Exhibit-1
EXECUTION COPY
MGM MIRAGE
(a Delaware corporation)
7.625% Senior Notes Due 2017
UNDERWRITING AGREEMENT
Dated: December 13, 2006
TABLE OF CONTENTS
UNDERWRITING AGREEMENT
Page
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SECTION 1. Representations and Warranties by the Company and Subsidiary
Guarantors................................................ 3
SECTION 2. Sale and Delivery to Underwriters; Closing................... 12
SECTION 3. Covenants of the Company..................................... 13
SECTION 4. Payment of Expenses.......................................... 17
SECTION 5. Conditions of Underwriters' Obligations...................... 17
SECTION 6. Indemnification.............................................. 20
SECTION 7. Representations, Warranties and Agreements to Survive
Delivery.................................................. 24
SECTION 8. Termination of Agreement..................................... 24
SECTION 9. Default by One or More of the Underwriters................... 24
SECTION 10. Notices...................................................... 25
SECTION 11. Parties...................................................... 25
SECTION 12. Governing Law and Time....................................... 25
SECTION 13. Effect of Headings........................................... 26
SECTION 14. Agreement Regarding Tracinda................................. 26
SECTION 15. No Fiduciary Responsibility.................................. 26
SECTION 16. Entire Agreement............................................. 26
MGM MIRAGE
(A DELAWARE CORPORATION)
$750,000,000 7.625% Senior Notes due 2017
UNDERWRITING AGREEMENT
December 13, 2006
Barclays Capital Inc.
as Representative of the several Underwriters
c/o Barclays Capital Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
MGM MIRAGE, a Delaware corporation (the "COMPANY"), confirms its agreement
with Barclays Capital Inc. ("BARCLAYS") 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 Barclays 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 7.625% Senior Notes due 2017 (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 December 11, 2006 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 6:40 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
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which are incorporated by reference in or otherwise deemed by the 1933 Act
Regulations to be a 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 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.
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(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 9 3/4%
Senior Subordinated Notes due 2007 and 8 3/8% 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 six 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 December 21, 2006 (unless postponed in accordance with
the provisions of Section 10) (such time and date of payment and delivery being
herein called the "CLOSING TIME").
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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. Barclays, 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
13
Regulations without regard to the proviso therein and otherwise in accordance
with Rules 456(b) and 457(r) of the 1933 Act Regulations.
(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
14
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 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.
15
(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 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.
16
(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").
(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
17
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:
(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
18
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 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
19
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, 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.
20
(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 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 7(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
21
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 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
22
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 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 total price at which 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
23
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, 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
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:
24
(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
(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 Barclays Capital Inc.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
25
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 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 EAST DEVELOPMENT, LLC, a Nevada limited liability company
17. CITYCENTER VEER WEST DEVELOPMENT, LLC, a Nevada limited liability company
18. COLORADO BELLE CORP., a Nevada corporation
19. COUNTRY STAR LAS VEGAS, LLC, a Nevada limited liability company
20. DESTRON, INC., a Nevada corporation
21. DIAMOND GOLD, INC., a Nevada corporation
22. EDGEWATER HOTEL CORPORATION, a Nevada corporation
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 MIRAGE ADVERTISING, INC., a Nevada corporation
53. MGM MIRAGE AIRCRAFT HOLDINGS, LLC, a Nevada limited liability company
54. MGM MIRAGE AVIATION CORP., a Nevada corporation
55. MGM MIRAGE CORPORATE SERVICES, a Nevada corporation
56. MGM MIRAGE DESIGN GROUP, a Nevada corporation
57. MGM MIRAGE DEVELOPMENT, LLC, a Nevada limited liability company
58. MGM MIRAGE ENTERTAINMENT AND SPORTS, a Nevada corporation
59. MGM MIRAGE INTERNATIONAL MARKETING, INC., a Nevada corporation
60. MGM MIRAGE MANAGEMENT AND TECHNICAL SERVICES, LLC, a Nevada limited
liability company
61. MGM MIRAGE MANUFACTURING CORP., a Nevada corporation
62. MGM MIRAGE OPERATIONS, INC., a Nevada corporation
63. MGM MIRAGE RETAIL, a Nevada corporation
64. MH, INC., a Nevada corporation
65. M.I.R. TRAVEL, a Nevada corporation
66. THE MIRAGE CASINO-HOTEL, a Nevada corporation
67. MIRAGE LAUNDRY SERVICES CORP., a Nevada corporation
68. MIRAGE LEASING CORP., a Nevada corporation
69. MIRAGE RESORTS, INCORPORATED, a Nevada corporation
70. MMNY LAND COMPANY, INC., a New York corporation
71. MRG VEGAS PORTAL, INC., a Nevada corporation
72. MRGS CORP., a Nevada corporation
73. M.S.E. INVESTMENTS, INCORPORATED, a Nevada corporation
74. 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
75. NEW CASTLE CORP., a Nevada corporation
76. NEW PRMA LAS VEGAS, INC., a Nevada corporation
77. NEW YORK-NEW YORK HOTEL & CASINO, LLC, a Nevada limited liability company
78. NEW YORK-NEW YORK TOWER, LLC, a Nevada limited liability company
79. OASIS DEVELOPMENT COMPANY, INC., a Nevada corporation
80. PLANE TRUTH, LLC, a Nevada limited liability company
81. THE PRIMADONNA COMPANY, 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. 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
94. 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:
BARCLAYS CAPITAL INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
For itself and as Representative of the
other Underwriters named in Schedule A
hereto.
