respective statements relating thereto contained in each of the Pricing
Disclosure Package and the Prospectus, and will be in substantially the respective forms
filed or incorporated by reference, as the case may be, as exhibits to the Registration
Statement.
(u) Ranking. The Notes are and will be (i) senior in right of payment to all
subordinated indebtedness of the Company that is outstanding on the date hereof or that may
be incurred hereafter and (ii) equal in right of payment with all other indebtedness of the
Company that is outstanding on the date hereof or that may be incurred hereafter (except for
future indebtedness of the Company that may be subordinated to the Notes). The Notes
constitute “Senior Indebtedness” with respect to the Company’s 93/4% Senior Subordinated Notes
due 2007 and 83/8% Senior Subordinated Notes due 2011 (the “Subordinated Notes”) and the
9.375% Senior Subordinated Notes due 2010, 10.25% Senior Subordinated Notes due 2007 and
7.625% Senior Subordinated Debentures due 2013 (the “Subordinated Mandalay Notes”) of
Mandalay Resort Group, a Nevada corporation (“Mandalay”).
(v) Subsidiary Guarantees. The Subsidiary Guarantee of each Subsidiary
Guarantor is and will be (i) senior in right of payment to all subordinated indebtedness of
the applicable Subsidiary Guarantor that is outstanding on the date hereof or that may be
incurred hereafter and (ii) equal in right of payment with all other indebtedness of such
Subsidiary Guarantor that is outstanding on the date hereof or that may be incurred
hereafter (except for future indebtedness of such Subsidiary Guarantor that may be
subordinated to such Subsidiary Guarantee). The Subsidiary Guarantees constitute “Senior
Indebtedness” with respect to the Subordinated Notes and the Subordinated Mandalay Notes.
(w) Incorporated Documents. Each of the Pricing Disclosure Package and the
Prospectus as delivered from time to time shall incorporate by reference the most recent
Annual Report of the Company on Form 10-K filed with the Commission and each Quarterly
Report of the Company on Form 10-Q and each Current Report of the Company on Form 8-K filed
(and not otherwise furnished) with the Commission since the end of the fiscal year to which
such Annual Report relates. Additionally, each of the Pricing Disclosure Package and the
Prospectus as delivered from time to time shall incorporate (i) the Company’s Proxy
Statement for its 2006 Annual Meeting of Stockholders, and (ii) the consolidated financial
statements and notes thereto of Mandalay included in its Annual Report on Form 10-K for the
fiscal year ended on January 31, 2005. The documents filed or to be filed pursuant to the
1934 Act and incorporated or deemed to be incorporated by reference in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus on or prior to the
Closing Date, at the time they were filed, or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the 1934 Act, the
1933 Act Regulations and the 1934 Act Regulations, and, when read together with the other
information in the Pricing Disclosure Package or the Prospectus, as applicable, at the
Applicable Time and at the Closing Time, did not and will not contain an untrue
11
statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(x) Investment Company Act. The Company is not, and upon the issuance and sale
of the Notes as herein contemplated and the application of the net proceeds therefrom as
described in the Prospectus will not be, an “investment company” or an entity “controlled”
by an “investment company” as such terms are defined in the Investment Company Act of 1940,
as amended (the “1940 Act”).
(y) NASD. To the Company’s knowledge, (i) the Company is not the parent or an
affiliate of any of the Underwriters, (ii) the Company is not the parent of a member (as
defined in Rule 0120 of the National Association of Securities Dealers, Inc. (“NASD”)) and
(iii) none of the Underwriters or their respective associated persons, parents or affiliates
have a conflict of interest with the Company. For purposes of this representation and
warranty, “parent”, “affiliate” and “conflict of interest” are defined in Rule 2720 of the
Conduct Rules of the NASD.
(z) Reporting Company. The Company is subject to the reporting requirements of
Section 13 or Section 15(d) of the 1934 Act.
(aa) Appointment of Qualified Independent Underwriter. The Company hereby
confirms its engagement of ▇▇▇▇▇▇▇▇▇ & Company, Inc. as a “qualified independent
underwriter” within the meaning of Rule 2720 of the Conduct Rules of the National
Association of Securities Dealers, Inc. with respect to the offering and sale of the
Securities. ▇▇▇▇▇▇▇▇▇ & Company, Inc. solely in its capacity as qualified independent
underwriter and not otherwise, is referred to herein as the “Independent Underwriter”.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Notes. On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price set forth in Schedule B, the aggregate principal
amount of Notes set forth in Schedule A opposite the name of such Underwriter, plus any
additional principal amount of Notes which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof, and the Subsidiary Guarantors agree to
execute and deliver the Subsidiary Guarantees of such Notes.
(b) Payment. Pursuant to Rule 15c6-1(d) under the 1934 Act, settlement of this
offering will be seven business days following the execution of this Agreement. Payment of the
purchase price for, and delivery of certificates for, the Notes shall be made at the office of
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or
at such other place as shall be agreed upon by the Representative and the Company, at 6:00 A.M.
(Las Vegas time) on May 17, 2007 (unless postponed in accordance with the provisions of Section
10) (such time and date of payment and delivery being herein called the “Closing Time”).
12
Payment shall be made to the Company by wire transfer to an account or sub-account designated
by the Company prior to the Closing Time, against delivery to the Representative for the respective
accounts of the Underwriters of certificates for the Securities to be purchased by them. It is
understood that each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Securities which it has
agreed to purchase. Citi, individually and not as representative of the Underwriters, may (but
shall not be obligated to) make payment of the purchase price for the Securities to be purchased by
any Underwriter whose funds have not been received by the Closing Time, but such payment shall not
relieve such Underwriter from its obligations hereunder.
(c) Denominations; Registration. Global certificates representing the Notes shall be
delivered to DTC. Interests in the Notes will be represented by book entries on the records of DTC
as the Representative may request not less than two full business days in advance of the Closing
Time. The Company agrees to have the global certificates, if any, available for inspection by the
Representative in New York, New York, not later than 1:00 P.M. (Las Vegas time) on the business day
prior to the Closing Time.
SECTION 3. Covenants of the Company.
The Company and each of the Subsidiary Guarantors, jointly and severally, covenants with each
Underwriter as follows:
(a) Effectiveness. The Company will comply with the requirements of Rule 430B,
including without limitation filing a prospectus including the information omitted from the
Preliminary Prospectus in reliance on paragraph (a) or (b) of Rule 430B (“Rule 430B Information”),
and will notify the Representative immediately, and confirm the notice in writing, (i) of the
effectiveness of any post-effective amendment to the Registration Statement and any amendment
thereto, (ii) of the receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or any document incorporated by reference therein or otherwise deemed to be a part
thereof or for additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the initiation of any proceedings for
that purpose or of any examination pursuant to Section 8(e) of the 1933 Act concerning the
Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A
of the 1933 Act in connection with the offering of the Securities. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof at the earliest possible moment. The Company will effect the filings
required under Rule 424(b), in the manner and within the time period required by Rule 424(b)
(without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain
promptly whether the form of prospectus transmitted for filing under Rule 424(b) was received for
filing by the Commission and, in the event that it was not, it will promptly file such prospectus.
The Company will make every reasonable effort to prevent the issuance of any stop order and, if any
stop order is issued, to obtain the lifting thereof at the earliest possible moment. The Company
shall pay the required Commission filing fees relating to the Securities within the time required
by Rule 456(b)(1) (i) of the 1933 Act Regulations without regard to the proviso therein and
otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations.
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(b) Amendments. The Company will give the Representative prompt notice of its
intention to file or prepare any post-effective amendment to the Registration Statement or any
amendment or supplement to the Preliminary Prospectus or any prospectus included in the Original
Registration Statement or amendment thereto at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the Representative with
copies of any such amendment or supplement a reasonable amount of time prior to such proposed
filing or use, as the case may be, and will not file any such amendment or supplement or use any
such Prospectus to which the Representative or counsel for the Underwriters shall reasonably
object.
(c) Delivery of Registration Statement. The Company will deliver to the
Representative as many signed copies of the Original Registration Statement and of each amendment
thereto (including exhibits filed therewith or incorporated by reference therein and documents
incorporated or deemed to be incorporated by reference therein or otherwise deemed to be a part
thereof) as the Representative may reasonably request and will also deliver to the Representative a
conformed copy of the Original Registration Statement and of each amendment thereto (without
exhibits) for each of the Underwriters. The copies of the Original Registration Statement and each
amendment thereto furnished to the Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) Prospectus; Delivery of Prospectus. The Company will prepare the Pricing
Supplement and file the Pricing Supplement pursuant to Rule 433 under the 1933 Act within the time
required by such rule and file promptly all other material required to be filed by the Company with
the Commission pursuant to Rule 433. As promptly as practicable following the Applicable Time and
in any event not later than the second business day following the date hereof, the Company will
prepare and deliver to the Underwriters the Prospectus, which shall consist of the Preliminary
Prospectus as modified only by the information contained in the Pricing Supplement. The Company
will not amend or supplement the Preliminary Prospectus or the Pricing Supplement. The Company
will, during the period prior to the completion of the resale of the Securities by the
Underwriters, furnish to each Underwriter, without charge, such number of copies of the Pricing
Disclosure Package and the Prospectus and any amendments and supplements thereto and documents
incorporated by reference therein as such Underwriter may reasonably request. In addition, the
Company will furnish to each Underwriter, from time to time during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act or the respective applicable rules and regulations of
the Commission thereunder. The Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to the electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Notice and Effect of Material Events; Continued Compliance with Securities Laws.
The Company will immediately notify each Underwriter and confirm each such notice in writing, of
any material changes in or affecting the condition, financial or otherwise, or the results of
operations, business affairs or business prospects of the Company and its subsidiaries considered
as one enterprise which (i) make any statement in the Pricing Disclosure Package or
14
the Prospectus false or misleading in any material respect or (ii) if not disclosed in either
the Pricing Disclosure Package or the Prospectus would constitute a material omission therefrom.
The Company will comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the
Securities, any event shall occur or condition shall exist as a result of which it is necessary, in
the opinion of the Company, its counsel, the Underwriters or counsel for the Underwriters, to amend
the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will
not include any untrue statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or to file a new registration
statement or amend or supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement, such new registration statement
or the Prospectus comply with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters may reasonably request.
If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an
event or development as a result of which such Issuer Free Writing Prospectus conflicted or would
conflict with the information contained in the Registration Statement, any prospectus supplement
relating to the Securities or the Prospectus or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that subsequent time, not
misleading, the Company will promptly notify the Representative and, subject to Section 3(m), will
promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate
or correct such conflict, untrue statement or omission.
(f) Qualification of Securities for Offer and Sale. The Company will endeavor, in
cooperation with the Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions as the Representative may
designate; provided, however, that the Company shall not be obligated to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in
which the Notes have been so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the Applicable Time.
(g) Use of Proceeds. The Company will use the net proceeds received by it from the
sale of the Notes in conformity with the uses set forth in each of the Pricing Disclosure Package
and the Prospectus.
(h) Reporting Requirements. The Company, until the completion of the distribution of
the Securities as contemplated by this Agreement and the Prospectus, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the time periods required
by the 1934 Act and the 1934 Act Regulations. The Company will timely file such
15
reports pursuant to the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement as defined in Rule 158 for the
purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of
the 1933 Act.
(i) Restriction on Sale of Securities. During the period from the date hereof to and
including the Closing Time, the Company will not, without the Representative’s prior written
consent, directly or indirectly, issue, sell, offer to sell, grant any option for the sale of, or
otherwise dispose of, any Notes or securities similar to the Notes, or any securities convertible
into or exchangeable or exercisable for any Notes or any such similar securities, except for Notes
sold to the Underwriters pursuant to this Agreement.