SCHEDULE A
UNDERWRITERS
PRINCIPAL
AMOUNT OF
UNDERWRITER NOTES
----------- ------------
Barclays Capital Inc. $120,000,000
BNP Paribas Securities Corp. $120,000,000
Wachovia Capital Markets, LLC $120,000,000
UBS Securities LLC $120,000,000
Greenwich Capital Markets, Inc. $ 60,000,000
Citigroup Global Markets Inc. $ 45,000,000
Deutsche Bank Securities Inc. $ 45,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 45,000,000
Commerzbank Capital Markets Corp. $ 30,000,000
Daiwa Securities America Inc. $ 30,000,000
▇▇▇▇▇▇▇▇▇ & Company, Inc. $ 15,000,000
SCHEDULE B
MGM MIRAGE
$750,000,000 OF 7.625% SENIOR NOTES DUE 2017
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 99.675% of the principal amount thereof plus accrued interest, if
any, from the date of issuance.
3. The interest rate on the Notes shall be 7.625% per annum.
SCHEDULE C
ISSUER FREE WRITING PROSPECTUS
Issuer Free Writing Prospectus Filed Pursuant to Rule 433
supplementing the
Preliminary Prospectus Supplement dated December 13, 2006
Registration No. 333-133925
Pricing Term Sheet
December 13, 2006
Issuer: MGM MIRAGE
Size: $750,000,000
Description: Senior Notes
Maturity: January 15, 2017
Coupon: 7.625%
Public Offering Price: 100% of face amount, plus accrued interest, if any
Net Proceeds: $747,562,500 (before transaction expenses)
Yield: 7.625%
Interest Payment Dates: January 15 and July 15 commencing July 15, 2007
Redemption Provisions: Make-whole call at the Adjusted Treasury Rate plus 50
basis points
Settlement date: December 21, 2006 (T+6)
CUSIP: 552953 BB 6
Ratings: Ba2 by ▇▇▇▇▇'▇ Investors Service, Inc., BB by Standard
& Poor's Ratings Services
Bookrunners: Barclays Capital, BNP PARIBAS, Wachovia Securities,
UBS Investment Bank
Co-managers: Citigroup, Commerzbank Corporates & Markets, Daiwa
Securities America Inc., Deutsche Bank Securities,
▇▇▇▇▇▇▇▇▇ & Company, JPMorgan, RBS Greenwich Capital
UNDERWRITER PRINCIPAL AMOUNT
----------- ----------------
Allocation: Barclays Capital Inc. $120,000,000
BNP Paribas Securities Corp. 120,000,000
Wachovia Capital Markets, LLC 120,000,000
UBS Securities LLC 120,000,000
Greenwich Capital Markets, Inc. 60,000,000
Citigroup Global Markets Inc. 45,000,000
Deutsche Bank Securities Inc. 45,000,000
▇.▇. ▇▇▇▇▇▇ Securities Inc. 45,000,000
Commerzbank Capital Markets Corp. 30,000,000
Daiwa Securities America Inc. 30,000,000
▇▇▇▇▇▇▇▇▇ & 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, Barclays Capital Inc., an
underwriter, will arrange to send you the prospectus if you request it by
calling toll free ▇▇▇-▇▇▇-▇▇▇▇ Ext. 5576.
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 EAST DEVELOPMENT, LLC, a Nevada limited liability company
17. CITYCENTER VEER WEST DEVELOPMENT, LLC, a Nevada limited liability company
18. COLORADO BELLE CORP., a Nevada corporation
19. COUNTRY STAR LAS VEGAS, LLC, a Nevada limited liability company
20. DESTRON, INC., a Nevada corporation
21. DIAMOND GOLD, INC., a Nevada corporation
22. EDGEWATER HOTEL CORPORATION, a Nevada corporation
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 OLYMPIA LTD., an English and Welsh corporation
60. MGM GRAND RESORTS, LLC, a Nevada limited liability company
61. MGM GRAND RESORTS DEVELOPMENT (F.K.A. MANDALAY DEVELOPMENT), a Nevada
corporation
62. MGM GRAND-CAPITALAND PTE LTD, a Singapore corporation
63. MGM MIRAGE ADVERTISING, INC., a Nevada corporation
64. MGM MIRAGE AIRCRAFT HOLDINGS, LLC, a Nevada limited liability company
65. MGM MIRAGE AVIATION CORP., a Nevada corporation
66. MGM MIRAGE CHINA HOLDINGS LIMITED, a Hong Kong corporation
67. MGM MIRAGE CORPORATE SERVICES, a Nevada corporation
68. MGM MIRAGE DESIGN GROUP, a Nevada corporation
69. MGM MIRAGE DEVELOPMENT, LLC, a Nevada corporation
70. MGM MIRAGE DEVELOPMENT, LTD., an English and Welsh corporation
71. MGM MIRAGE ENTERTAINMENT AND SPORTS, a Nevada corporation
72. MGM MIRAGE INTERNATIONAL, LLC, a Nevada limited liability company
73. MGM MIRAGE INTERNATIONAL HONG KONG LIMITED, a Nevada corporation
74. MGM MIRAGE INTERNATIONAL MARKETING, INC., a Nevada corporation
75. MGM MIRAGE MACAO, LLC, a Nevada limited liability company
76. MGM MIRAGE MACAU, LTD., an Isle of Man corporation
77. MGM MIRAGE MANAGEMENT AND TECHNICAL SERVICES, LLC, a Nevada limited
liability company
78. MGM MIRAGE MANUFACTURING CORP., a Nevada corporation
79. MGM MIRAGE MARKETING, LTD, a Hong Kong corporation
80. MGM MIRAGE ONLINE, HOLDINGS GUERNSEY, LIMITED, a Guernsey corporation
81. MGM MIRAGE ONLINE, LLC, a Nevada limited liability company
82. MGM MIRAGE OPERATIONS, INC., a Nevada corporation
83. MGM MIRAGE RETAIL, a Nevada corporation
84. MGM MIRAGE SINGAPORE HOLDINGS, a Mauritius corporation
85. MGM MIRAGE UK HOLDING COMPANY, INC., a Nevada corporation
86. MGMM INSURANCE COMPANY, a Vermont corporation
87. MGMM INTERNATIONAL HOLDINGS, LTD., an Isle of Man corporation
88. MGMM MACAU, LTD., an Isle of Man corporation
89. MH, INC., a Nevada corporation
90. MIRAGE LAUNDRY SERVICES CORP., a Nevada corporation
91. MIRAGE LEASING CORP., a Nevada corporation
92. MIRAGE RESORTS, INCORPORATED, a Nevada corporation
93. MMNY LAND COMPANY, INC., a New York corporation
94. MRG VEGAS PORTAL, INC., a Nevada corporation
95. MRGS CORP., a Nevada corporation
96. NEVADA LANDING PARTNERSHIP, an Illinois partnership
97. NEW CASTLE CORP., a Nevada corporation
98. NEW PRMA LAS VEGAS, INC., a Nevada corporation
99. NEW YORK-NEW YORK HOTEL & CASINO, LLC, a Nevada limited liability company
100. NEW YORK-NEW YORK TOWER, LLC, a Nevada limited liability company
101. OASIS DEVELOPMENT COMPANY, INC., a Nevada corporation
102. PINE HILLS DEVELOPMENT II, a Mississippi partnership
103. PLANE TRUTH, LLC, a Nevada limited liability company
104. PRMA LAND DEVELOPMENT COMPANY, a Nevada corporation
105. PRMA, LLC, a Nevada limited liability company
106. PROJECT CC, LLC, a Nevada limited liability company
107. RAILROAD PASS INVESTMENT GROUP, a Nevada partnership
108. RAMPARTS INTERNATIONAL, a Nevada corporation
109. RAMPARTS, INC., a Nevada corporation
110. RESTAURANT VENTURES OF NEVADA, INC., a Nevada corporation
111. REVIVE PARTNERS, LLC, a Nevada limited liability company
112. SIGNATURE TOWER I, LLC, a Nevada limited liability company
113. SLOTS-A-FUN, INC., a Nevada corporation
114. THE SIGNATURE CONDOMINIUMS, LLC, a Nevada limited liability company
115. THE ▇▇▇▇▇ ▇▇▇▇ COMPANIES, a Nevada corporation
116. THE MIRAGE CASINO-HOTEL, a Nevada corporation
117. THE PRIMADONNA COMPANY, LLC, a Nevada limited liability company
118. TREASURE ISLAND CORP., a Nevada corporation
119. VICTORIA PARTNERS, a Nevada partnership
120. VIDIAD, a Nevada corporation
EXHIBIT A
OPINION MATTERS COVERED BY
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 their 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 this Agreement, the Indenture, the
Supplemental Indenture and the Subsidiary Guarantees and, to the best of their
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 their 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 Securities (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 their 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 their 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," "Description of Our Long Term Debt" and