(j) Consents. The Company will, from the date hereof until the Closing Time and after
the Closing Time, use its commercially reasonable efforts to obtain the requisite governmental
consents with respect to the placement of restrictions on the transfer of and the entering into
agreements not to encumber the Company’s interests in the Company Subsidiaries.
(k) Rating of Securities. The Company shall take all reasonable action necessary to
enable Standard & Poor’s Ratings Group (“S&P”), and ▇▇▇▇▇’▇ Investors Service Inc. (“Moody’s”) to
provide their respective credit ratings of the Notes.
(l) DTC. The Company will cooperate with the Representative and use its best efforts
to permit the Notes to be eligible for clearance and settlement through the facilities of DTC.
(m) Issuer Free Writing Prospectuses. The Company represents and agrees that, unless
it obtains the prior consent of the Representative, it has not made and will not make any offer
relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a free writing prospectus required to be filed with the Commission. Any such
free writing prospectus consented to by the Company and the Representative is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees
that it will treat each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus and
has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free
Writing Prospectus, including timely filing with the Commission where required, legending and
record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there
occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the Registration Statement, the
Pricing Disclosure Package or the Prospectus, the Company has promptly notified or will promptly
notify the Underwriters and has promptly amended or supplemented or will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such
conflict.
(n) Illinois Approval. From and after the date of this Agreement, the Company and
Nevada Landing Partnership, an Illinois general partnership (“Nevada Landing”), shall use their
commercially reasonable best efforts to obtain the approval of the Illinois Gaming Board for Nevada
Landing to become a Subsidiary Guarantor and guarantee the Notes (the “Illinois Approval”).
16
(o) Stabilization. The Company and the Company Subsidiaries agree not to take,
directly or indirectly, any action which constitutes or is designed to cause or result in any
action prohibited by Regulation M under the 1934 Act, in connection with the distribution of the
Notes.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and filing of the
Registration Statement as originally filed, the Pricing Disclosure Package and Prospectus
(including financial statements and any schedules or exhibits and any document incorporated therein
by reference) and of each amendment or supplement thereto, (ii) the preparation, printing and
delivery of this Agreement, the Indenture and the Supplemental Indenture, (iii) the preparation,
issuance and delivery of the certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company’s counsel and accountants, (v) the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(f) hereof, including
filing fees and the fees and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of a Blue Sky Survey, if any, (vi) the printing and delivery
to the Underwriters of copies of the Original Registration Statement and of each amendment thereto,
and of the Pricing Disclosure Package and Prospectus and any amendments or supplements thereto,
(vii) the printing and delivery to the Underwriters of copies of a Blue Sky Survey, (viii) the fees
and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture as supplemented by the Supplemental Indenture and the Notes, (ix) any
fees payable in connection with the rating of the Notes and (x) the fees and expenses of the
Independent Underwriter.
(b) Termination of Agreement. If this Agreement is terminated by the Representative
in accordance with the provisions of Section 5 or Section 9(a) hereof, the Company
shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company and the Subsidiary Guarantors herein contained, to the performance by the Company and the
Subsidiary Guarantors of their obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has become
effective and no stop order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission,
and any request on the part of the Commission for additional information shall have been complied
with to the reasonable satisfaction of counsel to the Underwriters. A prospectus containing the
Rule 430B Information shall have been filed with the Commission in the manner and within the time
period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment
providing such information shall have been filed and become effective in accordance with the
requirements of Rule 430B).
(b) Opinions of Counsel. At the Closing Time, the Underwriters shall have received:
17
(1) The favorable opinion, dated as of the Closing Time, of Christensen, Glaser, Fink,
Jacobs, Weil & ▇▇▇▇▇▇▇, LLP, counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, and covering the matters described in Exhibit A
hereto.
(2) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Nevada counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, and covering the matters described in Exhibit B hereto.
(3) The favorable opinion, dated as of the Closing Time, of Fox Rothschild LLP, New
Jersey counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, and covering the matters described in Exhibit C hereto.
(4) The favorable opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC, Michigan counsel to the Company, in
form and substance satisfactory to counsel for the Underwriters, and covering the matters
described in Exhibit D hereto.
(5) The favorable opinion of Butler, Snow, O’Mara, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC, Mississippi
counsel to the Company, in form and substance satisfactory to counsel for the Underwriters,
and covering the matters described in Exhibit E hereto.
(6) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, counsel for the Underwriters, and covering the matters described in Exhibit F
hereto.
(7) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant
General Counsel of the Company, and covering the matters described in Exhibit G
hereto.
(8) The favorable opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Ltd.,
Illinois counsel to the Company, in form and substance satisfactory to counsel for the
Underwriters, and covering the matters described in Exhibit H hereto.
In giving their opinions required by subsections (b)(1) and (b)(6),
respectively, of this Section, Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP and
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall each additionally state that nothing has come to their attention
that would lead them to believe that (except for financial statements and schedules and other
financial or statistical data included or incorporated by reference therein and that part of the
Registration Statement which constitutes the Trustee’s Statement of Eligibility and Qualification
under the 1939 Act (Form T-1), as to which counsel need make no statement) (i) the Registration
Statement, at the time it became effective (which, for purpose of the opinion shall mean May 9,
2006), contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading, (ii) the
Pricing Disclosure Package, at the Applicable Time, included an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not misleading or
(iii) the Prospectus, as of its date or as of the Closing Date, included or includes an untrue
statement of a material fact or
18
omitted to state a material fact required to be stated therein or necessary to make the
statements there, in light of the circumstances under which they were made, not misleading.
(c) Officers’ Certificate. Subsequent to the execution and delivery of this Agreement
and prior to the Closing Time, there shall not have been any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or business prospects of
the Company and the Company Subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business, and the Representative shall have received a certificate of the
president or a vice president of the Company and of the secretary or the assistant secretary of the
Company, dated as of the Closing Time, to the effect that (i) there has been no such material
adverse change, (ii) the representations and warranties in Section 1 hereof were true and
correct at the Applicable Time and are true and correct on and as of the Closing Time with the
same force and effect as though expressly made at and as of the Closing Time, (iii) except to the
extent disclosed in each of the Pricing Disclosure Package and the Prospectus with respect to (A)
the placement of restrictions on the transfer of and the entering into agreements not to encumber
the Company’s interests in certain Company Subsidiaries licensed or registered under the Nevada
Gaming Laws and (B) the receipt of the Illinois Approval relating to Nevada Landing, all
authorizations, approval or consents under the Gaming Laws necessary in connection with the
offering, issuance and sale of the Notes and the execution of the Subsidiary Guarantees have been
obtained, (iv) the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied at or prior to the Closing Time and (v) no stop order suspending
the effectiveness of the Registration Statement or notice under Rule 401(g)(2) that would prevent
its use has been issued and no proceedings for that purpose have been initiated or threatened by
the Commission.
(d) Accountants’ Comfort Letter. At the time of the execution of this Agreement, the
Representative shall have received from Deloitte & Touche LLP, independent public accountants, a
letter dated such date, in form and substance satisfactory to the Representative, to the effect
that (i) they are independent public accountants with respect to the Company and its subsidiaries
within the meaning of the 1933 Act, the 1934 Act and the regulations promulgated thereunder; (ii)
it is their opinion that the financial statements and supporting schedules included in the
Registration Statement and the Prospectus and covered by their opinions therein comply as to form
in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act
and the regulations promulgated thereunder; (iii) based upon limited procedures set forth in detail
in such letter, nothing has come to their attention which causes them to believe that (A) the
unaudited financial statements and supporting schedules of the Company and its subsidiaries
included in the Registration Statement and the Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the
regulations promulgated thereunder or are not presented in conformity with generally accepted
accounting principles applied on a basis consistent with that of the audited financial statements
included in the Registration Statement, or (B) the unaudited amounts of revenues, operating income,
income from operations and net income set forth under “Selected Consolidated Financial and Other
Data” in the Prospectus were not determined on a basis consistent with that used in determining the
corresponding amounts in the audited financial statements included in the Registration Statement
and the Prospectus; and (iv) in addition to the examination referred to in their opinions and the
limited procedures referred to in clause (iii) above, they have carried out certain specified
procedures, not constituting an audit,
19
with respect
to certain amounts, percentages and financial information which are included in the
Registration Statement and Prospectus and which are specified by the Representative, and have found
such amounts, percentages and financial information to be in agreement with the relevant
accounting, financial and other records of the Company and its subsidiaries identified in such
letter.
(e) Bring-down Comfort Letter. At the Closing Time, the Representative shall have
received from Deloitte & Touche LLP, independent public accountants, a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements made in the letter furnished pursuant
to subsection (d) of this Section 6, except that the specified date referred to
shall be a date not more than five days prior to the Closing Time.
(f) Maintenance of Rating. At the Closing Time, the Notes shall be rated at least Ba2
by ▇▇▇▇▇’▇ Investors Service, Inc. and BB by Standard & Poor’s Ratings Group, and the Company shall
have delivered to the Representative a letter, dated as of or prior to the Closing Time, from each
such rating agency, or other evidence satisfactory to the Representative, confirming that the Notes
have such ratings; and, subsequent to the execution and delivery of this Agreement and prior to the
Closing Time, (A) there shall not have occurred a downgrading in the rating or outlook assigned to
the Notes or any of the Company’s other debt securities by any nationally recognized securities
rating agency and (B) no such securities rating agency shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of the Notes or any
of the Company’s other debt securities.
(g) Additional Documents. At the Closing Time, counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of the Securities as herein contemplated shall be
satisfactory in form and substance to the Representative and counsel for the Underwriters.
(h) Termination of Agreement. If any condition specified in this Section 6
shall not have been fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Representative by notice to the Company at any time at or prior to the Closing
Time, and such termination shall be without liability of any party to any other party except as
provided in Section 4 hereof.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The Company and the Subsidiary Guarantors,
jointly and severally, agree to indemnify and hold harmless (i) each Underwriter, (ii) each person,
if any, who controls any Underwriter within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act and (iii) the respective officers, directors, partners, employees,
representatives, affiliates and agents of any Underwriter or any person referenced in clause (ii),
from and against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with defending or
20
investigating any such action or claim, which expenses shall be paid as incurred) caused by any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof (including any information deemed to be a part thereof pursuant
to Rule 430B or Rule 430C of the 1933 Act Regulations), any Issuer Free Writing Prospectus, any
preliminary prospectus (including the Preliminary Prospectus), the Pricing Disclosure Package or
the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use therein (it being understood and agreed that the only such information furnished
by an Underwriter consists of the information described as such in this Section 6).
(b) Indemnification of Company. Each Underwriter agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of either Section 15
of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity in
Section 6(a) from the Company to such Underwriter, but only with reference to information
relating to such Underwriter furnished to the Company in writing by such Underwriter through the
Representative expressly for use in the Registration Statement, any Issuer Free Writing Prospectus,
any preliminary prospectus (including the Preliminary Prospectus), the Pricing Disclosure Package
or the Prospectus or any amendments or supplements thereto (it being understood and agreed that
the only such information furnished by an Underwriter consists of the information described as such
in this Section 6).
(c) Indemnification Procedures. In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which indemnity may be sought
pursuant to either Section 6(a) or 6(b), such person (the “Indemnified Party”)
shall promptly notify the person from whom such indemnity may be sought (the “Indemnifying Party”)
in writing and the Indemnifying Party, upon request of the Indemnified Party, shall retain counsel
reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others
the Indemnifying Party may designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any Indemnified Party shall have
the right to retain its own counsel, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party, unless (i) the Indemnifying Party and the Indemnified Party
shall have mutually agreed in writing to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the Indemnifying Party and the
Indemnified Party and representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood that the Indemnifying
Party shall not, in respect of the legal expenses of any Indemnified Party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of
more than one separate firm (in addition to any local counsel) for all such indemnified parties and
that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by the Representative, in the case of parties indemnified pursuant to
Section 6(a) above, and by the Company, in the
21
case of parties indemnified pursuant to
Section 6(b) above. Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to Section 6(h) hereof in
respect of such action or proceeding, then in addition to such separate firm for the Indemnified
Parties, the Indemnifying Parties shall be liable for the reasonable fees and expenses of not more
than one separate firm (in addition to any local counsel) for the Independent Underwriter in its
capacity as a “qualified independent underwriter” and all persons, if any, who control the
Independent Underwriter within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act. The Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the Indemnifying Party agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an Indemnified Party shall have requested an Indemnifying Party
to reimburse the Indemnified Party for fees and expenses of counsel as contemplated by the first
and second sentences of this paragraph, the Indemnifying Party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such Indemnifying Party of the aforesaid request
and (ii) such Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with
such request prior to the date of such settlement. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a party and indemnity
could have been sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims that are the subject
matter of such proceeding.
(d) Contribution. To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an Indemnified Party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each Indemnifying Party under such
paragraph, in lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and the Underwriters on the other hand from the offering of the Notes,
or (ii) if the allocation provided by Section 6(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in
Section 6(d)(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Underwriters on the other
hand in connection with the offering of the Notes shall be deemed to be in the same respective
proportions as the net proceeds from the offering of such Notes (before deducting expenses)
received by the Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Price to Public of the Notes. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Underwriters’ and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters’ respective obligations to
22
contribute pursuant to this Section 6 are several in proportion to the respective
principal amounts of Notes they have purchased hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in Section 6(d). The
amount paid or payable by an Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Underwriter shall be required to
contribute any amount in excess of the amount by which the underwriting discounts or commissions
applicable to the Notes underwritten by it and distributed to the public exceeds the amount of any
damages that such Underwriters has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to
contribution from any person who was not liable for any of such fraudulent misrepresentation. The
remedies provided for in this Section 6 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any Indemnified Party at law or in equity. The
obligations of the Underwriters to contribute pursuant to this Section 6 are several in
proportion to their respective purchase obligations hereunder, and not joint.
(f) The indemnity and contribution provisions contained in this Section 6 and the
representations, warranties and other statements of the Company and the Subsidiary Guarantors
contained in this Agreement shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter
or any person controlling any Underwriter or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the Notes.
(g) It is understood and agreed that the only information furnished by any Underwriter
consists of the following information in the Prospectus furnished on behalf of each Underwriter:
paragraphs five (second sentence only) and six under the caption “Underwriting”.
(h) The Company and the Subsidiary Guarantors, jointly and severally, also agree to indemnify
and hold harmless the Independent Underwriter and each person, if any, who controls the Independent
Underwriter within the meaning of either Section 15 of the Act, or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments incurred as a
result of the Independent Underwriter’s participation as a “qualified independent underwriter”
within the meaning of Rule 2720 of the NASD’s Conduct Rules in connection with the offering of the
Notes, except for any losses, claims, damages, liabilities, and judgments resulting from the
Independent Underwriter’s, or such controlling person’s, willful misconduct.
SECTION 7. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or contained in
certificates of officers of the Company and the Subsidiary Guarantors submitted pursuant hereto,
23
shall remain operative and in full force and effect, regardless of any investigation made by
or on behalf of any Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 8. Termination of Agreement.
(a) Termination; General. This Agreement shall be subject to termination by notice
given by the Representative to the Company, if (a) after the execution and delivery of this
Agreement and prior to the Closing Time (i) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York Stock Exchange, the American
Stock Exchange or the NASD, (ii) trading of any securities of the Company shall have been suspended
on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York State authorities,
(iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial
markets or any calamity or crisis that, in the reasonable judgment of the Representative, is
material and adverse or (v) there has been, since the date hereof or since the respective dates as
of which information is given in the Prospectus or the Pricing Disclosure Package, any material
adverse change in the condition, financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company and the Company Subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business and (b) in the case of any of
the events specified in Sections 8(a)(i) through 8(a)(iv), such event, singly or
together with any other such event, makes it, in the sole judgment of the Representative,
impracticable to proceed with the offering, sale or delivery of the Securities on the terms and in
the manner contemplated in the Registration Statement, the Pricing Disclosure Package and the
Prospectus.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party except as provided in
Section 4 hereof. Notwithstanding any such termination, the provisions of Section
6 shall remain in effect.
SECTION 9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time to purchase the Securities which it or they are
obligated to purchase under this Agreement (the “Defaulted Securities”), the Representative shall
have the right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting Underwriters, or any other Underwriters, to purchase all, but not less than all, of
the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth;
if, however, the Representative shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the Notes, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
24
(b) if the number of Defaulted Securities exceeds 10% of the Notes, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default. In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall have the right to
postpone the Closing Time for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or arrangements. As
used herein, the term “Underwriter” includes any person substituted for an Underwriter under this
Section.
SECTION 10. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to the Representative c/o
Citigroup Global Markets Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Office
of the General Counsel, with a copy to ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, and notices to the Company
shall be directed to it at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Vice President, General Counsel and Secretary, with a copy to
Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
SECTION 11. Parties. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or corporation, other than the
parties hereto and their respective successors and the controlling persons, officers and directors
referred to in Section 6 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the parties hereto and their respective successors, and said controlling
persons, officers and directors and their heirs and legal representatives, and for the benefit of
no other person, firm or corporation. No purchaser of Notes from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
SECTION 12. Governing Law and Time. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements made and to be
performed in said State. Specified times of day refer to New York City time unless otherwise
expressly provided herein.
SECTION 13. Effect of Headings. The Article and Section headings herein and the Table
of Contents are for convenience only and shall not affect the construction hereof.
SECTION 14. Agreement Regarding Tracinda. The Underwriters hereby agree that in the
event (i) there is any breach or default or alleged breach or default by the Company under this
Agreement or (ii) the Underwriters have or may have any claim arising from or relating to the terms
hereof, the Underwriters shall not commence any lawsuit or otherwise seek to impose
25
any liability whatsoever against ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or Tracinda Corporation (collectively,
"Tracinda”), unless Tracinda shall have commenced a lawsuit or otherwise initiated any claim
against the Underwriters arising from or relating to this Agreement (a “Tracinda Action”). The
Underwriters hereby further agree that unless a Tracinda Action has been commenced: (i) Tracinda
shall not have any liability whatsoever with respect to this Agreement or any matters relating to
or arising from this Agreement, including any alleged breach of or default under this Agreement by
the Company; and (ii) the Underwriters shall not assert or permit any party claiming through it to
assert a claim or impose any liability against Tracinda as to any matter or thing arising out of or
relating to this Agreement or any alleged breach or default under this Agreement by the Company.
In addition, the Underwriters agree that Tracinda is not a party to this Agreement.
SECTION 15. No Fiduciary Responsibility. Each of the Company and the Subsidiary
Guarantors acknowledges and agrees that in connection with all aspects of each transaction
contemplated by this Agreement (collectively, the “Transactions”), the Company and the Subsidiary
Guarantors and each Underwriter and any affiliate through which it may be acting (each, a
"Transaction Affiliate”) have an arms length business relationship that creates no fiduciary duty
on the part of each Underwriter or any Transaction Affiliate and each expressly disclaims any