"Description of Debt Securities," 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 their 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 their 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 1939 Act.
(xiiii) The documents incorporated by reference in the Prospectus (other
than the financial statements and supporting schedules 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.
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
(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,
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, 2005
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, the performance of this Agreement, 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
(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 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 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 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 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 New Jersey Subsidiary 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) 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 is
a party or by which they may be bound or to which any of 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 under the caption "Regulation and Licensing" regarding
New Jersey 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,
2005 included in Exhibit 99 under the heading "New Jersey Government
Regulation") included in each of the Registration Statement, Pricing Disclosure
Package and Prospectus, 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
(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. This Agreement, the Registration Statement, Pricing
Disclosure Package or the Prospectus have been presented to any and all
governmental agencies or authorities to the extent required by any Michigan
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 Michigan Gaming Laws, and such
approvals have not been revoked, modified or rescinded.
(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, 2005 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.
EXHIBIT E
OPINION MATTERS COVERED BY BUTLER, SNOW, O'MARA, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, PLLC,
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. Based upon
certificates of the Mississippi Subsidiaries and such counsel's review of the
articles of incorporation, bylaws, minute books and stock record books of the
Mississippi Subsidiaries, 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 this Agreement, the
Indenture, the Supplemental Indenture and its Subsidiary Guarantee, 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 thereto.
(iii) Based upon certificates of the Mississippi Subsidiaries and such
counsel's review of the articles of incorporation, bylaws and minute books of
the Mississippi Subsidiaries, 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. The execution, delivery and performance of this Agreement, the
Indenture, the Supplemental Indenture and the Subsidiary Guarantees and the
consummation of the transactions contemplated herein and therein and compliance
by the Mississippi 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 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 Mississippi 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 Mississippi Subsidiaries
considered as one enterprise or (B) the charter or by-laws 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 the Registration Statement 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, 2005 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 (including the Subsidiary Guarantees therein) and the
Supplemental Indenture have been validly executed and delivered by the
respective Mississippi Subsidiaries.
(viii) The Mississippi Subsidiaries are not, nor will 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.
EXHIBIT F
OPINION MATTERS COVERED BY ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
The matters set forth in (v) (as to Delaware corporations), (vii), (viii),
(xii), (xiii), (xiv), (xv) and (xvii), 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 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 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
1. The statements under the caption "Regulation and Licensing" regarding
Illinois 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, 2005 included in Exhibit 99 under the heading "Illinois Government
Regulation", were true and correct in all material respects as of the Applicable
Time and as of the Closing Date.
2