fiduciary relationship with respect to any and all aspects of the Transactions.
SECTION 16. Entire Agreement. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the parties hereto with respect to the subject
matter hereof.
[signature page follows]
26
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Underwriters and the Company in accordance with its
terms.
| Very truly yours, | ||||
| MGM MIRAGE | ||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Title: Senior Vice President, Assistant | ||||
| General Counsel and Assistant Secretary | ||||
| Joined in and agreed to and accepted by the | ||
| following Subsidiary Guarantors as of the date first above written: |
| 1. | AC HOLDING CORP., a Nevada corporation | |||
| 2. | AC HOLDING CORP. II, a Nevada corporation | |||
| 3. | THE ▇▇▇▇▇ ▇▇▇▇ 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. | BOARDWALK CASINO, LLC, a Nevada limited liability company | |||
| 8. | BUNGALOW, INC., a Mississippi corporation | |||
| 9. | CIRCUS CIRCUS CASINOS, INC., a Nevada corporation | |||
| 10. | CIRCUS CIRCUS MISSISSIPPI, INC., a Mississippi corporation | |||
| 11. | CITYCENTER BOUTIQUE RESIDENTIAL DEVELOPMENT, LLC, a Nevada limited liability company | |||
| 12. | CITYCENTER ▇▇▇▇▇▇ DEVELOPMENT, LLC, a Nevada limited liability company | |||
| 13. | CITYCENTER HOTEL & CASINO, LLC, a Nevada limited liability company | |||
| 14. | CITYCENTER REALTY CORPORATION, a Nevada corporation | |||
| 15. | CITYCENTER VDARA DEVELOPMENT, LLC, a Nevada limited liability company | |||
| 16. | CITYCENTER VEER TOWERS DEVELOPMENT, LLC, a Nevada limited liability company (f/k/a CityCenter Veer West Development, LLC) |
|||
| 17. | COLORADO BELLE CORP., a Nevada corporation | |||
| 18. | COUNTRY STAR LAS VEGAS, LLC, a Nevada limited liability company | |||
| 19. | DESTRON, INC., a Nevada corporation | |||
| 20. | DIAMOND GOLD, INC., a Nevada corporation | |||
| 21. | EDGEWATER HOTEL CORPORATION, a Nevada corporation | |||
| 22. | FALLEN OAK, LLC, a Mississippi limited liability company | |||
| 23. | GALLEON, INC., a Nevada corporation | |||
| 24. | GOLD STRIKE AVIATION, INCORPORATED, a Nevada corporation | |||
| 25. | GOLD STRIKE FUEL COMPANY, a Nevada partnership | |||
| By: | OASIS DEVELOPMENT COMPANY, INC., a Nevada corporation, Partner |
|||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| 26. | GOLD STRIKE L.V., a Nevada partnership | |||
| By: | DIAMOND GOLD INC., a Nevada corporation, Partner |
|||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| 27. | GOLDSTRIKE FINANCE COMPANY, INC., a Nevada corporation | |||
| 28. | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation | |||
| 29. | GRAND LAUNDRY, INC., a Nevada corporation | |||
| 30. | ▇▇▇▇ DEVELOPMENT COMPANY, a Nevada partnership | |||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| 31. | ▇▇▇▇ DEVELOPMENT NORTH, a Nevada partnership | |||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | DIAMOND GOLD INC., a Nevada corporation, Partner |
|||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| 32. | ▇▇▇▇ DEVELOPMENT WEST, a Nevada partnership | |||
| By: | DIAMOND GOLD INC., a Nevada corporation, Partner |
|||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| 33. | ▇▇▇▇ FUEL COMPANY WEST, a Nevada partnership | |||
| By: | OASIS DEVELOPMENT COMPANY, INC., a Nevada corporation, Partner |
|||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| 34. | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation | |||
| 35. | LV CONCRETE CORP., a Nevada corporation | |||
| 36. | MAC, CORP., a New Jersey corporation | |||
| 37. | MANDALAY CORP., a Nevada corporation | |||
| 38. | MANDALAY MARKETING AND EVENTS, a Nevada corporation | |||
| 39. | MANDALAY PLACE, a Nevada corporation | |||
| 40. | MANDALAY RESORT GROUP, a Nevada corporation | |||
| 41. | METROPOLITAN MARKETING, LLC, a Nevada limited liability company | |||
| 42. | MGM GRAND ATLANTIC CITY, INC., a New Jersey corporation | |||
| 43. | MGM GRAND CONDOMINIUMS, LLC, a Nevada limited liability company | |||
| 44. | MGM GRAND CONDOMINIUMS II, LLC, a Nevada limited liability company | |||
| 45. | MGM GRAND CONDOMINIUMS III, LLC, a Nevada limited liability company | |||
| 46. | MGM GRAND CONDOMINIUMS EAST — TOWER 1, LLC, | |||
| a Nevada limited liability company | ||||
| 47. | MGM GRAND DETROIT, INC., a Delaware corporation | |||
| 48. | MGM GRAND HOTEL, LLC, a Nevada limited liability company | |||
| 49. | MGM GRAND NEW YORK, LLC, a Nevada limited liability company | |||
| 50. | MGM GRAND RESORTS, LLC, a Nevada limited liability company | |||
| 51. | MGM GRAND RESORTS DEVELOPMENT, a Nevada corporation | |||
| 52. | MGM ▇▇▇▇, LLC, a Nevada limited liability company | |||
| 53. | MGM MIRAGE ADVERTISING, INC., a Nevada corporation | |||
| 54. | MGM MIRAGE AIRCRAFT HOLDINGS, LLC, a Nevada limited liability company |
|||
| 55. | MGM MIRAGE AVIATION CORP., a Nevada corporation | |||
| 56. | MGM MIRAGE CORPORATE SERVICES, a Nevada corporation | |||
| 57. | MGM MIRAGE DESIGN GROUP, a Nevada corporation | |||
| 58. | MGM MIRAGE DEVELOPMENT, LLC, a Nevada limited liability company | |||
| 59. | MGM MIRAGE ENTERTAINMENT AND SPORTS, a Nevada corporation | |||
| 60. | MGM MIRAGE INTERNATIONAL MARKETING, INC., a Nevada corporation | |||
| 61. | MGM MIRAGE MANAGEMENT AND TECHNICAL SERVICES, LLC, a Nevada limited liability company |
|||
| 62. | MGM MIRAGE MANUFACTURING CORP., a Nevada corporation | |||
| 63. | MGM MIRAGE OPERATIONS, INC., a Nevada corporation | |||
| 64. | MGM MIRAGE RETAIL, a Nevada corporation | |||
| 65. | MH, INC., a Nevada corporation | |||
| 66. | M.I.R. TRAVEL, a Nevada corporation | |||
| 67. | THE MIRAGE CASINO-HOTEL, a Nevada corporation | |||
| 68. | MIRAGE LAUNDRY SERVICES CORP., a Nevada corporation | |||
| 69. | MIRAGE LEASING CORP., a Nevada corporation | |||
| 70. | MIRAGE RESORTS, INCORPORATED, a Nevada corporation | |||
| 71. | MMNY LAND COMPANY, INC., a New York corporation | |||
| 72. | MRG VEGAS PORTAL, INC., a Nevada corporation | |||
| 73. | MRGS CORP., a Nevada corporation | |||
| 74. | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation | |||
| 75. | NEVADA LANDING PARTNERSHIP, a Nevada partnership | |||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | DIAMOND GOLD, INC., a Nevada corporation, Partner |
|||
| 76. | NEW CASTLE CORP., a Nevada corporation | |||
| 77. | NEW PRMA LAS VEGAS, INC., a Nevada corporation | |||
| 78. | NEW YORK-NEW YORK HOTEL & CASINO, LLC, a Nevada limited liability company | |||
| 79. | NEW YORK-NEW YORK TOWER, LLC, a Nevada limited liability company | |||
| 80. | OASIS DEVELOPMENT COMPANY, INC., a Nevada corporation | |||
| 81. | PLANE TRUTH, LLC, a Nevada limited liability company | |||
| 82. | PRMA LAND DEVELOPMENT COMPANY, a Nevada corporation | |||
| 83. | PRMA, LLC, a Nevada limited liability company | |||
| 84. | PROJECT CC, LLC, a Nevada limited liability company | |||
| 85. | RAILROAD PASS INVESTMENT GROUP, a Nevada partnership | |||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| 86. | RAMPARTS, INC., a Nevada corporation | |||
| 87. | RAMPARTS INTERNATIONAL, a Nevada corporation | |||
| 88. | RESTAURANT VENTURES OF NEVADA, INC., a Nevada corporation | |||
| 89. | THE SIGNATURE CONDOMINIUMS, LLC, a Nevada limited liability company | |||
| 90. | SIGNATURE TOWER I, LLC, a Nevada limited liability company | |||
| 91. | SLOTS-A-FUN, INC., a Nevada corporation | |||
| 92. | TREASURE ISLAND CORP., a Nevada corporation | |||
| 93. | VDARA CONDO HOTEL, LLC, a Nevada limited liability company | |||
| 94. | VICTORIA PARTNERS, a Nevada partnership | |||
| By: | MRGS CORP., a Nevada corporation, Partner |
|||
| By: | GOLD STRIKE L.V., a Nevada partnership, Partner |
|||
| By: | M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation, Partner |
|||
| By: | DIAMOND GOLD, INC., a Nevada corporation, Partner |
|||
| 95. | VIDIAD, a Nevada corporation | |||
[The remainder of this page is intentionally left blank. Signature on the following page.]
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Assistant Secretary or Attorney-in-Fact, as applicable, of each of the foregoing |
|||
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
| Title: | Director | |||
For itself and as Representative of the other Underwriters
named in Schedule A hereto.
named in Schedule A hereto.
Schedule A
Underwriters
| Underwriter | Principal Amount of Notes | |||
Citigroup Global Markets Inc. |
$ | 105,000,000 | ||
Banc of America Securities LLC |
$ | 105,000,000 | ||
Deutsche Bank Securities, Inc. |
$ | 105,000,000 | ||
Greenwich Capital Markets, Inc. |
$ | 105,000,000 | ||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
$ | 105,000,000 | ||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
$ | 37,500,000 | ||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
$ | 37,500,000 | ||
Barclays Capital Inc. |
$ | 22,500,000 | ||
BNP Paribas Securities Corp. |
$ | 22,500,000 | ||
Commerzbank Capital Markets Corp. |
$ | 22,500,000 | ||
Daiwa Securities America Inc. |
$ | 22,500,000 | ||
UBS Securities LLC |
$ | 22,500,000 | ||
Wachovia Capital Markets, LLC |
$ | 22,500,000 | ||
▇▇▇▇▇▇▇▇▇ & Company, Inc. |
$ | 15,000,000 | ||
Schedule B
MGM MIRAGE
$750,000,000 OF 7.50% SENIOR NOTES DUE 2016
1. The initial offering price shall be 100% of the principal amount thereof, plus accrued interest,
if any, from the date of issuance. After the initial offering, the offering price may be changed.
2. The purchase price to be paid to the Company by the Underwriters for the Notes shall be 99.375%
of the principal amount thereof plus accrued interest, if any, from the date of issuance.
3. The interest rate on the Notes shall be 7.50% per annum.
Schedule C
Issuer Free Writing Prospectus
Issuer Free Writing Prospectus Filed Pursuant to Rule 433
supplementing the
Preliminary Prospectus Supplement dated May 8, 2007
Registration No. 333-133925
Pricing Term Sheet
May 8, 2007
supplementing the
Preliminary Prospectus Supplement dated May 8, 2007
Registration No. 333-133925
Pricing Term Sheet
May 8, 2007
Issuer:
|
MGM MIRAGE | |
Size:
|
$750,000,000 | |
Description:
|
Senior Notes | |
Maturity:
|
June 1, 2016 | |
Coupon:
|
7.50% | |
Public Offering Price:
|
100% of face amount, plus accrued interest, if any | |
Net Proceeds:
|
$750,000,000 (before transaction expenses) | |
Yield:
|
7.50% | |
Interest Payment Dates:
|
June 1st and December 1st commencing December 1, 2007 | |
Redemption Provisions:
|
Make-whole call at the Adjusted Treasury Rate plus 50 basis points | |
Settlement date:
|
May 17, 2007 (T+7) | |
CUSIP:
|
552953 BC4 | |
Ratings:
|
Ba2 by ▇▇▇▇▇’▇ Investors Service, Inc., BB by Standard & Poor’s Ratings Services | |
Bookrunners:
|
Citi, Banc of America Securities LLC, Deutsche Bank Securities, JPMorgan, RBS Greenwich Capital | |
Co-managers:
|
Barclays Capital, BNP PARIBAS, Commerzbank Corporates & Markets, Daiwa Securities America Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, UBS Investment Bank, Wachovia Securities | |
Allocation: |
| Underwriter | Principal Amount | |||
Citigroup Global Markets Inc. |
$ | 105,000,000 | ||
Banc of America Securities LLC |
105,000,000 | |||
Deutsche Bank Securities, Inc. |
105,000,000 | |||
Greenwich Capital Markets, Inc. |
105,000,000 | |||
▇.▇. ▇▇▇▇▇▇ Securities Inc. |
105,000,000 | |||
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated |
37,500,000 | |||
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated |
37,500,000 | |||
| Underwriter | Principal Amount | |||
Barclays Capital Inc. |
22,500,000 | |||
BNP Paribas Securities Corp. |
22,500,000 | |||
Commerzbank Capital Markets Corp. |
22,500,000 | |||
Daiwa Securities America Inc. |
22,500,000 | |||
UBS Securities LLC |
22,500,000 | |||
Wachovia Capital Markets, LLC |
22,500,000 | |||
▇▇▇▇▇▇▇▇▇ & Company, Inc. |
15,000,000 | |||
Total |
$ | 750,000,000 | ||
The issuer has filed a registration statement (including a prospectus) with the SEC for the
offering to which this communication relates. Before you invest, you should read the prospectus in
that registration statement and other documents the issuer has filed with the SEC for more complete
information about the issuer and this offering. You may get these documents for free by visiting
▇▇▇▇▇ on the SEC Web site at ▇▇▇.▇▇▇.▇▇▇. Alternatively, Citigroup Global Markets Inc., an
underwriter, will arrange to send you the prospectus if you request it by calling toll free (▇▇▇)
▇▇▇-▇▇▇▇.
Schedule D
Company Subsidiaries
1.
|
AC HOLDING CORP., a Nevada corporation | |
2.
|
AC HOLDING CORP. II, a Nevada corporation | |
3.
|
BEAU RIVAGE DISTRIBUTION CORP., a Mississippi corporation | |
4.
|
BEAU RIVAGE RESORTS, INC., a Mississippi corporation | |
5.
|
BELLAGIO, LLC, a Nevada limited liability company | |
6.
|
BOARDWALK CASINO, LLC, a Nevada limited liability company | |
7.
|
BUNGALOW, INC., a Mississippi corporation | |
8.
|
CIRCUS CIRCUS CASINOS, INC., a Nevada corporation | |
9.
|
CIRCUS CIRCUS MISSISSIPPI, INC., a Mississippi corporation | |
10.
|
CIRCUS CIRCUS NEW JERSEY, INC., a New Jersey corporation | |
11.
|
CITYCENTER REALTY CORPORATION, a Nevada corporation | |
12.
|
CITYCENTER BOUTIQUE RESIDENTIAL DEVELOPMENT, LLC, a Nevada limited liability company | |
13.
|
CITYCENTER ▇▇▇▇▇▇ DEVELOPMENT, LLC, a Nevada limited liability company | |
14.
|
CITYCENTER HOTEL & CASINO, LLC, a Nevada limited liability company | |
15.
|
CITYCENTER VDARA DEVELOPMENT, LLC, a Nevada limited liability company | |
16.
|
CITYCENTER VEER TOWERS DEVELOPMENT, LLC, a Nevada limited liability company (f.k.a. CITYCENTER VEER WEST DEVELOPMENT, LLC, a Nevada limited liability company) | |
17.
|
COLORADO BELLE CORP., a Nevada corporation | |
18.
|
COUNTRY STAR LAS VEGAS, LLC, a Nevada limited liability company | |
19.
|
DESTRON, INC., a Nevada corporation | |
20.
|
DIAMOND GOLD, INC., a Nevada corporation | |
21.
|
EDGEWATER HOTEL CORPORATION, a Nevada corporation | |
22.
|
FALLEN OAK, LLC, a Mississippi limited liability company | |
23.
|
GALLEON, INC., a Nevada corporation | |
24.
|
GO VEGAS, a Nevada corporation | |
25.
|
GOLD STRIKE AVIATION, INCORPORATED, a Nevada corporation | |
26.
|
GOLD STRIKE FUEL COMPANY, a Nevada partnership | |
27.
|
GOLD STRIKE L.V., a Nevada partnership | |
28.
|
GOLDSTRIKE FINANCE COMPANY, INC., a Nevada corporation | |
29.
|
GOLDSTRIKE INVESTMENTS, INCORPORATED, a Nevada corporation | |
30.
|
GRAND LAUNDRY, INC., a Nevada corporation | |
31.
|
▇▇▇▇ DEVELOPMENT COMPANY, a Nevada partnership | |
32.
|
▇▇▇▇ DEVELOPMENT NORTH, a Nevada partnership | |
33.
|
▇▇▇▇ DEVELOPMENT WEST, a Nevada partnership | |
34.
|
▇▇▇▇ FUEL COMPANY WEST, a Nevada partnership | |
35.
|
LAST CHANCE INVESTMENTS, INCORPORATED, a Nevada corporation | |
36.
|
LV CONCRETE CORP., a Nevada corporation | |
37.
|
M3 NEVADA INSURANCE COMPANY, a Nevada corporation | |
38.
|
M.I.R. TRAVEL, a Nevada corporation | |
39.
|
M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation |
40.
|
MAC, CORP., a New Jersey corporation | |
41.
|
MANDALAY CORP., a Nevada corporation | |
42.
|
MANDALAY MARKETING AND EVENTS, a Nevada corporation | |
43.
|
MANDALAY PLACE, a Nevada corporation | |
44.
|
MANDALAY RESORT GROUP, a Nevada corporation | |
45.
|
METROPOLITAN MARKETING, LLC, a Nevada limited liability company | |
46.
|
MGM GRAND (INTERNATIONAL), PTE LTD., a Singapore corporation | |
47.
|
MGM GRAND (MACAO) LIMITED, a Macao S.A.R. corporation | |
48.
|
MGM GRAND ATLANTIC CITY, INC., a New Jersey corporation | |
49.
|
MGM GRAND BIRMINGHAM LIMITED, an English corporation | |
50.
|
MGM GRAND CONDOMINIUMS, LLC, a Nevada limited liability company | |
51.
|
MGM GRAND CONDOMINIUMS II, LLC, a Nevada limited liability company | |
52.
|
MGM GRAND CONDOMINIUMS III, LLC, a Nevada limited liability company | |
53.
|
MGM GRAND CONDOMINIUMS EAST-TOWER I, LLC, a Nevada limited liability company | |
54.
|
MGM GRAND DETROIT, LLC, a Delaware limited liability company | |
55.
|
MGM GRAND DETROIT II, LLC, a Delaware limited liability company | |
56.
|
MGM GRAND DETROIT, INC., a Delaware corporation | |
57.
|
MGM GRAND HOTEL, LLC, a Nevada limited liability company | |
58.
|
MGM GRAND NEW YORK, LLC, a Nevada limited liability company | |
59.
|
MGM GRAND NEWCASTLE (HOLDINGS) LTD., a United Kingdom corporation | |
60.
|
MGM GRAND NEWCASTLE LTD., a Welsh corporation | |
61.
|
MGM GRAND PARADISE (HK) LIMITED, a Hong Kong corporation | |
62.
|
MGM GRAND PARADISE S.A., a Macau corporation | |
63.
|
MGM GRAND RESORTS, LLC, a Nevada limited liability company | |
64.
|
MGM GRAND RESORTS DEVELOPMENT (F.K.A. MANDALAY DEVELOPMENT), a Nevada corporation | |
65.
|
MGM GRAND-CAPITALAND PTE LTD, a Singapore corporation | |
66.
|
MGM ▇▇▇▇, LLC, a Nevada limited liability company | |
67.
|
MGM MIRAGE ADVERTISING, INC., a Nevada corporation | |
68.
|
MGM MIRAGE AIRCRAFT HOLDINGS, LLC, a Nevada limited liability company | |
69.
|
MGM MIRAGE AVIATION CORP., a Nevada corporation | |
70.
|
MGM MIRAGE CHINA HOLDINGS LIMITED, a Hong Kong corporation | |
71.
|
MGM MIRAGE CORPORATE SERVICES, a Nevada corporation | |
72.
|
MGM MIRAGE DESIGN GROUP, a Nevada corporation | |
73.
|
MGM MIRAGE DEVELOPMENT, LLC, a Nevada corporation | |
74.
|
MGM MIRAGE DEVELOPMENT, LTD., an English and Welsh corporation | |
75.
|
MGM MIRAGE ENTERTAINMENT AND SPORTS, a Nevada corporation | |
76.
|
MGM MIRAGE HOSPITALITY, LLC, a Nevada limited liability company | |
77.
|
MGM MIRAGE INTERNATIONAL, LLC, a Nevada limited liability company | |
78.
|
MGM MIRAGE INTERNATIONAL HONG KONG LIMITED, a Nevada corporation | |
79.
|
MGM MIRAGE INTERNATIONAL MARKETING, INC., a Nevada corporation | |
80.
|
MGM MIRAGE MACAO, LLC, a Nevada limited liability company | |
81.
|
MGM MIRAGE MACAU, LTD., an Isle of Man corporation | |
82.
|
MGM MIRAGE MANAGEMENT AND TECHNICAL SERVICES, LLC, a Nevada limited liability company |
83.
|
MGM MIRAGE MANUFACTURING CORP., a Nevada corporation | |
84.
|
MGM MIRAGE MARKETING, LTD, a Hong Kong corporation | |
85.
|
MGM MIRAGE ONLINE, HOLDINGS GUERNSEY, LIMITED, a Guernsey corporation | |
86.
|
MGM MIRAGE ONLINE, LLC, a Nevada limited liability company | |
87.
|
MGM MIRAGE OPERATIONS, INC., a Nevada corporation | |
88.
|
MGM MIRAGE RETAIL, a Nevada corporation | |
89.
|
MGM MIRAGE SINGAPORE HOLDINGS, a Mauritius corporation | |
90.
|
MGM MIRAGE UK HOLDING COMPANY, INC., a Nevada corporation | |
91.
|
MGMM INSURANCE COMPANY, a Vermont corporation | |
92.
|
MGMM INTERNATIONAL HOLDINGS, LTD., an Isle of Man corporation | |
93.
|
MGMM MACAU, LTD., an Isle of Man corporation | |
94.
|
MH, INC., a Nevada corporation | |
95.
|
MIRAGE LAUNDRY SERVICES CORP., a Nevada corporation | |
96.
|
MIRAGE LEASING CORP., a Nevada corporation | |
97.
|
MIRAGE RESORTS, INCORPORATED, a Nevada corporation | |
98.
|
MMNY LAND COMPANY, INC., a New York corporation | |
99.
|
MRG VEGAS PORTAL, INC., a Nevada corporation | |
100.
|
MRGS CORP., a Nevada corporation | |
101.
|
NEVADA LANDING PARTNERSHIP, an Illinois partnership | |
102.
|
NEW CASTLE CORP., a Nevada corporation | |
103.
|
NEW PRMA LAS VEGAS, INC., a Nevada corporation | |
104.
|
NEW YORK-NEW YORK HOTEL & CASINO, LLC, a Nevada limited liability company | |
105.
|
NEW YORK-NEW YORK TOWER, LLC, a Nevada limited liability company | |
106.
|
OASIS DEVELOPMENT COMPANY, INC., a Nevada corporation | |
107.
|
PINE HILLS DEVELOPMENT II, a Mississippi partnership | |
108.
|
PLANE TRUTH, LLC, a Nevada limited liability company | |
109.
|
PRMA LAND DEVELOPMENT COMPANY, a Nevada corporation | |
110.
|
PRMA, LLC, a Nevada limited liability company | |
111.
|
PROJECT CC, LLC, a Nevada limited liability company | |
112.
|
RAILROAD PASS INVESTMENT GROUP, a Nevada partnership | |
113.
|
RAMPARTS INTERNATIONAL, a Nevada corporation | |
114.
|
RAMPARTS, INC., a Nevada corporation | |
115.
|
RESTAURANT VENTURES OF NEVADA, INC., a Nevada corporation | |
116.
|
REVIVE PARTNERS, LLC, a Nevada limited liability company | |
117.
|
SIGNATURE TOWER I, LLC, a Nevada limited liability company | |
118.
|
SLOTS-A-FUN, INC., a Nevada corporation | |
119.
|
THE SIGNATURE CONDOMINIUMS, LLC, a Nevada limited liability company | |
120.
|
THE ▇▇▇▇▇ ▇▇▇▇ COMPANIES, a Nevada corporation | |
121.
|
THE MIRAGE CASINO-HOTEL, a Nevada corporation | |
122.
|
TREASURE ISLAND CORP., a Nevada corporation | |
123.
|
VDARA CONDO HOTEL, LLC, a Nevada limited liability company | |
124.
|
VICTORIA PARTNERS, a Nevada partnership | |
125.
|
VIDIAD, a Nevada corporation |
Exhibit A
Opinion matters covered by
Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP,
counsel to the Company
Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP,
counsel to the Company
(i) The Company has been duly incorporated and is validly existing and in good standing under
the laws of the State of Delaware.
(ii) The Company has all requisite corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus, but only to the extent the same are currently conducted and
operated, and to enter into and perform its obligations under this Agreement, the Indenture as
supplemented by the Supplemental Indenture and the Notes.
(iii) To the best of such counsel’s knowledge and information, the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each jurisdiction in which
such qualification is required, except where failure to be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and the Company Subsidiaries considered as one enterprise.
(iv) Each Company Subsidiary that is a corporation has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the jurisdiction of its incorporation.
Each Company Subsidiary that is a limited liability company or limited partnership has been duly
formed and is validly existing as a limited liability company or limited partnership, respectively,
in good standing under the laws of the jurisdiction of its formation. Each Company Subsidiary that
is a general partnership has been duly formed and is validly existing as a general partnership
under the laws of the jurisdiction of its formation. Each Company Subsidiary has all requisite
corporate, limited liability company or partnership power and authority to own, lease and operate
its properties, to conduct its business as described in the Registration Statement, the Pricing
Disclosure Package and the Prospectus but only to the extent the same are currently conducted and
operated, and to enter into and perform its obligations under (to the extent each is a party
thereto) this Agreement, the Indenture, the Supplemental Indenture and the Subsidiary Guarantees
and, to the best of such counsel’s knowledge and information, is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction in which such
qualification is required, except where failure to be in good standing would not have a material
adverse effect on the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and the Company Subsidiaries considered as one enterprise.
Assuming that the Company acquired such shares in good faith and without knowledge of any adverse
claim, to the best of such counsel’s knowledge, all of the issued and outstanding capital stock of
each Company Subsidiary (with the exception of MGM Grand Detroit, LLC (including its subsidiaries),
MGM Grand (Macao) Limited and MGM Grand Olympia Ltd. (in which the Company has approximately a 97%,
89.99% and 82.5% interest, respectively)) has been duly authorized and validly issued, is fully
paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and
clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity (except for liens
permitted under the Indenture as supplemented by the Supplemental Indenture).
(v) This Agreement has been duly authorized, executed and delivered by the Company and the
Subsidiary Guarantors.
(vi) To the best of such counsel’s knowledge and information, there are no material legal or
governmental proceedings pending or threatened other than any regularly scheduled re-licensing
proceedings now pending before any gaming authority and other than those disclosed in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus, the adverse
determination of which would have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the Company and the Company
Subsidiaries considered as a single enterprise.
(vii) The Registration Statement has become effective under the 1933 Act; any required filing
of each prospectus relating to the Notes (including the Prospectus) pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b) (without reference to
Rule 424(b)(8)); any required filing of each Issuer Free Writing Prospectus listed on Schedule C
hereto pursuant to Rule 433 has been made in the manner and within the time period required by Rule
433(d); and, to the best of such counsel’s knowledge and information, no stop order suspending the
effectiveness of the Registration Statement has been issued under the 1933 Act or, to the best of
such counsel’s knowledge and information, proceedings therefor initiated or threatened by the
Commission.
(viii) The Registration Statement, including without limitation the Rule 430B Information, the
Pricing Disclosure Package and the Prospectus, excluding the documents incorporated by reference
therein, and each amendment or supplement to the Registration Statement and the Prospectus,
excluding the documents incorporated by reference therein, as of their respective effective or
issue dates (including without limitation each deemed effective date with respect to the
Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations), other than the financial
statements and supporting schedules and other financial and statistical data included therein and
the Trustee’s Statement of Eligibility on Form T-1 (the “Form T-1”), as to which no opinion need be
rendered, complied as to form in all material respects with the requirements of the 1933 Act and
the 1933 Act Regulations.
(ix) The information in the Pricing Disclosure Package and the Prospectus under “Description
of the Notes” and in the Registration Statement under Item 15 to the extent that it constitutes
matters of law, summaries of legal matters, documents or proceedings, or legal conclusions, has
been reviewed by them and is correct in all material respects.
(x) To the best of such counsel’s knowledge and information, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments required to be described
or referred to in the Registration Statement, Pricing Disclosure Package or the Prospectus to be
filed as exhibits thereto or to documents incorporated therein by reference other than those
described or referred to therein or filed or incorporated by reference as exhibits thereto, the
descriptions thereof or references thereto are correct in all material respects, and no default
exists in the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument so described, referred to, filed or incorporated by reference, where the
consequences of such default would have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(xi) No authorization, approval, consent or order of any court or governmental authority or
agency is required in connection with the offering, issuance or sale of the Notes and the
Subsidiary Guarantees contemplated herein and in the Registration Statement, the Pricing Disclosure
Package and the Prospectus, except (a) as disclosed in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus, (b) such authorizations, approvals, consents or
orders under the Gaming Laws that have been obtained; or (c) such as may be required under the 1933
Act or the 1933 Act Regulations or state securities law or the qualification of the Indenture under
the 1939 Act; and, to the best of such counsel’s knowledge and information, the execution and
delivery of this Agreement, the Indenture, the Supplemental Indenture, the Notes and the Subsidiary
Guarantees, the performance of this Agreement, the Indenture as supplemented by the Supplemental
Indenture, the Notes and the Subsidiary Guarantees, and the consummation of the transactions
contemplated herein and therein and compliance by the Company and the Subsidiary Guarantors with
its or their obligations hereunder and thereunder will not: (1) conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any Company Subsidiary pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company
or any Company Subsidiary is a party or by which it or any of them may be bound, or to which any of
the property or assets of the Company or any Company Subsidiary is subject, which would result in a
material adverse effect on the condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company and the Company Subsidiaries considered as one enterprise; or
(2) result in any violation of the provisions of (A) any applicable law, administrative regulation
or administrative or court decree which would result in a material adverse effect on the condition,
financial or otherwise, or the earnings, business affairs or business prospects of the Company and
the Company Subsidiaries considered as one enterprise or (B) the charter or by-laws of the Company
or any Company Subsidiary.
(xii) The Indenture, the Supplemental Indenture and the Notes have been duly authorized,
executed and delivered by the Company and, assuming the due authorization, execution and delivery
of the Indenture and the Supplemental Indenture by the Trustee, the Indenture as supplemented by
the Supplemental Indenture, constitutes, and the Notes (when executed by the Company and
authenticated by the Trustee in the manner provided in the Indenture and delivered against payment
therefor) will constitute, the valid and binding agreements of the Company enforceable against the
Company in accordance with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar law relating to or affecting
creditors’ rights generally or by general equitable principles, and except that certain provisions
of the Indenture as supplemented by the Supplemental Indenture and the Notes may not be enforceable
in whole or in part under the laws of the State of Nevada, but the inclusion of such provisions
does not affect the validity of such documents and such documents contain adequate provisions for
enforcing payment of the monetary obligations of the Company under the Notes and for the practical
realization of the
rights and benefits afforded thereby, provided such enforcement is conducted in accordance
with the procedures established by the laws of the State of Nevada.
(xiii) The Indenture, the Supplemental Indenture and the Subsidiary Guarantees have been duly
authorized, executed and delivered by the Subsidiary Guarantors and (assuming the due
authorization, execution and delivery of the Supplemental Indenture by the Trustee) constitute
valid and binding agreements of the Indenture and the Subsidiary Guarantors enforceable against the
Subsidiary Guarantors in accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar law relating to or
affecting creditors’ rights generally or by general equitable principles, and except that certain
provisions of the above-referenced documents may not be enforceable in whole or in part under the
laws of the State of Nevada, but the inclusion of such provisions does not affect the validity of
such documents and such documents contain adequate provisions for enforcing payment of the monetary
obligations of the Subsidiary Guarantors under the Subsidiary Guarantees and for the practical
realization of the rights and benefits afforded thereby, provided such enforcement is conducted in
accordance with the procedures established by the laws of the State of Nevada.
(xiv) The Notes and the Subsidiary Guarantees are in the form contemplated by the Indenture as
supplemented by the Supplemental Indenture.
(xv) The Notes, the Subsidiary Guarantees and the Indenture as supplemented by the
Supplemental Indenture conform in all material respects to the descriptions thereof contained in
each of the Registration Statement, the Pricing Disclosure Package and the Prospectus.
(xvi) The Notes and the Subsidiary Guarantees constitute “Senior Indebtedness” with respect to
the Subordinated Notes and the Subordinated Mandalay Notes.
(xvii) The Indenture as supplemented by the Supplemental Indenture has been duly qualified
under the ▇▇▇▇ ▇▇▇.
(xviii) The documents incorporated by reference in the Prospectus (other than the financial
statements and supporting schedules and other financial and statistical data included therein, as
to which no opinion need be rendered), when they became effective or were filed with the
Commission, complied as to form in all material respects with the requirements of the 1933 Act or
the 1934 Act, as applicable, and the rules and regulations of the Commission thereunder.
(xix) Such counsel has participated in conferences with officers and other representatives of
the Company and the Subsidiary Guarantors, representatives of the independent registered public
accountants for the Company and the Subsidiary Guarantors and representatives of the Underwriters,
at which the contents of the Pricing Disclosure Package and the Prospectus and the related matters
were discussed and, although we are not passing upon, and do not assume any responsibility for, and
shall not be deemed to have independently verified, the accuracy, completeness or fairness of the
statements contained in the Pricing Disclosure Package and the Prospectus, on the basis of the
foregoing, no facts have come to our attention that would lead us to believe that (except for
financial statements and supporting schedules and other financial and statistical data included or
incorporated by reference therein and that part of the
Registration Statement which constitutes the Trustee’s Statement of Eligibility and
Qualification under the 1939 Act (Form T-1)) (i) the Registration Statement, at the time it became
effective on
[ ], contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading, (ii) the Pricing Disclosure Package, at the Applicable Time, included an untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they were made,
not misleading or (iii) the Prospectus, as of its date or as of the Closing Date, included or
includes an untrue statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading.
In giving its opinions required by subsection (b)(1) of Section 5,
Christensen, Glaser, Fink, Jacobs, Weil & ▇▇▇▇▇▇▇, LLP shall be entitled to rely on the opinions of
internal counsel to the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ with respect to Nevada law matters,
Butler, Snow, O’Mara, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC with respect to Mississippi law matters, Fox
Rothschild LLP with respect to New Jersey law matters, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC with respect to
Michigan law matters and ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Ltd. with respect to Illinois matters.
Exhibit B
Opinion matters covered by ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Nevada counsel to the Company
Nevada counsel to the Company
(i) Each of the domestic Company Subsidiaries identified as Nevada entities on Schedule C
hereto (the “Nevada Subsidiaries”) that is a corporation, has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Nevada. Each of the
Nevada Subsidiaries that is a limited liability company has been duly formed and is validly
existing as a limited liability company in good standing under the laws of the State of Nevada.
Each of the Nevada Subsidiaries that is a general partnership has been duly formed and is validly
existing as a general partnership under the laws of the State of Nevada.
(ii) Each of the Nevada Subsidiaries has all requisite corporate, limited liability company or
partnership power and authority to enter into, deliver and perform its specific obligations under
this Agreement, the Indenture, the Supplemental Indenture and its Subsidiary Guarantee, and each of
the Nevada Subsidiaries has taken all necessary corporate, limited liability company or partnership
action to authorize the execution and delivery by it of this Agreement, the Indenture, the
Supplemental Indenture and its Subsidiary Guarantee and the performance by it of this Agreement,
the Indenture as supplemented by the Supplemental Indenture and its Subsidiary Guarantee.
(iii) To the extent the Nevada Subsidiaries are parties thereto, the Indenture, the
Supplemental Indenture and the Subsidiary Guarantees have been duly and validly authorized, and the
Indenture, the Supplemental Indenture and such Subsidiary Guarantees have been executed and
delivered by the Nevada Subsidiaries.
(iv) To the best of such counsel’s knowledge, none of the Nevada Subsidiaries is in violation
of any term or provision of its articles of incorporation or bylaws, or articles of organization or
operating agreement, or partnership agreement, as the case may be. Except as disclosed in each of
the Registration Statement, the Pricing Disclosure Package and the Prospectus, to the best of such
counsel’s knowledge, no default exists and no event has occurred which with notice or lapse of
time, or both, would constitute a default in the due performance and observance of any express
term, covenant or condition by any of the Nevada Subsidiaries of any indenture, mortgage, deed of
trust, note or any other agreement or instrument to which any of the Nevada Subsidiaries is a party
or by which they or any of their assets or properties or businesses may be bound or affected, where
the consequences of such default would have a material adverse effect on the assets, properties,
business, results of operations, prospects or financial condition of the Company and its
subsidiaries considered as one enterprise.
(v) Each of the Company and the Nevada Subsidiaries has all authorizations, approvals,
consents, orders, licenses, certificates and permits required of or from any governmental or
regulatory body under the Nevada Gaming Control Act and the rules and regulations promulgated
thereunder (the “Nevada Gaming Laws”) (each, a “Nevada Permit”) to own, lease and license its
assets and properties and to conduct its business as described in each of the Registration
Statement, the Pricing Disclosure Package and the Prospectus, but only to the extent the same are
currently conducted and operated, and to issue the Notes and to execute the
Subsidiary Guarantees (except to the extent disclosed in each of the Registration Statement,
the Pricing Disclosure Package and the Prospectus with respect to the placement of restrictions on
the transfer of and entering into agreements not to encumber the Company’s interests in certain
Company Subsidiaries licensed or registered under the Nevada Gaming Laws). To the best of such
counsel’s knowledge, the Company and each of the Nevada Subsidiaries have fulfilled and performed
in all material respects all of their obligations with respect to Nevada Permits (except to the
extent disclosed in each of the Registration Statement, the Pricing Disclosure Package and the
Prospectus with respect to the placement of restrictions on the transfer of and entering into
agreements not to encumber the Company’s interests in certain Company Subsidiaries licensed or
registered under the Nevada Gaming Laws), and, to the best of such counsel’s knowledge, neither the
Company nor any Nevada Subsidiary is in violation of any term or provision of any such Nevada
Permits, nor has any event occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or which could result in any material impairment of the rights of
the holder of any such Nevada Permits.
(vi) To the extent the Nevada Subsidiaries are parties hereto, this Agreement has been duly
authorized, executed and delivered by the Nevada Subsidiaries. No Nevada Permits are required for
the performance of this Agreement or for the consummation of the transactions contemplated hereby
or any other transaction described in each of the Registration Statement, the Pricing Disclosure
Package and each of the Prospectus to be entered into prior to or contemporaneously with the sale
of the Notes and the execution of the Subsidiary Guarantees, except (i) as disclosed in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus (including the placement
of restrictions on the transfer of and the entering into agreements not to encumber the Company’s
interests in certain Company Subsidiaries licensed or registered under the Nevada Gaming Laws) and
(ii) for such Nevada Permits that have been obtained. The execution, delivery and performance of
this Agreement, the Indenture, the Supplemental Indenture, the Notes and the Subsidiary Guarantees
and the consummation of the transactions contemplated herein and therein and compliance by the
Nevada Subsidiaries with its or their obligations hereunder and thereunder will not: (1) conflict
with or constitute a breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of any Nevada Subsidiary pursuant to, any
contract, indenture, mortgage, loan agreement, note, lease or other instrument of which such
counsel has actual knowledge and to which any Nevada Subsidiary is a party or by which it or any of
them may be bound, or to which any of the property or assets of any Nevada Subsidiary is subject
which would result in a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Nevada Subsidiaries considered as one
enterprise; or (2) result in any violation of the provisions of (A) any applicable Nevada law or
administrative regulation or any administrative or court decree known to such counsel which would
result in a material adverse effect on the condition, financial or otherwise, or the earnings,
business affairs or business prospects of the Nevada Subsidiaries considered as one enterprise or
(B) the articles of incorporation or organization or by-laws or operating agreement, or partnership
agreement documents, of any Nevada Subsidiary.
(vii) Assuming (except as hereinafter provided with respect to the Notes) the due
authorization, execution and delivery by the Trustee of the Indenture and the Supplemental
Indenture, the Indenture and the Supplemental Indenture constitute, and the Notes, when executed by
the Company and authenticated by the Trustee in the manner provided in the
Indenture as supplemented by the Supplemental Indenture (assuming the due authorization,
execution and delivery of the Indenture and the Supplemental Indenture by the Trustee) and
delivered against payment of the purchase price therefor, will constitute, the valid and binding
agreements of the Company enforceable against the Company in accordance with their terms and
entitled to the benefits of the Indenture as supplemented by the Supplemental Indenture, except as
the enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar law relating to or affecting creditors’ rights generally or by general equitable
principles and except that certain provisions of the above-referenced documents may not be
enforceable in whole or in part under the laws of the State of Nevada, but the inclusion of such
provisions does not affect the validity of such documents and such documents contain adequate
provisions for enforcing payment of the material monetary obligations of the Company under the
Notes and for the practical realization of the rights and benefits afforded thereby, provided such
enforcement is conducted in accordance with the procedures established by the laws of the State of
Nevada.
(viii) The Indenture and the Supplemental Indenture (including the Subsidiary Guarantees
therein) have been duly authorized, executed and delivered by the Nevada Subsidiaries to the extent
they are parties thereto. Assuming the due authorization, execution and delivery of the Indenture
and the Supplemental Indenture by the Subsidiary Guarantors (other than by the Nevada Subsidiaries)
and, assuming the due authorization, execution and delivery thereof by the Trustee, the Indenture
(including the Subsidiary Guarantees therein) and the Supplemental Indenture constitute valid and
binding agreements of the Subsidiary Guarantors enforceable against such Subsidiary Guarantors in
accordance with their terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar law relating to or affecting creditors’
rights generally or by general equitable principles and except that certain provisions of the
above-referenced documents may not be enforceable in whole or in part under the laws of the State
of Nevada, but the inclusion of such provisions does not affect the validity of such documents and
such documents contain adequate provisions for enforcing payment of the material monetary
obligations of the Subsidiary Guarantors under the Indenture as supplemented by the Supplemental
Indenture and for the practical realization of the rights and benefits afforded thereby, provided
such enforcement is conducted in accordance with the procedures established by the laws of the
State of Nevada.
(ix) The
statements under the caption “Regulation and Licensing” regarding Nevada laws,
rules, regulations and legal conclusions (and the statements in the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2006 included in Exhibit 99 under the heading “Nevada
Government Regulation”) included in the Registration Statement, the Pricing Disclosure Package and
the Prospectus insofar as such statements constitute a summary of matters of Nevada law, a summary
of Nevada proceedings or Nevada legal conclusions, were true and correct in all material respects
as of the Applicable Time and as of the Closing Date.
Such counsel may qualify the opinions in (vii) and (viii) above by not expressing an opinion as to:
1. The reasonableness of any late charge or liquidated damages.
2. The effectiveness under all circumstances of broadly stated waivers whether or not directly
stated as a waiver.
3. The effectiveness of any provision directly or indirectly requiring that any consent,
modification, amendment or waiver be in writing.
4. Rights to indemnify and contribution that may be limited under applicable federal or state
securities laws.
Such counsel may also state that they express no opinion as to the laws of any jurisdiction other
than the State of Nevada and that pursuant to Regulation 8.130 of the Nevada Gaming Commission, the
transactions evidenced by this Agreement, the Indenture, the Supplemental Indenture, the Notes and
the Subsidiary Guarantees, and the performance of this Agreement and the Indenture as supplemented
by the Supplemental Indenture, must be reported to the appropriate gaming authorities who may
require rescission thereof if such transactions are inimical to the public health, safety, morals,
good order or general welfare of the people of the State of Nevada or would reflect, or tend to
reflect, discredit upon the State of Nevada or the gaming industry.
Exhibit C
Opinion matters covered by Fox Rothschild LLP,
New Jersey counsel to the Company
New Jersey counsel to the Company
(i) Each of MGM Grand Atlantic City, Inc. (“MGM-AC”) and MAC, CORP. (“MAC” and together with
MGM-AC, the “New Jersey Subsidiaries”) has been duly incorporated and is validly existing as a
corporation in good standing under the laws of New Jersey. All of the issued and outstanding
shares of capital stock of MGM-AC have been duly authorized and validly issued, are fully paid and
nonassessable and are directly owned of record by the Company. Assuming the Company acquired such
shares without knowledge of any security interest, lien, encumbrance or other adverse claim, to the
best of such counsel’s knowledge, the Company holds such shares free and clear of any security
interest, lien, encumbrance or other adverse claim. All of the issued and outstanding shares of
capital stock of MAC have been duly authorized and validly issued, are fully paid and nonassessable
and are directly owned of record by Mirage Resorts, Incorporated. Assuming Mirage Resorts,
Incorporated acquired such shares without knowledge of any security interest, lien, encumbrance or
other adverse claim, to the best of such counsel’s knowledge, Mirage Resorts, Incorporated holds
such shares free and clear of any security interest, lien, encumbrance or other adverse claim. To
such counsel’s knowledge, except as disclosed in each of the Registration Statement, the Pricing
Disclosure Package and the Prospectus, there is no outstanding subscription, option, warrant or
other right calling for the issuance of any share of stock of any New Jersey Subsidiary or any
security convertible into, exercisable for, or exchangeable for stock of such New Jersey
Subsidiary.
(ii) Each of the New Jersey Subsidiaries has all requisite corporate power and authority to
own, lease and license its assets and properties, to conduct its businesses as described in each of
the Registration Statement, the Pricing Disclosure Package and the Prospectus, but only to the
extent the same are currently conducted and operated, and to enter into and perform its obligations
under this Agreement, the Indenture as supplemented by the Supplemental Indenture and its
Subsidiary Guarantee.
(iii) Each New Jersey Subsidiary has taken all necessary corporate action to authorize the
execution and delivery of this Agreement, the Indenture, the Supplemental Indenture and its
Subsidiary Guarantee.
(iv) To such counsel’s knowledge, no New Jersey Subsidiary is in violation of any term or
provision of its charter or bylaws. Except as disclosed in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus, to such counsel’s knowledge, no default by either
New Jersey Subsidiary exists and no event has occurred which with notice or lapse of time, or both,
would constitute a default by either New Jersey Subsidiary in the due performance and observance of
any express term, covenant or condition of any indenture, mortgage, deed of trust, note or any
other agreement or instrument to which such New Jersey Subsidiary is a party or by which it or any
of its assets or properties or businesses may be bound or affected, where the consequences of such
default would have a material adverse effect on the assets, properties, business, results of
operations, prospects or financial condition of the Company and its subsidiaries considered as one
enterprise.
(v) The execution and delivery of this Agreement, the Indenture, the Supplemental Indenture
and the Subsidiary Guarantees, the performance of this Agreement, the Indenture as supplemented by
the Supplemental Indenture and the Subsidiary Guarantees and the consummation of the transactions
contemplated thereby will not (A) to such counsel’s knowledge, conflict with or result in a breach
of any of the terms and provisions of, or require the prepayment of any indebtedness under, or
constitute a default (or an event which with notice or lapse of time, or both, would constitute a
default) under or require consent under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the New Jersey Subsidiaries pursuant to the
terms of any material agreement, instrument, franchise, license or permit to which either New
Jersey Subsidiary is a party, or by which it or they may be bound or to which any of its or their
property or assets is subject or (B) violate any Laws of the State of New Jersey having
applicability to the Company, the Nevada Subsidiary or the New Jersey Subsidiaries or conflict with
any provision of the certificates of incorporation or by-laws of the New Jersey Subsidiaries or, to
such counsel’s knowledge, any judgment, decree, order, statute, rule or regulation of any New
Jersey court or any New Jersey public, governmental or regulatory agency or body having
jurisdiction over the Company, the Nevada Subsidiary or the New Jersey Subsidiaries or any of their
properties or assets, which, in the case of either clause (A) or (B) would have a material adverse
effect on the condition, financial or otherwise or the earnings, business affairs or business
prospects of the Company and its Subsidiaries, taken as a whole.
(vi) No authorization, approval, consent, order, license, certificate or permit (each, “a New
Jersey Permit”) required of or from any governmental or regulatory body under the New Jersey Casino
Control Act and the rules and regulations promulgated thereunder (the “New Jersey Gaming Laws”) is
required for the performance of this Agreement or for the consummation of the transactions
contemplated hereby or any other transaction described in each of the Registration Statement, the
Pricing Disclosure Package or the Prospectus to be entered into in connection therewith (including
the issuance of the Subsidiary Guarantees) except as disclosed in the Registration Statement, the
Pricing Disclosure Package or the Prospectus and except for such New Jersey Permits that have been
obtained. This Agreement, the Registration Statement, the Pricing Disclosure Package and the
Prospectus have been presented to any and all governmental agencies or authorities to the extent
required by any New Jersey Gaming Laws, and such documents and the transactions contemplated hereby
or thereby have been approved by or on behalf of such governmental agencies or authorities to the
extent required by any New Jersey Gaming Laws, and such approvals have not been revoked, modified
or rescinded.
(vii) The statements in each of the Registration Statement, Pricing Disclosure Package and
Prospectus under the caption “Regulation and Licensing” (and the statements in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31, 2006 included in Exhibit 99 under the
heading “New Jersey Government Regulation”), insofar as such statements constitute a summary of
matters of New Jersey law, a summary of New Jersey legal proceedings or New Jersey legal
conclusions, were true and correct in all material respects as of the Applicable Time and as of the
Closing Date.
(viii) To such counsel’s knowledge, there is no New Jersey action, suit or proceeding before
or by any court or governmental agency or body now pending, or threatened, against or affecting
the Company, the Nevada Subsidiary or the New Jersey Subsidiaries which, if adversely
determined, would have a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its Subsidiaries, taken as a
whole.
Exhibit D
Opinion matters covered by ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC,
Michigan counsel to the Company
Michigan counsel to the Company
(i) No authorization, approval, consent, order, license, certificate or permit (each, a
“Michigan Permit”) required of or from any governmental or regulatory body under the Michigan
Gaming Control Act and the rules and regulations promulgated thereunder (the “Michigan Gaming
Laws”) is required for the performance of this Agreement or for the consummation of the
transactions contemplated hereby or any other transaction described in each of the Registration
Statement, Pricing Disclosure Package or the Prospectus to be entered into in connection therewith
(including the issuance of the Subsidiary Guarantees) except as disclosed in the Registration
Statement, Pricing Disclosure Package or the Prospectus and except for such Michigan Permits that
have been obtained. The Michigan Gaming Laws do not require this Agreement, the Registration
Statement, Pricing Disclosure Package or the Prospectus or the transactions contemplated hereby or
thereby to be presented to or approved by the Michigan Gaming Control Board or any other
governmental agency or authority.
(ii) The statements under the caption “Regulation and Licensing” regarding Michigan laws,
rules, regulations and legal conclusions included in each of the Registration Statement, Pricing
Disclosure Package and the Prospectus and the statements in the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2006 included in Exhibit 99 under the heading “Michigan
Government Regulation and Taxation”, in each case as in effect at the date such statements were
made, were true and correct in all material respects as of the Applicable Time and as of the
Closing Date.
Exhibit E
Opinion matters covered by Butler, Snow, O’Mara, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC,
Mississippi counsel to the Company
Mississippi counsel to the Company
(i) Each of Beau Rivage Distribution Corp., Beau Rivage Resorts, Inc., Bungalow, Inc. and
Circus Circus Mississippi, Inc. (the “Mississippi Subsidiaries”) has been duly incorporated and is
validly existing as a corporation in good standing under the laws of Mississippi. All of the
issued and outstanding shares of capital stock of the Mississippi Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable and are directly owned of record by
the Company or a wholly owned, direct or indirect, domestic subsidiary of the Company. Assuming
the Company or such subsidiary acquired such shares in good faith and without knowledge of any
adverse claim, to such counsel’s knowledge, the Company or such subsidiary holds such shares free
and clear of any security interest, lien, encumbrance or other adverse claim. To such counsel’s
knowledge, except as disclosed in each of the Registration Statement, the Pricing Disclosure
Package and the Prospectus, there is no outstanding subscription, option, warrant or other right
calling for the issuance of any share of stock of any Mississippi Subsidiary or any security
convertible into, exercisable for, or exchangeable for stock of such Subsidiary.
(ii) Each of the Mississippi Subsidiaries has all requisite corporate power and authority to
own, lease and license its assets and properties, to conduct its businesses as described in the
Registration Statement, the Pricing Disclosure Package and the Prospectus, but only to the extent
the same are currently conducted and operated, and to enter into and perform its obligations under
this Agreement, the Indenture, the Supplemental Indenture and its Subsidiary Guarantee, to the
extent that it is a party thereto.
(iii) Each Mississippi Subsidiary has taken all necessary corporate action to authorize the
execution and delivery of this Agreement, the Indenture, the Supplemental Indenture and its
Subsidiary Guarantee, to the extent that it is a party thereto. The execution and delivery of this
Agreement, the Indenture, the Supplemental Indenture and the Subsidiary Guarantees and the
performance of this Agreement, the Indenture, the Supplemental Indenture and the Subsidiary
Guarantees by the respective parties thereto and the consummation of the transactions contemplated
herein and therein and compliance by the Mississippi Subsidiaries with their respective obligations
hereunder and thereunder will not: (1) conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or encumbrance upon any property or
assets of any Mississippi Subsidiary pursuant to, any contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which any Mississippi Subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or assets of any Mississippi
Subsidiary is subject which would result in a material adverse effect on the condition, financial
or otherwise, or the earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; or (2) result in any violation of the provisions of (A)
any applicable law, administrative regulation or administrative or court decree which would result
in a material adverse effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as one enterprise or
(B) the articles of incorporation or bylaws of any Mississippi Subsidiary.
(iv) To such counsel’s knowledge, no Mississippi Subsidiary is in violation of any term or
provision of its articles of incorporation or bylaws. Except as disclosed in each of the
Registration Statement, the Pricing Disclosure Package and the Prospectus, to such counsel’s
knowledge, no default exists and no event has occurred which with notice or lapse of time, or both,
would constitute a default in the due performance and observance of any express term, covenant or
condition by such Mississippi Subsidiary of any indenture, mortgage, deed of trust, note or any
other agreement or instrument to which such Mississippi Subsidiary is a party or by which it or any
of its assets or properties or businesses may be bound or affected, where the consequences of such
default would have a material adverse effect on the assets, properties, business, results of
operations, prospects or financial condition of the Company and its subsidiaries considered as one
enterprise.
(v) No authorization, approval, consent, order, license, certificate or permit (each, a
“Mississippi Permit”) required of or from any governmental or regulatory body under the Mississippi
Gaming Control Act and the rules and regulations promulgated thereunder (“Mississippi Gaming Laws”)
is required for the performance of this Agreement or for the consummation of the transactions
contemplated hereby or any other transaction described in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus to be entered into in connection therewith (including
the issuance of the Subsidiary Guarantees) except as disclosed in each of the Registration
Statement, the Pricing Disclosure Package and the Prospectus and except for such Mississippi
Permits that have been obtained. This Agreement, the Registration Statement, the Pricing
Disclosure Package and the Prospectus have been presented to any and all governmental agencies or
authorities to the extent required by any Mississippi Gaming Laws, and such documents and the
transactions contemplated hereby or thereby have been approved by or on behalf of such governmental
agencies or authorities to the extent required by any Mississippi Gaming Laws, or the requirement
for approval has been waived, and such approvals or waivers have not been revoked, modified or
rescinded.
(vi) The statements under the caption “Regulation and Licensing” regarding Mississippi laws,
rules, regulations and legal conclusions included in each of the Registration Statement, Pricing
Disclosure Package and the Prospectus and the statements in the Company’s Annual Report on Form
10-K for the fiscal year ended December 31, 2006 included in Exhibit 99 under the heading
“Mississippi Government Regulation”, in each case as in effect at the date such statements were
made, were true and correct in all material respects as of the Applicable Time and as of the
Closing Date.
(vii) The Indenture and the Supplemental Indenture (including the Subsidiary Guarantees
therein) have been validly executed and delivered by the respective Mississippi Subsidiaries.
(viii) The Mississippi Subsidiaries are not, nor will they be upon the execution and delivery
of the Indenture and the Supplemental Indenture (including the Subsidiary Guarantees therein),
subject to regulation under any Mississippi statute or regulation limiting their ability to incur
indebtedness for borrowed money, except the Mississippi Gaming Laws and any rules, ordinances or
regulations of local regulatory authorities, the provisions of which have been complied with by the
Mississippi Subsidiaries.
Exhibit F
Opinion matters covered by ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
The matters set forth in (v) (as to Delaware corporations), (vii), (viii), (xii), (xiii),
(xiv), (xv), (xvii) and (xix), of Exhibit A. In giving its opinions required by
subsection (a)(6) of ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP shall be entitled to
rely on the opinions of internal counsel to the Company and ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ with respect
to Nevada law matters, Butler, Snow, O’Mara, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC with respect to Mississippi
law matters, Fox Rothschild LLP with respect to New Jersey law matters, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ PLLC with
respect to Michigan law matters and ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Ltd. with respect to Illinois matters.
Exhibit G
Opinion matters covered by ▇▇▇▇▇ ▇▇▇▇▇▇
(i) All of the issued and outstanding shares of capital stock of each of the domestic Company
Subsidiaries identified as Nevada entities on Schedule C hereto (the “Nevada Subsidiaries”)
have been duly authorized and validly issued, are fully paid and nonassessable and are directly
owned of record by the Company or one of the Nevada Subsidiaries. All of the issued and
outstanding membership interests of each of the Nevada Subsidiaries that is a limited liability
company have been duly authorized and validly issued, are fully paid and nonassessable and are
directly owned of record by the Company or one of the Nevada Subsidiaries. Assuming that the
Company or its subsidiary acquired such shares and interests in good faith and without knowledge of
any adverse claim, to the best of such counsel’s knowledge, the Company or its subsidiary holds
such shares and interests and any interests in any of the Nevada Subsidiaries that is a
partnership, free and clear of any security interest, lien, encumbrance or other adverse claim
except for liens permitted under the Indenture as supplemented by the Supplemental Indenture as
described under “Limitations on Liens” in the Prospectus. To the best of such counsel’s knowledge,
except as disclosed in each of the Registration Statement, the Pricing Disclosure Package and the
Prospectus, there is no outstanding subscription, option, warrant or other right calling for the
issuance of any share of stock of any of the Nevada Subsidiaries or any security convertible into,
exercisable for, or exchangeable for stock of any Nevada Subsidiary.
(ii) Each of the Nevada Subsidiaries has all requisite corporate, limited liability company or
partnership power and authority to own, lease and license its assets and properties, to conduct its
businesses as described and to the extent described in each of the Registration Statement, the
Pricing Disclosure Package and the Prospectus, but only to the extent the same are currently
conducted and operated and to enter into and perform its obligations under this Agreement, the
Indenture as supplemented by the Supplemental Indenture and its Subsidiary Guarantee, to the extent
that it is a party hereto or thereto.
Exhibit H
Opinion matters covered by ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Ltd.
Illinois Counsel to the Company
Illinois Counsel to the Company
1. The statements under the caption “Regulation and Licensing” included in each of the
Registration Statement, Pricing Disclosure Package and the Prospectus and the statements in the
Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2005 included in
Exhibit 99 under the heading “Illinois Government Regulation”, to the extent such statements have
been incorporated by reference into the Registration Statement, the Pricing Disclosure Package and
the Prospectus, insofar as such statements constitute a summary of matters of Illinois law, a
summary of Illinois proceedings or Illinois legal conclusions, were true and correct in all
material respects as of the Applicable Time and as of the Closing Date.